In re Change of Name K.S.G. to K.S.G-B.

[Cite as In re Change of Name K.S.G. to K.S.G-B., 2020-Ohio-4515.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HANCOCK COUNTY
IN RE: CHANGE OF NAME OF:
CASE NO. 5-20-03
K.S.G. TO K.S.G-B.
[J. G. - APPELLANT] OPINION
Appeal from Hancock County Common Pleas Court
Probate Division
Trial Court No. 20186067
Judgment Affirmed
Date of Decision: September 21, 2020
APPEARANCES:
James S. Adray for Appellant
Howard A. Elliott for Appellee
Case No. 5-20-03
ZIMMERMAN, J.
{¶1} Petitioner-appellant, J.G. (“Father”), appeals the December 13, 2019
judgment of the Hancock County Court of Common Pleas, Probate Division,
denying his objections to the magistrate’s decision of June 19, 2019 and granting
the Respondent-appellee, C.B.’s (“Mother”) (collectively “parties”) request to
hyphenate the surname of the parties’ minor child, K.S.G. For the reasons that
follow, we affirm the decision of the trial court.
Procedural History
{¶2} On December 7, 2018, Mother filed a petition for a name change of the
parties’ minor child, K.S.G. (born in 2016).1 (Doc. Nos. 1, 4). Specifically, Mother
sought to change K.S.G.’s surname from that of Father’s surname (only) to a
hyphenated surname which included both Father’s and Mother’s surnames.2 (Id.).
{¶3} On June 7, 2019, a hearing on the name-change petition was conducted
by the trial court’s magistrate. (June 7, 2019 Tr. at 4); (Doc. Nos. 15, 19). On June
19, 2019, the magistrate issued a decision recommending that the trial court grant
Mother’s request to hyphenate K.S.G.’s surname to K.S.G-B. (Doc. No. 15). Father
filed objections to the magistrate’s decision on July 2, 2019. (Doc. Nos. 16, 22).
1
At the time of the filing of Mother’s petition, the parties had pending litigation in Hancock County Court
of Common Pleas, Juvenile Division, as to parenting time and litigation from an unspecified time frame to
recover Mother’s personal property from Father in Wood County. (June 7, 2019 Tr. at 12, 15-16); (Doc.
Nos. 13, 19, 26).
2
Father did not file a response to Mother’s petition.
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Mother filed a memorandum in opposition to Father’s objections on August 13,
2019. (Doc. No. 23). On December 13, 2019, the trial judge issued its independent
review and judgment entry denying the Father’s objections, and approving and
adopting the magistrate’s recommendation to hyphenate K.S.G.’s surname. (Doc.
No. 24).
{¶4} Father filed his appeal on January 10, 2020, asserting the following
assignments of error. (Doc. Nos. 25, 26, 27, 28).
Assignments of Error
Assignment of Error I
Respondent’s Motion For Dismissal At The Close Of Plaintiff’s
Case Should Have Been Granted, And Because It Was Denied The
Respondent Was Required To Carry The Burden As To Why It
Should Not Be Granted Which Violates In Re Willhite [sic]
Assignment of Error II
Name Changes Require Negative Acts By A Parent When The
Surname Is Given By Both Parents Which A Change In
Circumstance Effecting The Child [sic]
Assignment of Error III
There Is Insufficient Evidence Other Than Speculation By The
Magistrate To Support Any Allegation That The “Best Interest”
Of The Child Are Served By The Name Change [sic]
Assignment of Error IV
Magistrate’s Adoption Of The Reasoning Of The Plaintiff Is
Insufficient To Support A Finding That “Shows By Clear And
Convincing Evidence That The Request Is Both Reasonable And
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Proper And In The Child’s Best Interest” Is Outside The Law In
That There Was Not Presented Sufficient Evidence On The Best
Interests [sic]
Assignment of Error V
The Court Was To Take Judicial Notice Of The Juvenile Court
Case, [J.G. V. C.B.], Case No. 20164098. The Guardians Report
Therein Does Not Support That The Best Interests Of The Child
Are Served By The Name Change And Where The Guardian
Finds That Mother Is Repeatedly Trying To Disrupt His
Parenting Time [sic]
Assignment of Error VI
R.C. §2117.01 [sic] As Applied Is Unconstitutional As There Is No
Standard Set So The Court Used The “Best Interests” Test [sic]
{¶5} We will begin by addressing Father’s fifth assignment of error;
followed by his second, third, and fourth assignments of error together; followed
then by his first assignment of error; and lastly, his sixth assignment of error.
