In re Name Change of O.B.A.

[Cite as In re Name Change of O.B.A., 2021-Ohio-2212.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
SCIOTO COUNTY
IN THE MATTER OF: : Case No. 20CA3920
THE CHANGE OF NAME OF O.B.A. :
:
: DECISION AND JUDGMENT
: ENTRY
:
: RELEASED: 06/23/2021
________________________________________________________________
APPEARANCES:
S. Andrew Sturgill, Portsmouth, Ohio, for Appellant.
________________________________________________________________
Wilkin, J.
{¶1} This is an appeal from a judgment of the Scioto County Court of
Common Pleas, Probate Division (“probate court”), that denied appellant-father,
Caleb Andronis’, application to change his minor son’s surname from Lore to
Andronis. Appellee-Mother, Savanna Spencer Lore, has not filed a brief in
opposition. Having reviewed the appellant’s arguments, the record, and the
applicable law, we overrule appellant’s assignment of error, and affirm the
probate court’s judgment denying appellant’s application.
BACKGROUND
{¶2} Appellee gave birth to a son (“O.B.L.”) on January 17, 2017. On
July 20, 2017, appellant filed a complaint in the domestic relations division of
the court of common pleas for parentage, allocation of parental rights and
responsibilities, and parenting time. On June 25, 2018, the court issued an
agreed entry that in pertinent part found that appellant was O.B.L.’s biological
Scioto App. No. 20CA3920 2
father, that appellee would be the custodial parent, and that appellant shall
have parenting time. Two days later, in the same court, appellant filed a motion
to change O.B.L.’s surname without success.
{¶3} On June 14, 2019, appellant filed an application to change O.B.L.’s
surname in the probate court. A hearing for the application was set for
September 12, 2019. The hearing was rescheduled twice, but eventually held
on February 26, 2020. Three witnesses testified at the hearing: appellant,
appellant’s mother (Vicki), and appellee.
{¶4} Appellant testified that he applied to change O.B.L.’s surname from
Lore, to appellant’s surname, Andronis. He testified that appellee informed him
that he was O.B.L.’s father prior to the birth, but he was not present when the
child was born. Appellant further testified that during the parentage proceeding
his relationship with appellee was “very negative,” making it difficult for him to
establish a relationship with O.B.L. Appellant currently sees O.B.L. six days a
month and he has a “very good” relationship with him. Appellant stated that his
mother, father, and brother spent a significant amount of time with O.B.L. and
that appellee’s family involvement with him is less significant. Appellant
testified that during appellee’s parenting time, O.B.L. spends a lot of time with a
babysitter. When asked by his counsel why he wanted O.B.L.’s surname
changed, appellant responded “[w]ell, I mean, he’s my son and it’s normally just
customary. I’d like to continue my last name and I’ve been proven to be the
father and I’ve made all the right choices and corrections into being the father
and I just think he deserves my last name.”
Scioto App. No. 20CA3920 3
{¶5} Next to testify was Vicki Andronis, appellant’s mother. She testified
that appellant takes care of O.B.L. “ninety-nine percent.” She testified that
O.B.L. also spends a lot of time with her husband (O.B.L.’s grandfather), Uncle
Drew, and his cousins.
{¶6} The final witness was appellee. She testified that she has support
from her family including her sister, father, aunts, uncles, and grandparents,
and O.B.L. interacts with all of them. Appellee became aware that appellant
wanted to change O.B.L.’s surname at the time he filed the application;
however, she testified that she would prefer his name not be changed because
it would be inconvenient and confusing to O.B.L. Lastly, she testified that she
had been there for O.B.L. from the beginning, so he “deserved” her surname.
{¶7} On July 17, 2020, the probate court issued an entry that made
findings based on the factors set out in In re Willhite, 85 Ohio St.3d 28, 32,
1999-Ohio-201, 706 N.E.2d 778 (1999), paragraph two of the syllabus, and
concluded that it was not in O.B.L.’s best interest to have his surname changed.
Accordingly, the court denied appellant’s application to change O.B.L.’s
surname. It is this judgment that appellant appeals, asserting a single
assignment of error.
ASSIGNMENT OF ERROR
THE PROBATE COURT ERRED AND ABUSED ITS DISCRETION IN
DENYING APPELLANT’S APPLICATION TO CHANGE THE SURNAME
OF THE MINOR CHILD
{¶8} Appellant argues that the probate court abused its discretion when it
denied his application to change O.B.L.’s surname from Lore to Andronis.
Scioto App. No. 20CA3920 4
Appellant alleges that the probate court treated him arbitrarily and unfairly citing
that both he and appellee testified that they each believed that the child
“deserved” their respective surnames, but the court admonished only appellant
for making that statement. He argues that the court’s “contempt for the
appellant saturates its entire decision to deny his Application.” Finally,
appellant argues granting his name change application would be in O.B.L.’s
best interest under the Willhite factors.
