[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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