Assignment of Error V
The Court Was To Take Judicial Notice Of The Juvenile Court
Case, [J.G. V. C.B.], Case No. 20164098. The Guardians Report
Therein Does Not Support That The Best Interests Of The Child
Are Served By The Name Change And Where The Guardian
Finds That Mother Is Repeatedly Trying To Disrupt His
Parenting Time [sic]
{¶6} In the Father’s fifth assignment of error, Father argues that the trial
court erred by not taking judicial notice of the GAL report previously filed in the
parties’ custody case in the Hancock County Common Pleas Court, Juvenile
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Division (“HCCPC-JD”) because the GAL report would not support the conclusion
that a name change is in K.S.G.’s best interest.
Standard of Review
{¶7} On appeal, we review decisions by a trial court regarding judicial notice
under an abuse-of-discretion standard. Wright v. Cramer, 2d Dist. Montgomery No.
27586, 2018-Ohio-764, ¶ 27, citing Stamm v. Stamm, 6th Dist. Fulton No. F-08-009,
2009-Ohio-4924, ¶ 46; Enviropro Plastics, Inc. v. Trickett, 5th Dist. Stark No. 2013
CA 00195, 2014-Ohio-1707, ¶ 46, citing Molitor v. Gaddis, 5th Dist. Morrow No.
CA 875, 1999 WL 770688, *1 (Aug. 25, 1999). “The term ‘abuse of discretion’ * *
* implies that the [trial ]court’s attitude is unreasonable, arbitrary or
unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
Analysis
{¶8} We recently held that “‘[j]udicial notice allows a court to accept, “for
purpose of convenience and without requiring a [party’s] proof, * * * a well-known
and indisputable fact.”’” In re Adoption of L.S., 3d Dist. Hancock No. 5-19-20,
2020-Ohio-224, ¶ 13, quoting In re C.Y., 6th Dist. Lucas No. L-13-1184, 2014-
Ohio-1144, ¶ 16, quoting State v. Blaine, 4th Dist. Highland No. 03CA9, 2004-
Ohio-1241, ¶ 12. Under the Ohio Rules of Evidence, the scope of Evid.R. 201
governs exclusively adjudicative facts (i.e., the facts of the case). See Evid.R.
201(A).
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A judicially noticed fact must be one not subject to reasonable dispute
in that it is either (1) generally known within the territorial jurisdiction
of the trial court or (2) capable of accurate and ready determination
by resort to sources whose accuracy cannot reasonably be questioned.
Evid.R. 201(B). Under Evid.R. 201(D), “[a] court shall take judicial notice if
requested by a party and supplied with the necessary information.” (Emphasis
added.) Evid.R. 201(D).
