In re J.A.K. ( 2012 )

[Cite as In re J.A.K., 2012-Ohio-3403.]
IN THE COURT OF APPEALS OF GREENE COUNTY, OHIO
:
IN THE MATTER OF THE CHANGE
OF NAME OF J.A.K., : C.A. CASE NO. 11CA0068
A MINOR
: T.C. CASE NO. 10800CN-11-100
: (Civil Appeal from Common
Pleas Court, Probate Div.)
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OPINION
Rendered on the 27th day of July, 2012.
.........
Thomas G. Eagle, Atty. Reg. No. 0034492, 3386 N. State Rt. 123, Lebanon, OH 45036
Attorney for Petitioner-Appellant
Harry G. Beyoglides, Jr., Atty. Reg. No. 0018959, 130 W. Second Street, Suite 1900,
Dayton, OH 45402-1506
Attorney for Respondent-Appellee
.........
GRADY, P.J.:
{¶ 1} Petitioner T.E. appeals from an order denying his application for change of
name of his minor son, J.A.K.
{¶ 2} T.E. and D.K. are the parents of J.A.K. D.K. has been married twice and has a
total of four children. She married her first husband in 1990 and they had two children born
during their marriage. Both of these children use the surname of their father. D.K. divorced
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her first husband in 1999. She married her current husband in 2000. They have one child
together who was born in 2001. Both D.K. and her third child use the surname of D.K.’s
current husband. D.K.’s fourth child, J.A.K., was born in 2007 while D.K. and her current
husband were separated. J.A.K. has used the surname of D.K.’s current husband since his
birth.
{¶ 3} On September 6, 2011, T.E. filed an application for change of name of his son,
J.A.K. Following an evidentiary hearing, the trial court denied the application. T.E.
requested findings of fact and conclusions of law, which the trial court provided on November
8, 2011. T.E. filed a timely notice of appeal, raising the following assignment of error:
{¶ 4} “THE TRIAL COURT ERRED IN DENYING THE PETITION FOR NAME
CHANGE.”
{¶ 5} The probate court may order a change of name if the application for change
shows “reasonable and proper cause for changing the name.” R.C. 2717.01(A). “When
deciding whether to permit a name change for a minor child pursuant to R.C. 2717.01(A), the
trial court must consider the best interest of the child in determining whether reasonable and
proper cause has been established.” In re Willhite, 85 Ohio St.3d 28, 706 N.E.2d 778 (1999),
paragraph one of the syllabus.
{¶ 6} We review for an abuse of discretion a probate court’s determination of
whether a proposed name change is in a child’s best interest. In re Budenz, 133 Ohio App.3d
359, 362, 728 N.E.2d 24 (2d Dist.1999). In AAAA Enterprises, Inc v. River Place
Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990), the
Supreme Court held:
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“Abuse of discretion” has been defined as an attitude that is
unreasonable, arbitrary or unconscionable. Huffman v. Hair Surgeon, Inc.
(1985), 19 Ohio St.3d 83, 87, 19 OBR 123, 126, 482 N.E.2d 1248, 1252. It is
to be expected that most instances of abuse of discretion will result in decisions
that are simply unreasonable, rather than decisions that are unconscionable or
arbitrary.
A decision is unreasonable if there is no sound reasoning process that
would support that decision. It is not enough that the reviewing court, were it
deciding the issue de novo, would not have found that reasoning process to be
persuasive, perhaps in view of countervailing reasoning processes that would
support a contrary result.
{¶ 7} The Supreme Court, in Willhite, at paragraph two of the syllabus, held that the
trial court should consider the following factors when determining whether a change of a
minor’s surname is in the best interest of a child:
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
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factor relevant to the child's best interest.
{¶ 8} At the hearing (Tr. 10), T.E. provided the following reason for wanting to
change his son’s surname:
Other than the fact that I want to establish that he is my son, that his
name will never change under the pretense of what may happen between
[D.K.], whoever, [D.K.’s husband], I guess. I don’t know. It is a good name.
I mean it’s a well-established name that -- that for the only count that I know
of is just for the fact that I want to acknowledge he’s my son.
{¶ 9} D.K. testified that she does not want J.A.K.’s surname changed because he is
enrolled in primary school and a change of name would be confusing to him and would
require changing his name on medical records and school records. Further, J.A.K. knows his
current last name, one of his siblings uses the same surname as J.A.K., and D.K.’s current
husband has been there for J.A.K. since his birth.
{¶ 10} At the close of the evidentiary hearing, the trial court explained that it would
consider the evidence presented as it pertained to the best interest factors identified by the
Supreme Court in Willhite. The trial court subsequently denied T.E.’s application for a name
change, stating the following conclusions of law:
1) The child’s relationship with each parent is very positive, and
keeping the current name or changing the name will not improve or diminish
his relationship with either parent.
2) The child’s family unit is with his mother and step-father, who have
the name K[.] [J.A.K.] is comfortable with this name and relationship.
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3) The best interests of the child will be served at this time by keeping
his name [J.A.K.]
{¶ 11} Based on our review of the evidence, we cannot find that the trial court abused
its discretion in denying T.E.’s application for a name change. While the factors set forth in
Willhite show that a name change would not necessarily be harmful to J.A.K., they do not
necessarily demonstrate that a name change would be in J.A.K.’s best interest. In re Zachary
Dayton, 155 Ohio App.3d 407, 2003-Ohio-6397, ¶ 2 (7th Dist.). Therefore, the trial court
acted within its discretion in denying the application.
{¶ 12} The assignment of error is overruled. The judgment of the trial court will be
affirmed.
DONOVAN, J., And FROELICH, J., concur.
Copies mailed to:
Thomas G. Eagle, Esq.
Harry G. Beyoglides, Jr., Esq.
Hon. Robert A. Hagler