Jones v. Smith , 2010 Ohio 4461 ( 2010 )

[Cite as Jones v. Smith , 2010-Ohio-4461.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
LAWRENCE COUNTY
IN THE MATTER OF: :
:
DEREK R. JONES, : Case No. 10CA4
:
Petitioner-Appellee, :
: Released: September 16, 2010
vs. :
:
SASHA A. SMITH, : DECISION AND JUDGMENT
: ENTRY
Respondent-Appellant. :
_____________________________________________________________
APPEARANCES:
Brigham M. Anderson, Ironton, Ohio, for Respondent-Appellant.
Brenda K. Neville, Chesapeake, Ohio, for Petitioner-Appellee.
_____________________________________________________________
McFarland, P.J.:
{¶1} Respondent-Appellant, Sasha A. Smith, appeals the decision
of the Lawrence County Court of Common Pleas, Probate-Juvenile Division.
The trial court affirmed the magistrate’s decision granting the request of
Petitioner-Appellee, Derek R. Jones, to change the surname of the parties’
child. Smith argues that the court’s decision was error because, in granting
the name change, the court did not properly follow the factors listed in Bobo
v. Jewell and In re Willhite and instead created a new test. We disagree.
Because the trial court performed the required best-interest analysis and did
Lawrence App. No. 10CA4 2
not abuse its discretion in doing so, we overrule Smith's assignment of error
and affirm the decision of the court below.
I. Facts
{¶2} Appellant Smith gave birth to a child in March of 2008; at the
time, she was unmarried. Smith gave the child her surname and did not list
the name of the father on the birth certificate. Approximately three months
later, Appellee Jones initiated judicial proceedings to establish paternity and
to determine associated issues, including child support and parenting time.
Jones also requested that the child’s surname be changed to that of his own.
The matter proceeded to trial before the magistrate and all matters, except
the name change, were agreed upon or decided by the court.
{¶3} After taking the matter under advisement, the magistrate
issued a decision finding it was in the child’s best interest to change the
child’s surname from Smith to Jones. Smith filed objections to the
magistrate’s decision and the matter was scheduled for hearing before the
trial court. After a full hearing, the trial court subsequently upheld the
magistrate’s decision. Smith then appealed that decision to this court.
{¶4} We considered the appeal in Jones v. Smith, 4th Dist. No.
09CA9, 2010-Ohio-131. Finding that certain language in the trial court's
judgment entry created ambiguity as to whether it had conducted a de novo
Lawrence App. No. 10CA4 3
or a deferential review of the magistrate’s decision, we remanded. Upon
remand, the trial court filed a judgment entry which, in no uncertain terms,
makes it clear that it conducted an independent and non-deferential review
of the magistrate's decision. Smith appealed once again and we now
consider the appeal on its merits.
II. Assignment of Error
THE TRIAL COURT'S DECISION TO CHANGE THE SURNAME
OF THE MINOR CHILD WAS BASED UPON INSUFFICIENT
EVIDENCE AND IS CONTRARY TO LAW.
III. Standard of Review
{¶5} When reviewing a decision that a child's name should or
should not be changed, the reviewing court cannot simply substitute its
judgment for that of the trial court. Jarrells v. Epperson (1996), 115 Ohio
App.3d 69, 71, 684 N.E.2d 718. Such determination is within the sound
discretion of the trial court and should only be reversed when that discretion
is abused. Id. See, also, In re Change of Name of Simers, 4th Dist. No.
06CA30, 2007-Ohio-3232, at ¶8; In re Change of Name of Dotson, 4th Dist.
No. 04CA5, 2005-Ohio-367, at ¶6. An abuse of discretion is more than an
error of judgment; it is an attitude on the part of the court that is
unreasonable, unconscionable, or arbitrary. Id.Lawrence App. No. 10CA4 4
IV. Legal Analysis
{¶6} In her sole assignment of error, Smith argues the trial court's
decision to allow her child’s name change is contrary to law. The Supreme
Court of Ohio provided the framework for such decisions in Bobo v. Jewell
(1988), 38 Ohio St.3d 330, 528 N.E.2d 180, and in In re Willhite, 85 Ohio
St.3d 28, 1999-Ohio-201, 706 N.E.2d 778.
{¶7} “In Ohio, name changes for minors and adults are governed
by R.C. 2717.01(A). R.C. 2717.01(B), which governs name changes for
minors, provides that ‘[a]n application for change of name may be made on
behalf of a minor by either of the minor's parents * * *. [I]n addition to the
notice and proof required pursuant to division (A) of this section, the consent
of both living, legal parents of the minor shall be filed, or notice of the
hearing shall be given to the parent or parents not consenting * * *.’”
Willhite at 30.
{¶8} “Further, the standard for deciding whether to permit a name
change is ‘proof that * * * the facts set forth in the application show
reasonable and proper cause for changing the name of the applicant.’” Id.,quoting R.C. 2717.01(A).