{¶9} In Ohio, a trial court may only take judicial notice of prior proceedings
in the immediate case and may not take judicial notice of prior proceedings in the
same court involving a separate case. See In re Adoption of L.S., 2020-Ohio-224,
at ¶ 13. See also D & B Immobilization Corp. v. Dues, 122 Ohio App.3d 50, 53 (8th
Dist.). This is warranted, even if, that separate case involves identical facts, issues,
and litigants with the same magistrate or trial judge presiding. See Pollard v. Elber,
6th Dist. Erie, 2018-Ohio-4538, ¶ 17. This rationale facilitates proper appellate
review. Id., citing In re C.Y., 6th Dist. Lucas No. L-13-1184, 2014-Ohio-1144, ¶
16. That is, the record of the separate case in the prior proceeding is not currently
before us, on appeal, and thus, we cannot review whether the trial court correctly
interpreted the separate case in the prior proceeding. Campbell v. Ohio Adult Parole
Auth., 10th Dist. Franklin No. 97APE05-616, 1997 WL 678199, *2 (Oct. 28, 1997),
citing The Deli Table, Inc. v. Great Lakes Mall, 11th Dist. Lake No. 95-L-012, 1996
WL 761984, *11 (Dec. 31, 1996). See Ohio Medical Indemnity, Inc. v. Poe, 3d Dist.
Hancock No. 5-77-26, 1978 WL 215841, *5 (May 24, 1978) (holding that “[a] court
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cannot take judicial notice of other cases in that court but must require proof of such
cases by evidence or stipulation * * *.”).
{¶10} “However, on this issue, the Supreme Court of Ohio has also held that
‘a trial court is not required to suffer from institutional amnesia.’” In re Adoption of
L.S., 2020-Ohio-224, at ¶ 14, quoting Indus. Risk Insurers v. Lorenz Equip. Co., 69
Ohio St.3d 576, 580 (1994).
‘[I]t is axiomatic that a trial court may take judicial notice of its own
docket’—including the docket in a separate case. Indus. Risk
Insurers[, supra, at 580]. The trial court cannot take judicial notice of
a docket ‘for the truth of the matters asserted in the other litigation,’
however, but only ‘to establish the fact of such litigation.’ State ex rel.
Coles v. Granville, 116 Ohio St.3d 231, 2007-Ohio-6057, 877 N.E.2d
968, ¶ 20, quoting Liberty Mut. Ins. Co. v. Rotches Pork Packers, Inc.,
969 F.2d 1384, 1388 (2d Cir.1992), and Kramer v. Time Warner, Inc.,
937 F.2d 767, 774 (2d Cir.1991).
Id., quoting Pollard at ¶ 17. See Natl. Distillers & Chem. Co. v. Limbach, 71 Ohio
St.3d 214, 216 (1994) (holding that the law allows a court to take “‘judicial notice’
of [its] docket records” but that the relevant “cases do not state that we may take
judicial notice of evidence contained in the transcripts.”).
{¶11} It is unclear from our review of the record on appeal whether the
parties were in agreement as to the magistrate’s taking of judicial notice, and what
records were to be judicially noticed. (See June 7, 2019 Tr. at 17). Moreover, the
magistrate never addressed whether he would take judicial notice of the HCCPC-
JD’s records that contained the GAL report in question. (Id.). Importantly, Father’s
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trial counsel never supplied a copy of the GAL report to the magistrate or in his
objections to the magistrate’s decision to the trial judge. See Evid.R. 201(D).
{¶12} App.R. 9(A) provides in its pertinent part:
(1) The original papers and exhibits thereto filed in the trial court,
the transcript of proceedings, if any, including exhibits, and a certified
copy of the docket and journal entries prepared by the clerk of the trial
court shall constitute the record on appeal in all cases.
As such, the GAL report contained in the HCCPC-JD’s record is not part of the
record provided by Father, on appeal, and thus, we are precluded from considering
it. See Sandys v. Sandys, 3d Dist. Defiance No. 4-14-20, 2015-Ohio-2208, ¶ 35;
Community First Bank v. Holland, 3d Dist. Hardin No. 6-05-04, 2005-Ohio-4751,
¶ 10; Lakkapragada v. Lakkapragada, 2d Dist. Montgomery No. 25883, 2014-
Ohio-331, ¶ 20, citing App.R. 9.