{¶9} Before we proceed in setting out appellant’s position, we feel it is
necessary to address his argument that it is in O.B.L.’s best interest to grant the
name change application. “[A]ppellate courts determine an appeal ‘on its merits
on the assignment of error[s]’ and not on ‘mere arguments.’ ” State v. Lykins, 4th
Dist. Adams No. 18CA1079, 2019-Ohio-3316, ¶ 66, quoting App.R.
12(A)(1)(b); State v. Johnson, 4th Dist. Scioto No. 17CA3814, 2018-Ohio-4516, ¶
8. The best interest determination for a name change application is made by the
trial court after considering the evidence. Our role on appeal is more limited,
which is to determine whether the trial court abused its discretion in granting or
denying the name change application. In re Skeens, 4th Dist. Highland No.
11CA2, 2011-Ohio-3424, ¶ 8, citing Jones v. Smith, Lawrence App. No. 10CA4,
2010–Ohio–4461, ¶ 5. Therefore, we have no authority to consider appellant’s
best interest argument. Consequently, our analysis in this decision is confined to
whether the court abused its discretion in denying appellant’s name change
application under the Willhite factors as asserted in his sole assignment of error.
Scioto App. No. 20CA3920 5
{¶10} Under the first factor, appellant argues that changing O.B.L.’s
surname would not detrimentally affect the preservation and development of
O.B.L.’s relationship with appellee because appellee’s surname is “Spencer
Lore,” while O.B.L.’s surname is “Lore.” Therefore, appellant argues any
confusion regarding O.B.L.’s surname already exists because he and appellee
already have different surnames. The appellant also asserts that O.B.L. is so
young there would be minimal confusion if his surname was changed to
Andronis. Finally, he argues that contrary to the probate court’s finding, it is not
absurd to believe that a name change would improve the “dynamics” of
appellant’s relationship with O.B.L.
{¶11} Regarding the second factor, appellant argues that changing
O.B.L.’s surname to Andronis would help his son identify with appellant’s
extended family because they have the same surname. He also states that
changing O.B.L.’s surname would not be detrimental to his relationship with
appellee, who testified that she plans to take her fiancé’s surname; therefore,
appellee’s surname and any children she may have thereafter would be named
“Lore Smithson.”
{¶12} Regarding the third factor, the length of time that the child has had
his or her surname, appellant recognizes that although O.B.L. has had Lore as
his surname since birth, changing his surname now would have minimal
detrimental effect because of O.B.L.’s young age.
{¶13} Regarding the fourth factor, whether the child is sufficiently mature
to express a preference as to which surname he or she would prefer, appellant
Scioto App. No. 20CA3920 6
argues that because O.B.L. is only three years old he cannot meaningfully
choose which surname he prefers.
{¶14} Regarding the fifth factor, whether the child’s surname differs from
his or her residential parent, appellant again argues that changing his son’s
surname will have minimal impact because appellee’s surname differs from
O.B.L.’s.
{¶15} Regarding the sixth factor, whether a child who bears a surname
that is different from the residential parent causes embarrassment, discomfort, or
inconvenience, appellant argues that O.B.L. is not mature enough to suffer these
feelings due to a name change.
{¶16} Regarding the seventh factor, whether a parent has failed to
maintain contact with the child and provide support for the child, appellant argues
that he has maintained contact and provided support.
{¶17} Finally, regarding the eighth and final factor, any other factor
relevant to the child’s best interest, appellant argues he cherishes his son and
provides support for him. He also argues that the probate court’s finding that he
filed the application for the name change to harm appellee is “unfounded.”
{¶18} Appellee has not filed a brief in opposition.
LAW
{¶19} R.C. 2717.01(B) permits a minor’s name to be changed by an
application “made on behalf of a minor by either of the minor's parents[.] ” The
applicant bears “ ‘the burden of showing the name change would be in the
Scioto App. No. 20CA3920 7
child's best interest.’ ” Skeens at ¶ 9, quoting In re A.B., 8th Dist. Cuyahoga No.
93693, 2010–Ohio–2227, ¶ 11.
{¶20} “[W]hen 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.” Willhite, 85 Ohio St.3d at 28, 706 N.E.2d 778; In re Change of
Name of E.C.G., 194 Ohio App. 3d 385, 2011-Ohio-1749, 956 N.E.2d 851 (4th
Dist.) ¶ 7. 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.
Id. at paragraph two of the syllabus.
“[The court] should consider only those factors present in the particular
circumstances of each case.” Bobo v. Jewell, 38 Ohio St.3d 330, 528 N.E.2d
180 (1988), paragraph two of the syllabus.
