In re Name Change of E.S. , 2022 Ohio 2107 ( 2022 )

[Cite as In re Name Change of E.S., 2022-Ohio-2107.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
In re: The Name Change of: :
[E.S.], a Minor, : No. 21AP-527
(Prob. No. 608493)
[J.S., :
(REGULAR CALENDAR)
Appellant]. :
In re: The Name Change of: :
[A.S.], a Minor, : No. 21AP-528
(Prob No. 608492)
[J.S., :
(REGULAR CALENDAR)
Appellant]. :
D E C I S I O N
Rendered on June 21, 2022
On brief: Weston Hurd, LLP, and James P. Seguin, for
appellee [S.R.]. Argued: James P. Seguin.
On brief: [J.S.], pro se. Argued: [J.S.].
APPEALS from the Franklin County Court of Common Pleas,
Probate Division
LUPER SCHUSTER, P.J.
{¶ 1} Appellant, J.S., appeals from a judgment of the Franklin County Court of
Common Pleas, Probate Division, ordering the names of appellant's children, A.S. and E.S.,
be changed to include, with hyphenation, the surname of appellee, S.R., the mother of the
minors and appellant's former wife. For the following reasons, we affirm.
I. Facts and Procedural History
{¶ 2} In 2011, appellant and appellee married and, in November 2016, twin
brothers A.S. and E.S. were born as issue of this marriage. In September 2018, appellant
Nos. 21AP-527 and 21AP-528 2
initiated divorce proceedings in the Franklin County Court of Common Pleas, Division of
Domestic Relations. After protracted negotiations, their divorce was finalized on
February 10, 2021, with the filing of an agreed judgment entry–decree of divorce ("divorce
decree") and shared parenting decree, which incorporated the parties' joint shared
parenting plan. Two weeks later, appellee filed applications in the Franklin County Court
of Common Pleas, Probate Division, requesting that A.S.'s and E.S.'s names be changed to
include appellee's surname hyphenated with appellant's surname. Appellee's requests were
assigned to a probate court magistrate, who held a hearing regarding the matter on June 1,
2021. Six days later, the magistrate issued her decision recommending the probate court
grant appellee's name change requests. Appellant filed objections to the magistrate's
decision. The probate court overruled appellant's objections, adopted the magistrate's
decision, and accordingly granted the requests and ordered the name changes.
{¶ 3} Appellant timely appeals.
II. Assignments of Error
{¶ 4} Appellant assigns the following errors for our review:
[1.] The trial court erred in finding that Appellee did not waive
the name change issue in her divorce settlement, which should
be reviewed de novo.
[2.] The trial court erred and abused its discretion in
misapplying Willhite.
III. Discussion
{¶ 5} Appellant's first assignment of error contends the trial court erred in not
finding that appellee waived her right to seek the name changes for their children. If
appellee waived this right, the trial court should have denied her name change requests.
This assignment of error is not well-taken.
{¶ 6} Appellee filed the name change applications pursuant to former R.C. 2717.01,
which stated that a "person desiring a change of name may file an application in the probate
court of the county in which the person resides," and that an "application for change of
name may be made on behalf of a minor by either of the minor's parents, a legal guardian,
Nos. 21AP-527 and 21AP-528 3
or a guardian ad litem." Former R.C. 2717.01(A)(1) and (B).1 Appellant argues appellee
waived her right to file any name change application concerning their children based on
their divorce settlement agreements and related negotiations.
{¶ 7} "Waiver is a voluntary relinquishment of a known right and is generally
applicable to all personal rights and privileges, whether contractual, statutory, or
constitutional." Glidden Co. v. Lumbermens Mut. Cas. Co., 112 Ohio St.3d 470, 2006-Ohio-
6553, ¶ 49. A party asserting waiver must prove it with evidence of the other party's "clear,
unequivocal, decisive act * * * demonstrating the intent to waive." Maghie & Savage, Inc.
v. P.J. Dick Inc., 10th Dist. No. 08AP-487, 2009-Ohio-2164, ¶ 27. Thus, at issue is whether
appellee demonstrated an intent to voluntarily relinquish her statutory right to request
name changes for A.S. and E.S.