{¶13} Accordingly, we cannot conclude that the trial court abused its
discretion by not taking judicial notice of a document that was never supplied in the
first instance as an exhibit or by stipulation (a requirement of Evid.R. 201(D)) and
when it was not contained within the trial court’s file on appeal.
{¶14} For these reasons, his fifth assignment of error is overruled.
Assignment of Error II
Name Changes Require Negative Acts By A Parent When The
Surname Is Given By Both Parents Which A Change In
Circumstance Effecting The Child [sic]
Assignment of Error III
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There Is Insufficient Evidence Other Than Speculation By The
Magistrate To Support Any Allegation That The “Best Interest”
Of The Child Are Served By The Name Change [sic]
Assignment of Error IV
Magistrate’s Adoption Of The Reasoning Of The Plaintiff Is
Insufficient To Support A Finding That “Shows By Clear And
Convincing Evidence That The Request Is Both Reasonable And
Proper And In The Child’s Best Interest” Is Outside The Law In
That There Was Not Presented Sufficient Evidence On The Best
Interests [sic]
{¶15} In Father’s second, third, and fourth assignments of error, Father
contends that the trial court’s findings as to the factors outlined by the Supreme
Court of Ohio in In re Willhite, 85 Ohio St.3d 28 (1999), are not supported by
sufficient evidence and thus, are against the manifest weight of the evidence. Father
also asserts that there should be an entirely different legal standard applied (i.e.,
change in circumstances) in hyphenated-name-change proceedings.
Standard of Review
{¶16} 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, 581 (8th Dist.1995),
citing Karches v. Cincinnati, 38 Ohio St.3d 12, 19 (1988). “The term ‘abuse of
discretion’ implies that the [trial ]court’s attitude is unreasonable, arbitrary or
unconscionable.” Blakemore, 5 Ohio St.3d at 219.
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{¶17} As long as the trial court’s judgment is supported by competent,
credible evidence, it must be affirmed under the civil-manifest-weight-of-the-
evidence standard. In re K.C.M., 5ths Dist. Fairfield No. 2019 CA 00008, 2019-
Ohio-5182, ¶ 51, citing C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279(1978). See also In re Crisafi at 581 citing Seasons Coal Co. v. Cleveland, 10 Ohio
St.3d 77, 82 (1984) and C.E. Morris Co. at 279; Gevedon v. Ivey, 2d Dist.
Montgomery No. 21609, 2007-Ohio-2970, ¶ 60. Unlike the criminal-manifest-
weight-of-the-evidence standard outlined in State v. Thompkins, 78 Ohio St.3d 380(1997), “the issues of ‘sufficiency of the evidence’ and ‘manifest weight’ have
essentially merged in civil cases. Gevedon at ¶ 60. “Mere disagreement with the
trial court’s findings is not sufficient to overturn them.” Id. at ¶ 59. This deference
to the trial court’s judgment and findings of fact (upon which it rests) is predicated
on information that cannot necessarily be conveyed to us through the printed record.
See Crisafi at 581. See also Trickey v. Trickey, 158 Ohio St. 9, 13 (1952), (“In
proceedings involving the custody and welfare of children the power of the trial
court to exercise discretion is peculiarly important. The knowledge obtained
through contact with the observation of the parties and through independent
investigation cannot be conveyed to a reviewing court by printed record.”).
Legal Standard in Name-Change Proceedings
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{¶18} The probate court may order a change of name if the name-change
petition demonstrates “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, at 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.
Willhite, 85 Ohio St.3d 28, at paragraph two of the syllabus, citing Bobo v. Jewell,
38 Ohio St.3d 330 (1988), paragraph two of the syllabus, and In re Change of Name
of Andrews, 235 Neb. 170, 454 N.W.2d 488 (1990), followed.
Analysis
{¶19} The record supports that the magistrate considered each of the factors
set forth in Willhite in his decision. (Doc. No. 15). Specifically, the magistrate
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considered the effect of the name change on the preservation and development of
K.S.G.’s relationship with each parent when he determined that both parents were
bonded with K.S.G. (Doc. No. 15); (See June 7, 2019 Tr. at 6, 13-14, 16, 41).