{¶21} “We review a trial court’s name-change decision under an abuse of
discretion standard of review.” Skeens, Dist. Highland No. 11CA2, 2011-Ohio-
3424 at ¶ 8, citing Jones Lawrence App. No. 10CA4, 2010–Ohio–4461 at ¶ 5.
“ ‘Whether or not we would have arrived at a different conclusion if we were
undertaking a de novo review is not the issue.’ ” Id. at ¶ 17, quoting Jones at ¶
Scioto App. No. 20CA3920 8
17. “We will not substitute our judgment for that of the trial court, and we will
reverse only if the trial court abused its discretion.” Vice v. Sexton, 4th Dist.
Scioto No. 10CA3371, 2011-Ohio-1647, ¶ 25, citing Jones at ¶ 5. “An abuse of
discretion involves more than an error of judgment; it is an attitude on the part of
the court that is unreasonable, unconscionable, or arbitrary.” In re Change of
Name of Simers, 4th Dist. Washington No. 6CA30, 2007-Ohio-3232, ¶ 8, citing
Franklin Cty. Sheriff's Dept. v. State Emp. Relations Bd., 63 Ohio St.3d 498, 506,
589 N.E.2d 24 (1992).
{¶22} In a name change application case there is no jury, so the probate
court is the decider of facts. See Combs v. Hobstetter-Hall, 4th Dist. Lawrence
No. 2016-Ohio-7407, ¶ 18 (In a bench trial, the court is the trier of fact). “The
trier of fact is free to believe all, part or none of the testimony of each witness
who appears before it.” In re Hare, 4th Dist. Scioto No. 95CA2395, 1996 WL
139673, *4 (Mar. 25, 1996). Moreover, “[a] trier of fact is entitled to make
reasonable inferences from the record.” In re T.C., 4th Dist. Washington No.
9CA10, 2009-Ohio-4325, ¶ 41.
{¶23} Appellant, as applicant, had the burden of proving that changing
O.B.L.’s name would be in O.B.L.’s best interest. When asked during the
hearing, why he wanted to change O.B.L.’s surname, appellant answered: “Well
I mean he’s my son and it’s normally just customary. I’d like to continue my last
name and I’ve been proven to be the father and I’ve made all the right choices
and corrections into being the father and I just think that he deserves my last
name.” Custom “is not a proper factor for a trial court to consider in deciding
Scioto App. No. 20CA3920 9
whether to grant an application for the name change of a minor.” In re Change
of Name of Simers, 4th Dist. Washington No. 6CA30, 2007-Ohio-3232 at ¶ 12,
citing Bobo, 38 Ohio St.3d 330, 528 N.E.2d 180, and Willhite, 85 Ohio St.3d 28,
706 N.E.2d 778. Moreover, the probate court considered all eight of the Willhite
factors in evaluating the appellant’s name change application, and found six of
the eight factors indicated that a name change was not in O.B.L.’s best interest.
And the court concluded:
[I]t is not in the Child’s best interests to change his name. There is no
reasonable and proper reason to do so. He gets along well as things are.
The applicant makes no argument that it will benefit the Child to change
his name. His arguments are all self-serving. The name change is all for
him, perhaps a weapon in a continuing battle with the [appellee]. The
application is denied.
{¶24} Nevertheless, appellant argues the probate court abused its
discretion in denying appellant’s name change application. Consequently, we
will review appellant’s arguments in that regard.
{¶25} Under the first Willhite factor, the probate court found that appellee
spends more time with O.B.L., and a name change would strain the relationship
between appellee and O.B.L. and cause O.B.L. confusion. Appellant argues no
confusion in changing O.B.L.’s surname to Andronis would arise because his
surname and appellee’s surname are already different. Appellee testified that
legally she has two last names, Spencer and Lore, without any hyphenation.
While appellee does have the additional surname of Spencer, she and O.B.L.
both share the same surname of Lore. Therefore, we reject appellant’s
argument that the court was incorrect in determining that O.B.L. has the same
surname as his residential parent, appellee.
Scioto App. No. 20CA3920 10
{¶26} Under the second Willhite factor, the probate court found that O.B.L.
identifies more with appellee’s family than he does with appellant’s family
because he resides with appellee. In this regard, appellant alleges that the
court’s finding that O.B.L. spends more time with appellee than appellant by a
five to one ratio is unsupported in the record. It is unclear from the record how
the court calculated that time-share ratio, or if it is correct. But, despite
appellant’s allegation, he admits in his brief that “it is clear that the minor child
spends more time with Appellee[.]” Therefore, we conclude that the probate
court’s finding - that appellee spends more time with O.B.L. than appellant does
- is supported in the record.
