In re Name Change of M.J. , 2019 Ohio 2065 ( 2019 )

[Cite as In re Name Change of M.J., 2019-Ohio-2065.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
AUGLAIZE COUNTY
IN RE: THE NAME CHANGE OF:
CASE NO. 2-18-12
M.J.,
OPINION
[L.L. - APPELLANT]
Appeal from Auglaize County Common Pleas Court
Probate Division
Trial Court No. 2018 NC 25
Judgment Affirmed
Date of Decision: May 28, 2019
APPEARANCES:
Aaron D. Lowe for Appellant
Case No. 2-18-12
SHAW, J.
{¶1} Petitioner-appellant, L.L. (“Mother”), appeals the October 1, 2018
judgment of the Auglaize County Court of Common Pleas, Probate and Juvenile
Divisions, denying her petition to change the surname of her minor child, who is
fathered by Respondent-appellee, B.J. (“Father”). On appeal, Mother claims that
the trial court abused its discretion when it denied her petition for a name change of
the child.
Procedural History
{¶2} On June 18, 2018, Mother filed a petition for a name change of the
parties’ minor child, M.J. (born in 2011). Specifically, Mother sought to change the
child’s surname from that of Father’s to her own, which is also Mother’s maiden
name. Father filed a response opposing the petition.
{¶3} On September 25, 2018, the trial court conducted a hearing on the
matter. On October 1, 2018, the trial court issued a judgment entry denying the
petition finding that changing M.J.’s surname is not in M.J.’s best interest.
{¶4} Mother filed this appeal, asserting the following assignment of error.
THE TRIAL COURT ABUSED ITS DISCRETION IN
DENYING APPELLANT’S PETITION TO CHANGE THE
NAME OF MINOR CHILD BECAUSE THE TRIAL COURT
FAILED TO APPLY THE PROPER LEGAL STANDARD
ARTICULATED BY THE OHIO SUPREME COURT IN IN RE
WILLHITE, TO THE FACTS OF THE INSTANT CASE.
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{¶5} In her sole assignment of error, Mother argues that the trial court abused
its discretion in denying her petition to change M.J.’s surname. Specifically, Mother
contends that the trial court failed to adequately consider the factors stated by the
Supreme Court of Ohio in In re Willhite, 85 Ohio St.3d 28, 1991-Ohio-201.
Legal Standard
{¶6} 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 (1999), paragraph one of the syllabus. The Supreme
Court of Ohio, in Willhite, 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
factor relevant to the child’s best interest.
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Willhite, 85 Ohio St.3d 28 at paragraph two of the syllabus.
{¶7} On appeal, our role is not to reweigh the evidence, but to determine
whether the trial court’s application of the law to the facts presented amounted to
an abuse of discretion. In re Crisafi, 104 Ohio App.3d 577 (1995). “The term ‘abuse
of discretion’ implies that the court’s attitude is unreasonable, arbitrary or
unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
Evidence Adduced at the Hearing
{¶8} Mother testified that Father’s paternity had been legally established by
the trial court in December of 2012 and at that time he was granted parenting time
with M.J. However, Mother stated that Father has not exercised his parenting time
since January 1, 2013. Mother also testified that M.J. has been enrolled in the same
school district since 2014 under Mother’s surname even though Father’s surname is
stated on M.J.’s birth certificate. Mother further stated that M.J.’s friends and
teachers only know M.J. by Mother’s surname. Mother explained that M.J. has
been primarily raised among Mother’s extended family, many of whom have
Mother’s surname. She also stated that M.J. does not know that her last name is
different from Mother’s and her family’s and is confused when she is called by her
Father’s surname at the doctor’s office.
{¶9} Mother also acknowledged that she first filed a name change petition in
2015 to change M.J.’s surname to her own, which she voluntarily dismissed. In
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support of her petition to change M.J.’s name, Mother maintained that it is in M.J.’s
best interest to have the same surname of the family with whom M.J. spends the
most time. Mother explained that M.J. lives with her at M.J.’s maternal
grandparents’ home, is extremely close to Mother’s family, and is not familiar with
Father or his family. Therefore, Mother asserts that M.J. should have Mother’s
surname, rather than Father’s surname. Mother also presented the testimony of the
principal of the elementary school that M.J. attends and M.J.’s aunt, also Mother’s
sister, to bolster Mother’s testimony that people in the community believe M.J.’s
surname is that of Mother’s.
{¶10} Father testified opposing the name change petition. Father explained
that he and Mother were involved in a relationship for two years. When M.J. was
born, he was legally determined to be M.J.’s father and is current on his child
support payments. Father also provides health insurance for M.J. through his
employer. Father claimed that Mother has interfered with his parenting time with
M.J. Father also claimed that Mother has refused to have contact with him and has
failed to provide any current information for him to locate Mother and M.J.’s
whereabouts. Father stated that Mother has prevented him and his family from
having a relationship with M.J. Notably, Mother denied these allegations by Father
and stated that she has had the same contact information for the last several years.