Moreover, the magistrate determined that Mother’s name-change petition for
K.S.G. was not “motivated by anything other than her belief that it would benefit
[K.S.G.] to have her name changed.” (Id.); (see id. at 9, 13-14). The magistrate
further found (given the difficulty that the parties have being civil and respectful to
each other) that the hyphenation of K.S.G.’s surname would permit K.S.G. to be
associated with both parents as well as their extended families. (Id.); (see id.).
{¶20} The magistrate also found that Mother’s request for a hyphenated-
surname would both identify K.S.G. as part of each parents’ family and decrease
the likelihood of parental alienation. (Doc. No. 15). Moreover, the magistrate
distinguished the instant case from In re: the Name Change of: M.J., 3d Dist.
Auglaize No. 2-18-12, 2019-Ohio-2065, on the basis that the magistrate did not
remove any connection K.S.G. has with her father, but rather, permitted Mother to
have the same family identification (with K.S.G.) as Father. (Id.).
{¶21} Next, the magistrate considered the length of time that K.S.G. has used
a surname by determining that K.S.G. is not yet of school age (she was three at the
time of the name-change hearing) and that K.S.G. has only been identified by her
present surname at medical appointments and when she is with Father. (Id.); (see
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June 7, 2019 Tr. at 6, 27). Further, the magistrate made the finding that K.S.G. is
aware of her Mother’s surname. (Doc. No. 15).
{¶22} The magistrate also considered K.S.G.’s lack of maturity to be able to
express a meaningful preference as to her surname when the magistrate determined
that K.S.G. was “too young to express a preference.” (Id.); (see June 7, 2019 Tr. at
6).
{¶23} The magistrate, thereafter, considered whether K.S.G.’s surname is
different from the surname of K.S.G.’s residential parent (i.e., Mother). The
magistrate found this of “significant importance” to Mother. (Id.); (see June 7, 2019
Tr. at 9, 13-14). Here, the magistrate found that “[b]oth parents play a significant
role in [K.S.G.’s] life, yet only one family unit is being recognized in [K.S.G.’s]
current” surname. (Id.); (see id. at 9, 13-14, 27).
{¶24} Next, the magistrate considered the embarrassment, discomfort, or
inconvenience that may result when K.S.G. bears a surname different from her
Mother. The magistrate found that identification with Father’s surname (alone)
would necessitate constant explanation on the part of K.S.G. regarding her surname
and a hyphenated surname would be an acknowledgment that she can be identified
with two family units. (Id.); (see id. at 9, 13-14).
{¶25} Then, the magistrate considered whether Father maintained contact
with and support of K.S.G. The magistrate found that Father and K.S.G. enjoy a
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great deal of time together, and that “there was no reliable evidence that the [F]ather
failed to make his child support payments.” (Id.); (see id. at 40-42).
{¶26} Lastly, the magistrate considered any other factor relevant to K.S.G.’s
best interest. Once more, the magistrate determined that K.S.G.’s parents were not
able to co-parent K.S.G. Precisely, the magistrate found that K.S.G.
has been the source of litigation for most of her young life; and the
present time is no different. A single name by either of these parents
would run the risk of alienating the child from the other parent.
However, with the hyphenated name both of these parents are
represented in [K.S.G.]. Both families are creating a history with
[K.S.G.]. And most importantly, the parents are part of a sharing of
sort; and hopefully will understand that [K.S.G.] is not chattel to fight
over, but instead is a little person they brought into this world to
nurture.
(Id.); (see id. at 13-14, 42). Addressing the trial court’s independent review of the
magistrate’s decision, the trial judge stated the following:
The Court hereby finds that the Magistrate applied the correct law and
analysis. Accordingly, the Court finds in its independent review of
the facts and agrees with the Magistrate’s Decision. The Magistrate’s
Decision details the factual findings for each best interest factor as
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required in determining the sufficiency of a name change petition.