{¶27} Under the third Willhite factor, the probate court correctly found that
O.B.L. had the surname of Lore all 37 months of his life. This finding is not
disputed by appellant.
{¶28} Under the fourth Willhite factor, the probate court found that O.B.L.
was too young to express a preference regarding which surname he preferred.
Appellant does not dispute this finding.
{¶29} Under the fifth Willhite factor, the probate court found that O.B.L.’s
residential parent, appellee, and O.B.L. had the same surname. Appellant
again argues that they do not have the same surname. This argument lacks
merit as we found infra.
{¶30} Under the sixth Willhite factor, the probate court found that a name
change would be inconvenient and cause discomfort for O.B.L. Appellant
argues the court’s finding that O.B.L. is not mature enough to choose which
Scioto App. No. 20CA3920 11
surname he prefers also means that he is not mature enough to experience
discomfort or inconvenience due to having a different name. The court did
determine that O.B.L. was too young to make a meaningful choice between
surnames, but here claims that it would be inconvenient and discomforting for
O.B.L.’s surname to be changed. We agree with appellant that these findings
seem to be inconsistent. Therefore, we conclude that the court’s finding under
the sixth Willhite factor is not supported in the record.
{¶31} Under the seventh factor, the probate court found in favor of the
appellant in that he had maintained contact with the O.B.L., and has supported
him. This factor is not disputed by appellant, and weighs in his favor.
{¶32} Under the eighth and final factor, the probate court found that “the
[a]ppellant pursues this action to harm [appellee], rather than to promote the
best interest of [O.B.L.].” Appellant alleges that this is an “unfounded
conclusion.”
{¶33} At the hearing, appellant testified that while attempting to establish
parentage of the child, his relationship with appellee was “very negative” and “if
we did talk, it was just arguing[.]” He also testified that the process of
establishing parentage was “very frustrating,” and when asked if he blamed
appellee, he responded: “Absolutely.” On cross-examination, appellant read
the following passage from a text that he sent to appellee after learning she was
pregnant:
You owe me one fifty. This is bullshit. So happy, so happy that
I’m having a kid with a girl who smokes cigs and weed. I’ll be
letting your parents know neither of us are ready for, neither of us
are ready and you for sure aren’t. So glad I’m having a kid, so
Scioto App. No. 20CA3920 12
glad I’ll have a kid around. I’ll be over this week to collect my
money and talk to your parents. I’ll probably just shoot myself
because that’s, because that’s the better option. So, thanks for
everything.
{¶34} Appellant further testified that he and appellee disagreed regarding the
parenting of their son. Appellant’s mother described the relationship between her
son (appellant) and appellee as “rocky.” Appellee also testified “there is no
relationship” between she and appellant.
{¶35} The probate court, which personally viewed the testimony, had the
best ability to assess the demeanor or credibility of the witnesses. Hare, 4th
Dist. Scioto No. 95CA2395, 1996 WL 139673, *4 (Mar. 25, 1996). And within
its role as factfinder, the court inferred from the testimony that appellant was
angry about the pregnancy, and his decision to pursue a name change was for
the purpose of harming appellee. T.C., 4th Dist. Washington No. 9CA10, 2009-
Ohio-4325, ¶ 41.
{¶36} Finally, appellant argues that the probate court treated him in an
arbitrary and unfair manner when it admonished him for arguing that his son
“deserved” his surname, but did not admonish appellee for making the exact
same comment. Appellant asserts that the court’s “contempt for appellant
saturates its entire decision to deny his Application.” We agree with appellant
that the court’s action of admonishing only the appellant is arbitrary, and we find
no justification for it in the law; however, this action alone does not convince us
that the court’s ultimate decision to deny appellant’s application was an abuse
of discretion.
Scioto App. No. 20CA3920 13
{¶37} In sum, we conclude the following: (1) the only reason espoused by
appellant at the hearing in support of the name change application was
because it was customary, which is not a factor that legally supports a name
change; (2) the probate court’s findings under the Willhite factors were all
supported by the record except for the sixth factor; and (3) the court’s weighing
of those factors in denying appellant’s application was not unreasonable,
unconscionable, or arbitrary.
CONCLUSION
{¶38} Accordingly, because the probate court’s denial of appellant’s name
change application was not an abuse of discretion, we affirm the court’s
judgment of denial.
JUDGMENT AFFIRMED.
Scioto App. No. 20CA3920 14
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED and that appellant shall
pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the
Scioto County Common Pleas Court, Probate Division, to carry this judgment into
execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
Smith, P.J.: Concur in Judgment and Opinion.
Hess, J.: Concur in Judgment Only.
For the Court,
BY: ___________________________
Kristy S. Wilkin, 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.