Lawrence App. No. 10CA4 5
{¶9} Bobo and Willhite determined that a name change request
requires a best-interest-of-the-child analysis. Willhite lists the relevant
factors a trial court should consider:
{¶10} “In determining whether a change of a minor's surname is in
the best interest of the child, the trial court should consider the following
factors: the effect of the change on the preservation and development of the
child's relationship with each parent; the identification of the child as part of
a family unit; the length of time that the child has used a surname; the
preference of the child if the child is of sufficient maturity to express a
meaningful preference; whether the child's surname is different from the
surname of the child's residential parent; the embarrassment, discomfort, or
inconvenience that may result when a child bears a surname different from
the residential parent's; parental failure to maintain contact with and support
of the child; and any other factor relevant to the child's best interest.”
Whillhite, at paragraph two of the syllabus.
{¶11} Further, the Court warned against giving undue weight to the
father’s interest because of custom or tradition. “We caution the courts,
however, to refrain from defining the best-interest-of-the-child test as
purporting to give primary or greater weight to the father's interest in having
the child bear the paternal surname. While it may be a custom to name a
Lawrence App. No. 10CA4 6
child after the father, giving greater weight to the father's interest fails to
consider that, where the parents have never been married, the mother has at
least an equal interest in having the child bear the maternal surname. In
these times of parental equality, arguing that the child of unmarried parents
should bear the paternal surname based on custom is another way of arguing
that it is permissible to discriminate because the discrimination has endured
for many years.” Bobo at 334.
{¶12} In the case sub judice, the trial court cited both Bobo and
Willhite and engaged in the required best-interest analysis. First, the court
stated that because of the very young age of the child (not yet two years old
at the time of the court's decision), the child's preference was not relevant.
Further, the court found that the length of time the child had had the surname
Smith did not weigh against a name change. The court reasoned that if his
surname was changed, because of the child's young age he would be less
likely to suffer from embarrassment or discomfort because he will have
grown up knowing only one last name. The court also stated that, because
many of his future classmates would likely have last names which are
different from their custodial parents, it is unlikely that the child would have
to suffer embarrassment on that score. Further, the court found that both
parents are bonding with the child and that they would continue to love and
Lawrence App. No. 10CA4 7
bond with the child regardless of the child's legal name. The final factor the
trial court considered, and the one to which it gave the most weight, was the
surname in the context of identifying the child as part of a family unit.
{¶13} During the hearing, Smith testified that the child's first and
middle names were family names derived from her lineage. Addressing this
point, the trial court stated the following:
{¶14} “At this point and [sic] time, the child's name does not have
any connection to his father. The Court finds that even though the mother is
the residential parent, this child needs to also have a familial connection with
his father's family lineage. This factor is especially true given the strong
family connection of the first and middle names. This child will benefit
from having two identifiable family units to his name: one with his mother
and one with his father. The father can create a bond with this child, but will
lack the ‘family unit’ that could be established by the child having his
surname. This way the child will be able to reflect upon his first and middle
name as being derived from his mother's family and his last name derived
from his father's. This factor weighs heavily in the mind of the Court, is
persuasive and outweighs any negative impact raised by either party.”
{¶15} Smith argues that the trial court gave greater weight to Jones’
wishes simply because he is the father, and otherwise ignored the guidelines
Lawrence App. No. 10CA4 8
set forth in Bobo and Willhite. Instead, Smith contends that the trial court
adopted a new test. “According to the Trial Court the new test will be if the
child in question is an infant and the mother chose the child's first name then
the child shall bear the father's surname in order to identify with his ‘family
unit.’” We disagree with this characterization of the trial court's decision.
{¶16} As previously stated, and contrary to Smith’s argument, the
trial court did explicitly consider the relevant factors cited in Bobo and
Willhite. Further, the court articulated a reasonable basis for its decision,
and that decision does not simply give greater weight to Smith due to custom
or tradition. The trial court's decision does not, as Smith contends, amount
to a new best-interest test, requiring that when the mother gives the child's
first and middle name, the father must be able to give the surname. Instead,
the decision simply states that, in the particular facts and circumstances of
this case, and after considering all the relevant best-interest factors, because
the name change will enable the child to better identify himself as part of a
family unit, it is in the child's best interest to change his surname to Jones.
{¶17} It is not the role of this court to substitute its judgment for that
of the court below. Whether or not we would have arrived at a different
conclusion if we were undertaking a de novo review is not the issue. Here,
the trial court's decision was neither unreasonable, unconscionable, nor
Lawrence App. No. 10CA4 9
arbitrary. As such, it was not an abuse of discretion and we must overrule
Smith’s sole assignment of error.
JUDGMENT AFFIRMED.
Lawrence App. No. 10CA4 10
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and that the
Appellee recover of Appellant costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing
the Lawrence County Court of Common Pleas, Probate-Juvenile Division, to
carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of
the date of this entry.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Exceptions.
Kline, J. and Abele, J.: Concur in Judgment and Opinion.
For the Court,
BY: _________________________
Matthew W. McFarland
Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.