Accordingly, the Court finds that the Magistrate properly determined
the factual issues and appropriately applied the law as required by
Civ.R. 53(D)(4)(d).
(Doc. No. 24).
{¶27} On appeal, Father claims that the trial court’s findings related to the
factors articulated by the Supreme Court of Ohio in Willhite are not supported by
competent, credible evidence. To the contrary, there is some competent, credible
evidence supporting each of the trial court’s findings. Therefore, we find no merit
in Father’s contention that the judgment of the trial court is against the manifest
weight of the evidence.
{¶28} Next, we turn to the Father’s assertion that there should be a different
standard (i.e., change in circumstances) to hyphenated-name-change proceedings.
Notably, Father made no objection to the trial court’s application of the Willhite
standard based upon this change-in-circumstances standard. The failure to object
in the trial court is a failure to preserve error for proper review. Rodak v. Erskine,
7th Dist. Mahoning No. 74 C.A. 69, 1974 WL 184085, *2 (Dec. 30, 1974),
(concluding that the “failure to object at the trial stage is a failure to preserve error
for proper review.”). Thus, the Father’s argument to us is beyond the arguments he
raised before the trial court. “Arguments that were not raised in the trial court cannot
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be raised for the first time on appeal.” JPMorgan Chase Bank, Natl. Assn. v.
Burden, 9th Dist. Summit No. 27104, 2014-Ohio-2746, ¶ 12. Accordingly, we need
not address this argument.
{¶29} Based on our review of the record, we cannot conclude that the trial
court abused its discretion by granting Mother’s application to hyphenate K.S.G.’s
surname to K.S.G-B. Because we find that there is some competent, credible
evidence supporting the trial court’s judgment that it considered whether it was in
the best interest of K.S.G in its determination that a reasonable and proper cause had
been established by Mother to support the hyphenation of K.S.G.’s name, we will
not reverse that judgment as being against the manifest weight of the evidence.
{¶30} Therefore, Father’s second, third, and fourth assignments of error are
overruled.
Assignment of Error I
Respondent’s Motion For Dismissal At The Close Of Plaintiff’s
Case Should Have Been Granted, And Because It Was Denied
The Respondent Was Required To Carry The Burden As To
Why It Should Not Be Granted Which Violates In Re Willhite
[sic]
{¶31} In his first assignment of error, Father argues that the trial court’s
denial of his motion at the close of Mother’s case-in-chief under Civ.R. 41(B)(2) is
error (in that) it shifted the burden to Father to prove why his motion should not be
granted violating Willhite, and thus, is against the manifest weight of the evidence.
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Standard of Review
{¶32} “Civil Rule 41(B)(2) permits a defendant in a nonjury action to move
for dismissal of the action after the close of the plaintiff’s case.” Mohn v. Ashland
Cty. Chief Med. Examiner, 5th Dist. Ashland No. 14-COA-031, 2015-Ohio-1985, ¶
28. “Under Civ.R. 41(B)(2), a trial court may consider ‘both the law and the facts.’”
Mueller v. All-Temp Refrig., Inc., 3d Dist. Van Wert No. 15-13-08, 2014-Ohio-
2718, ¶ 39, quoting Ohio Valley Associated Bldrs. & Constrs. v. Rapier Elec., Inc.,
12th Dist. Butler Nos. CA2013-07-110 and CA2013-07-121, 2014-Ohio-1477, ¶ 23.