{¶ 8} During the parties' divorce settlement negotiations, appellee raised the issue
of changing their four-year-old twin boys' names. In her February 11, 2020 divorce
settlement offer, she stated her intent to have her maiden name restored, and, in connection
with that change, she requested appellant agree that the children's names be changed to
include both parents' surnames in hyphenated form. She indicated her view that the
requested name changes would be in the children's best interests. Despite this request, and
appellee being restored to her maiden name pursuant to the agreed upon divorce decree,
neither that decree nor the court adopted joint shared parenting plan addresses the name
change issue concerning the children. And the parties agreed at the probate court hearing
that this name change issue was not discussed between them during their divorce
settlement negotiations. Appellee testified that she received no response from appellant
concerning the name change proposal in her February 2020 settlement offer. Similarly,
appellant testified that, to productively discuss the issue, they needed the involvement of
the assigned parenting coordinator, and because appellee indicated she was unwilling to
proceed in that manner, the issue was not discussed between them. Therefore, the record
demonstrates appellee sought an agreement concerning the name change issue during
1Effective August 17, 2021, the Ohio General Assembly recodified, with some modifications, the law
governing the change of a person's legal name. See In re Name Change of Davis, 3d Dist. No. 9-21-05,
2021-Ohio-3879, ¶ 8, fn. 2 (noting that 2021 H.B. No. 7 "distributed the various provisions of former R.C.
2717.01, with modifications, throughout R.C. Chapter 2717").
Nos. 21AP-527 and 21AP-528 4
divorce settlement negotiations, but the parties did not substantively discuss the issue and
the divorce settlement filings contain no provision addressing this issue.
{¶ 9} Even so, appellant contends appellee waived her statutory right to file the
name change applications on behalf of their children. He argues this abandonment is
reflected by the absence of any provision in the divorce filings permitting appellee to
request the name changes. Alternatively, citing the court adopted joint shared parenting
plan's statement that "[b]oth parents firmly believe that this Joint Shared Parenting Plan is
in the minor children's best interests," appellant asserts the plan reflected the parties'
agreement that no name change was in the children's best interests. (Pl.'s Ex. 9, Feb. 10,
2021 Joint Shared Parenting Plan, Section 16.) Appellant argues that appellee "changed
her mind and decided that changing the minors' surnames was in their best interests."
(Appellant's Brief at 10-11.) We are unpersuaded.
{¶ 10} Appellant's argument relying on the "best interests" statement in the court
adopted joint shared parenting plan is flawed because it incorrectly assumes the plan
contains a provision that addresses, either directly or indirectly, the possibility of the
children's names being changed. But appellant does not cite, and as noted above we do not
find, any such provision in the plan. Contrary to appellant's argument, appellee's assertion
that, in connection with the name change applications, the name changes were in the
children's best interests was not inconsistent with the joint shared parenting plan.
{¶ 11} Further, the silence as to the name change issue in the agreed upon divorce
filings does not reflect an intent by appellee to abandon her right to file name change
applications in the probate court; instead, it reflects no agreement between the parties
concerning the issue. Since the beginning of the divorce proceedings, both parties have
been consistent in their opposing perspectives concerning the children's names—appellee
has believed changing the children's names is in their best interests, and appellant has not.
Just as there is no language in those filings permitting appellee to file such an application,
there is no provision prohibiting appellee from exercising her existing statutory right and
taking this action. The issue simply is not addressed in the agreed upon divorce filings.
{¶ 12} Relatedly, appellant argues he and appellee negotiated this issue out of the
divorce settlement agreements. According to appellant, the name change issue was
inextricably intertwined with other issues, and, as a result of their negotiations, appellee
Nos. 21AP-527 and 21AP-528 5
agreed to forego that right in exchange for either a term more favorable to her or appellant's
corresponding abandonment of a term he wanted. But appellant does not cite anything in
the record to substantiate this contention. And we find nothing in the divorce filings, or
anything else in the record, demonstrating that the issue of appellee's right to file the name
change applications was inseparably bound to the inclusion or exclusion of any term in the
agreed upon divorce filings. Moreover, as discussed above, both parties' testimony at the
hearing indicated the name change issue was not discussed between them, further
undermining appellant's assertion that this issue was negotiated out of the written
agreement. Thus, we are unpersuaded by appellant's argument that, in the divorce
proceedings, appellee agreed to abandon her right to file the name change applications.
{¶ 13} Because appellant has failed to demonstrate that appellee waived her
statutory right to file name change applications for the children, we overrule his first
assignment of error.
{¶ 14} In his second assignment of error, appellant asserts the trial court erred in
misapplying In re Willhite, 85 Ohio St.3d 28 (1999). He argues appellee did not meet her
burden because she committed perjury and the pertinent factors to be considered in
reviewing a name change request for a minor weighed in favor of denying her requests.
This assignment of error lacks merit.