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{¶11} Father explained that he opposed the petition because sharing a
common last name is his only bond with his daughter. He expressed his concern
that Mother would further alienate M.J. from him if the name change petition is
granted. Father also presented the testimony of his mother, M.J.’s paternal
grandmother, who reiterated Father’s testimony regarding Mother’s distain towards
Father and the “excuses” that Mother made to obstruct Father’s exercise of his
parenting time. (Tr. at 57). Paternal Grandmother further explained that Mother’s
actions have led to her and other members of Father’s family having no relationship
with M.J.
{¶12} In its judgment denying Mother’s petition to change M.J.’s surname,
the trial court stated the following:
After the consideration of all the Evidence and testimony that has
been presented, the Court does not find that it would be in the
best interest of this child to legally change her last name * * *. It
appears to the Court that the only remaining connection that the
natural father has with the minor child is [his] last name [].” Both
parties are at fault for the minor child not having a relationship
with the natural father. The natural mother has not fostered a
relationship and the natural father has not attempted to assert his
rights with regard to visiting the child. To change the child’s last
name at this point in time, would serve to do nothing more than
completely alienate any potential relationship the child may have
with her natural father. The Court finds that that complete
alienation would not be in the child’s best interest and the petition
to change her name is therefore DENIED.
(Doc. No. 38 at 2).
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Discussion
{¶13} On appeal, Mother claims that the trial court failed to apply the factors
articulated by the Supreme Court of Ohio in Willhite. At the outset we note that the
trial court specifically referenced its reliance on Willhite before pronouncing its
decision to deny the petition on the record. Moreover, it is clear from the record
that the trial court applied the appropriate legal standard in this case. Therefore, we
find no merit in Mother’s contention on appeal that the trial court misapplied the
law.
{¶14} Rather, it is apparent that Mother disputes the trial court’s conclusion
that she failed to carry her burden in proving that changing M.J.’s surname is in
M.J.’s best interest. See D.W. v. T.L., 134 Ohio St. 3d 515, 519, 2012-Ohio-5743,
¶ 17 citing In re Change of Name of Halliday, 11th Dist. No. 2005-G-2629, 2006-
Ohio-2646, ¶ 18 (noting that the burden is on the party who seeks the name change
to establish that the change is in the child’s best interest).
{¶15} Specifically, the trial court stated on the record that:
A parent can call a child by whatever name they choose to do so.
For some reason, and nobody’s really explained to the Court why
this child’s name at the time she was born was chosen to be
[Father’s surname] and the Court has not heard any evidence as
to indicate why at this point in time, other than this child’s
confusion, that her name ought to be changed. The Court believes
this child being the age she is and under all of the circumstances,
believes that the only connection at this point she has with her
father is her last name, legally. What she’s called otherwise is up
to her mother and her mother has already enrolled her as
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[Mother’s surname] and has her friends calling her [Mother’s
surname], which probably won’t change.
To legally change her name at this point in time, the Court doesn’t
believe to be in her best interest, as it would be the last remaining
connection she has with her father * * * When she becomes an
adult and wants to change her own last name she may do so.
(Tr. at 72-73).
{¶16} Mother maintains that the trial court failed to adequately consider the
fact that M.J. already thinks her last name is the same as Mother’s and her concern
about the confusion that arises when M.J. is referred to by Father’s surname.
However, as noted by the trial court, Mother created this scenario by failing to be
honest with M.J. about her given surname and by perpetuating the confusion when
she chose to enroll M.J. under Mother’s surname at school. In effect, for most of
M.J.’s life, Mother has attempted to remove Father’s surname from M.J.’s name
without effectuating it through the legal process of a name change petition. Father
admittedly does not insist on exercising his parenting rights, in spite of Mother’s
apparent obstruction, however, Father does financially support M.J. through child
support and providing insurance coverage. The trial court was apparently skeptical
of Mother’s motives for changing M.J.’s surname and the general import of
Mother’s testimony was that the change of name should be granted on the basis of
the Mother’s own wishes and to ratify her own conduct and not, as the law requires,
in the best interests of the child.
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{¶17} Based on our review of the evidence, we cannot find that the trial court
abused its discretion in denying Mother’s application to change M.J.’s surname.
While the factors set forth in Willhite show that a name change would not
necessarily be harmful to M.J., they do not necessarily demonstrate that a name
change would be in M.J.’s best interest. In re Zachary Dayton, 155 Ohio App.3d
407, 2003-Ohio-6397, ¶ 2 (7th Dist.). Therefore, we conclude that the trial court
acted within its discretion in denying the application.
{¶18} For all these reasons, the assignment of error is overruled and the
judgment is affirmed.
Judgment Affirmed
PRESTON and WILLAMOWSKI, J.J., concur.
/jlr
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