“Therefore, under the rule, the trial judge as the trier of fact does not view the
evidence in a light most favorable to plaintiff, but instead actually determines
whether the plaintiff has proven the necessary facts by the appropriate evidentiary
standard.” Mohn at ¶ 28, citing L.W. Shoemaker, M.D., Inc. v. Connor, 81 Ohio
App.3d 748, 752 (10th Dist.1992) and Harris v. Cincinnati, 79 Ohio App.3d 163,
168 (1st Dist.1992). See also Mueller at ¶ 40 (noting that the trial court does not
review “‘the evidence in the light most favorable to the plaintiff but is required only
to determine whether the plaintiff has made out his case by a preponderance of the
evidence.’”), quoting Jacobs v. Bd. of Cty. Commrs. of Auglaize Cty., 27 Ohio
App.2d 63, 65 (3d Dist.1971). “Even if the plaintiff has presented a prima facie
case, dismissal is still appropriate where the trial court determines that the necessary
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quantum of proof makes it clear that plaintiff will not prevail.” Mohn at ¶ 28, citing
Fenley v. Athens Cty. Genealogical Chapter, 4th Dist. Athens No. 97CA36, 1998
WL 295496, *3 (May 29, 1998). See also Mueller at ¶ 39 (“‘“The premise behind
the rule is if the court in a bench trial disbelieves the plaintiff’s facts or disagrees
with the plaintiff’s urged application of the law, then there is no reason to hear the
defendant’s case.”’”), quoting Ohio Valley Associated Bldrs. at ¶ 22, quoting Martin
v. Lake Mohawk Property Owner's Assn., 7th Dist. Carroll No. 04 CA 815, 2005-
Ohio-7062, ¶ 19.
{¶33} A trial court’s ruling on a Civ.R. 41(B)(2) motion will be set aside on
appeal only if it is erroneous as a matter of law or against the manifest weight of the
evidence. Mueller at ¶ 40, citing Jacobs at 65; Mohn at ¶ 29, citing Ogan v. Ogan,
122 Ohio App.3d 580, 583 (12th Dist.1997). Under the civil-manifest-weight-of-
the-evidence standard, we neither weigh the evidence nor judge the credibility of
witnesses; rather, our role is to determine whether the trial court’s judgment is
supported by some competent, credible evidence. Mohn at ¶ 29, citing C.E. Morris
Co., 54 Ohio St.2d 279, at syllabus; Univ. of Findlay v. Martin, 3d Dist. Hancock,
2017-Ohio-7016, ¶ 10 (“Judgments supported by some competent, credible
evidence will not be reversed on appeal as being against the manifest weight of the
evidence.”), citing Phillimore v. Butterbaugh, 5th Dist. Richland No. 14CA32,
2014-Ohio-4641, ¶ 25.
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Analysis
{¶34} Here, Father’s trial counsel moved for a directed verdict (under
Willhite and In re: the Name Change of: M.J.) at the conclusion of Mother’s case-
in-chief, which was overruled by the magistrate. (June 7, 2019 Tr. at 34-38). Father
argues that the magistrate should have granted his request for a directed verdict. We
disagree, and point to our analysis of Father’s second, third, fourth, and fifth
assignments of error supporting the hyphenation of K.S.G.’s surname. As such, the
trial court’s decision is supported by competent, credible evidence, and
consequently, is not against the manifest weight of the evidence. Thus, we conclude
this assignment of error is without merit.
{¶35} Accordingly, Father’s first assignment of error is overruled.
Assignment of Error VI
R.C. §2117.01 [sic] As Applied Is Unconstitutional As There Is No
Standard Set So The Court Used The “Best Interests” Test [sic]
{¶36} In his sixth assignment of error, Father argues that R.C. 2717.01 is
unconstitutional “as-applied” to Father. Specifically, Father contends that R.C.
2717.01 fails to provide guidelines that designate what either party to a contested-
name change must show resulting in an equal-protection violation under the Due
Process Clause as applied through the Fourteenth Amendment and Article I, Section
2 of the Ohio Constitution.
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Case No. 5-20-03
Standard of Review
{¶37} This court reviews a constitutional challenge de novo. In re Adoption
of N.F., 3d Dist. Logan No. 2019-Ohio-5380, ¶ 11, citing State v. Hudson, 3d Dist.