{¶ 15} "When reviewing a trial court's decision determining that a child's name
either should or should not be changed, a reviewing court may not substitute its own
judgment for that of the trial court, but it must consider whether the trial court abused its
discretion." D.W. v. T.L., 134 Ohio St.3d 515, 2012-Ohio-5743, ¶ 10. An abuse of discretion
implies that the court's attitude is unreasonable, arbitrary, or unconscionable. Blakemore
v. Blakemore, 5 Ohio St.3d 217, 219 (1983). Under this standard for reviewing name change
decisions, "[w]hen there is insufficient evidence as a matter of law that a name change is in
the best interest of the child, a trial court's judgment changing a child's surname must be
reversed." D.W. at ¶ 10. Conversely, "absent a showing that the trial court's decision has
no basis in the evidence before it or was otherwise an abuse of discretion, an appellate court
will not reverse the decision on appeal." Boysel v. Perrill, 12th Dist. No. CA2000-11-032,
2001 Ohio App. LEXIS 3999, *6-7 (Sept. 10, 2001). See In re Name Change of Perez, 10th
Dist. No. 04AP-126, 2004-Ohio-5068, ¶ 16 ("We find there was sufficient evidence, as a
Nos. 21AP-527 and 21AP-528 6
matter of law, to support the probate court's judgment changing the minor girls'
surname.").
{¶ 16} As the applicant, appellee had the burden of demonstrating "reasonable and
proper cause" for the requested name changes. D.W. at ¶ 17; former R.C. 2717.01(A)(3).
When deciding this issue, the trial court must consider the best interest of the child.
Willhite at paragraph one of the syllabus. In making this determination, 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. Willhite
at paragraph two of the syllabus.
{¶ 17} Appellant argues that appellee did not meet her burden of demonstrating
"reasonable and proper cause" for the requested name changes. He contends appellee
offered false and misleading testimony at the hearing and presented no evidence
demonstrating that the requested changes were in the minors' best interests. He asserts
the Willhite factors favored his position that the minors' names should not have been
changed as appellee requested, citing evidence that the surname appellee used after the
divorce was the same as the children's surname, that he has always maintained contact with
the children, and that the children had the same surname for their entire lives.
{¶ 18} According to appellant, appellee committed perjury at the hearing as to
whether the assigned parenting coordinator could discuss the name change issue with
appellant and appellee. Appellee testified in part that "[t]he other big point [the parenting
coordinator] made to me, because [appellant] did bring up this name change to her, is that
that is not something that she has any jurisdiction or anything to do with. So that was
outside the scope of what she is capable or willing to do. It's not a parenting issue." (Tr. at
29.) Appellant contends that this statement was false and misleading, citing an affidavit of
the parenting coordinator, Jamie Niesen, which he submitted in support of his objections
Nos. 21AP-527 and 21AP-528 7
to the magistrate's decision. The affidavit of Niesen, who was not called to testify at the
hearing, indicates appellant informed her that he wanted her to facilitate his discussion of
the name change issue with appellee, but that appellee stated the view that she had no
authority concerning the topic and it would not be discussed. Her affidavit indicates that
she had the authority to facilitate a discussion concerning the name change issue. Appellant
contends the trial court erred in not considering these averments in conjunction with
reviewing his objections, and in not discrediting all of appellee's testimony because of her
false and misleading testimony as to this issue. We disagree.
{¶ 19} Before ruling on objections to a magistrate's decision, a trial court "may hear
additional evidence but may refuse to do so unless the objecting party demonstrates that
the party could not, with reasonable diligence, have produced that evidence for
consideration by the magistrate." Civ.R. 53(D)(4)(d). "Civ.R. 53(D)(4)(d) gives the trial
court broad discretion in deciding whether to hear additional evidence." Maddox v.
Maddox, 1st Dist. No. C-140718, 2016-Ohio-2908, ¶ 14. Despite submitting Niesen's
affidavit as additional evidence for the trial court to consider in reviewing his objections to
the magistrate's decision, appellant did not explain why Niesen's testimony could not have
been produced with reasonable diligence when the case was presented to the magistrate.
Further, while Niesen's averments could be read as providing a rebuttal to appellee's
testimony as to what Niesen told appellee regarding the parent coordinator's role in any
discussion or decision concerning the name change issue, those averments do not
necessarily demonstrate that appellee offered false or misleading testimony as to this issue
or any other issue. Even if properly before the trial court for consideration, the substance
of the affidavit did not require the trial court to find all of appellee's testimony lacked
credibility. As the factfinder, the trial court was free to believe all, part, or none of the
testimony of each witness. Rankin v. Rankin, 10th Dist. No. 20AP-223, 2021-Ohio-1967,
¶ 17. Therefore, appellant's arguments concerning appellee's credibility based on Niesen's
affidavit are unavailing.