Marion, 2013-Ohio-647, ¶ 27, citing Akron v. Callaway, 9th Dist. Summit No.
22018, 2005-Ohio-4095, ¶ 23 and Andreyko v. Cincinnati, 1sts Dist. Hamilton No.
C-020606, 2003-Ohio-2759, ¶ 11. “‘De novo review is independent, without
deference to the lower court’s decision.’” Id., quoting Hudson at ¶ 27, citing Ohio
Bell Tel. Co. v. Pub. Util. Comm. of Ohio, 64 Ohio St.3d 145, 147 (1992).
Analysis
{¶38} “‘“All statutes have a strong presumption of constitutionality. * * *
Before a court may declare unconstitutional an enactment of the legislative branch,
‘it must appear beyond a reasonable doubt that the legislation and constitutional
provisions are clearly incompatible.’”’” Id., at ¶ 12, quoting State v. Stoffer, 2d Dist.
Montgomery No. 26268, 2015-Ohio-352, ¶ 8, quoting Arbino v. Johnson &
Johnson, 2d Dist. Montgomery No. 26268, 2015-Ohio-352, ¶ 25, quoting State ex
rel. Dickman v. Defenbacher, 164 Ohio St. 142 (1955), paragraph one of the
syllabus.
{¶39} “‘A party may challenge the constitutionality of a statute with either a
facial challenge or an as-applied challenge.’” Id., at ¶ 13, quoting Simpkins v. Grace
Brethren Church of Delaware, Ohio, 149 Ohio St.3d 307, 2016-Ohio-8118, ¶ 20.
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Case No. 5-20-03
The distinction between the two types of constitutional challenges is important
because the standard of proof is different depending on which type of challenge is
lodged. Id., citing Wymsylo v. Bartec, Inc., 132 Ohio St.3d 167, 2012-Ohio-2187,
¶ 20. “‘To prevail on a facial constitutional challenge, the challenger must prove
the constitutional defect, using the highest standard of proof, which is also used in
criminal cases, proof beyond a reasonable doubt.’” Id., quoting State ex rel. Ohio
Congress of Parents & Teachers v. State Bd. of Edn., 111 Ohio St.3d 568, 2006-
Ohio-5512, ¶ 21, citing Dickman at paragraph one of the syllabus. On the other
hand, “‘[t]o prevail on a constitutional challenge to the statute as applied, the
challenger must present clear and convincing evidence of the statute’s constitutional
defect.’” Id., quoting State ex rel. Ohio Congress of Parents & Teachers at ¶ 21,
citing Belden v. Union Cent. Life Ins. Co., 143 Ohio St. 329 (1944), paragraph six
of the syllabus. Because Father argues that R.C. 2717.01 “as-applied” is
unconstitutional, he must present clear and convincing evidence of R.C. 2717.01’s
constitutional defect. See State ex rel. Ohio Congress of Parents & Teachers at ¶
25.
{¶40} Typically, we would first address constitutional standing; however,
the record reveals that Father’s argument was not raised in the trial court. (Doc. No.
16). Father’s argument mirrors his argument set forth in his second assignment of
error, which we rejected for his failure to preserve for proper review. Rodak, 1974
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WL 184085, at *2. We note that when Father raised his constitutional challenge
below the focus was on the disparate treatment of children (depending on the marital
status of the parents) and not his request for an extension of existing law which is
being raised for the first time on appeal. See JPMorgan Chase Bank, Natl. Assn.,
2014-Ohio-2746, at ¶ 12. Since we rejected in Father’s second assignment of error
for failure to raise this argument in the trial court, we reject this argument for the
reasons set forth above.
{¶41} Accordingly, Father’s sixth assignment of error is overruled.
{¶42} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
SHAW, P.J. and WILLAMOWSKI, J., concur.
/jlr
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