{¶ 20} We also disagree with appellant's contention that the trial court abused its
discretion in its application of the Willhite factors. Appellant asserts the trial court properly
recognized that the children had gone by his surname their entire lives, but then improperly
ignored this factor in stating the children could adapt and learn the combined hyphenated
Nos. 21AP-527 and 21AP-528 8
name. We reject appellant's contention that the trial court ignored the length of time the
children had used their surname given at birth. That the trial court did not find this factor
dispositive regarding the best interests of the children does not mean the trial court did not
consider it. The trial court's observation that the children would be able to adapt to a
changed surname demonstrated its weighing of the fact that they had gone by appellant's
surname since birth. Appellant also contends the fact that he has always maintained
contact with, and support of, the children was a factor that favored his position. But
appellant does not explain how this circumstance weighed against changing the children's
names to include the surnames of both appellee and appellant. Thus, appellant fails to
demonstrate the trial court abused its discretion in reviewing these pertinent factors.
{¶ 21} Appellant additionally argues that other Willhite factors weighed against the
name changes because evidence at the hearing demonstrated that appellee continued to use
her married name even after the divorce was finalized. He asserts that, based on this
continued usage, name changes for the children were not necessary to alleviate issues
associated with appellee having a different surname from the children, including the
embarrassment, discomfort, or inconvenience that may result. We agree evidence
indicated that appellee went by the name S.S. in numerous contexts in the months after the
divorce proceedings, including on the name change applications, on the deed to her
property, on the mortgage securing the loan for her property, with the children's doctors,
and with the children's school. But when appellee was confronted at the hearing regarding
her continued use of this name, she confirmed her intent to be known by her maiden name,
consistent with the agreed upon divorce decree ordering that reversion, and she explained
that she would soon take the necessary steps to fully effectuate that change with the
appropriate government agencies. She also noted that she always has gone by her maiden
name during her career as a veterinarian. Moreover, appellee's delay in using her maiden
name in all respects was also consistent with the reality that, until the children's surnames
were changed, their surnames mirrored appellee's married surname. Therefore, even
though there was evidence that appellee continued to use appellant's surname after the
filing of the agreed upon divorce decree, which ordered her name restored to her maiden
name, there was also evidence that, consistent with this order, her use of appellant's
Nos. 21AP-527 and 21AP-528 9
surname was temporary as she would soon complete the process of fully and officially
restoring her maiden name.
{¶ 22} With appellee reverting to her maiden name, the trial court reasonably
granted her requests for the children's surnames to be changed to include both parents'
surnames in hyphenated form. Appellee testified at the probate court hearing that she
requested the name changes to provide her children with an increased sense of security and
inclusion with both parental families, and to prevent embarrassment from having a parent
with a different surname. This testimony was consistent with the principles, approved by
the Supreme Court of Ohio, that "a combined surname gives the child [of divorced parents]
a greater sense of security," and "would help the child identify with both parents, a state of
mind that child psychologists say is essential to the child's adjustment to divorce." Willhite
at 33, citing Seng, Note, Like Father, Like Child: The Rights of Parents in their Children's
Surnames, 70 Va.L.Rev. 1303, 1350 (1984), citing Cochran & Vitz, Child Protective Divorce
Laws: A Response to the Effects of Paternal Separation on Children, 17 Fam.L.Q. 327, 333-
34, 353 (1983). See Perez, supra, at ¶ 15, citing Willhite. The Supreme Court further
observed that "[a] combined surname is a solution that recognizes each parent's legitimate
claims and threatens neither parent's rights. The name merely represents the truth that
both parents created the child and that both parents have responsibility for that child."
Willhite at 33, citing Seng, supra, 70 Va.L.Rev. at 1348. This reasoning applies with equal
force in this case and thus supported the trial court's finding that appellee met her burden.
{¶ 23} Because the trial court did not abuse its discretion in applying Willhite and
finding the requested name changes were in the children's best interests, we overrule
appellant's second assignment of error.
IV. Disposition
{¶ 24} Having overruled appellant's first and second assignments of error, we affirm
the judgment of the Franklin County Court of Common Pleas, Probate Division.
Judgment affirmed.
DORRIAN and McGRATH, JJ., concur.