[Cite as In re Name Change of D.G.S., 2017-Ohio-4110.]


STATE OF OHIO                   )                        IN THE COURT OF APPEALS
                                )ss:                     NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA                )

IN RE: NAME CHANGE OF D.G.S.                             C.A. No.   16CA0041-M



                                                         APPEAL FROM JUDGMENT
                                                         ENTERED IN THE
                                                         COURT OF COMMON PLEAS
                                                         COUNTY OF MEDINA, OHIO
                                                         CASE No.   2015 12 NC 00087

                                DECISION AND JOURNAL ENTRY

Dated: June 5, 2017



        SCHAFER, Presiding Judge.

        {¶1}    Petitioner-Appellant, M.L. (“Mother”), appeals the judgment of the Medina

County Court of Common Pleas, Probate Division, denying her application to change the name

of her minor son. For the reasons that follow, we affirm.

                                                    I.

        {¶2}    Mother and Respondent-Appellee, B.S. (“Father”), were divorced on December 4,

2015. Mother used the surname L. early in the marriage, but ultimately used the surname S. She

reverted to her maiden name following the divorce. While married, the parties adopted their

minor child, D.G.S., through a domestic adoption. Mother is of Italian descent and Father is of

German/Irish descent. D.G.S.’s biological mother is of Lebanese descent and his biological

father’s descent is unknown.

        {¶3}    At the time of adoption, Mother and Father changed D.G.S.’s name from his birth

name to D.L.S., the D. an Italian first name and the L. having been his first name given at birth.
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Although D.G.S.’s middle name was to have remained L. in deference to his biological mother,

Mother and Father had it legally changed during their marriage to the masculine form of

Mother’s middle name. Accordingly, D.G.S.’s first and middle name are reflective of Mother’s

Italian heritage and his surname reflective of Father’s heritage.

       {¶4}    While divorce proceedings were still pending, Mother was denied a prior

application to change D.G.S.’s surname in August 2015. Nonetheless, Mother either encouraged

or allowed D.G.S. to be identified by the surname L.-S. over Father’s objection. Later, when the

divorce became final, Mother filed a subsequent application to change the surname of D.G.S. to

L.-S. Father objected to the proposed name change and the probate court appointed a guardian

ad litem (“GAL”). Following a hearing and an in camera interview with D.G.S., the probate

court denied Mother’s application.

       {¶5}    Mother filed this timely appeal, raising two assignments of error for our review.

As both assignments of error raise similar issues, we elect to consider them together.

                                                 II.

                                      Assignment of Error I

       The trial court’s ruling is contrary to the weight of the evidence when
       applied to controlling legal [precedent].

                                     Assignment of Error II

       The trial court improperly applied a paternalistic standard in denying the
       surname change of minor child.

       {¶6}    In her first assignment of error, Mother contends that the probate court’s ruling is

contrary to the weight of the evidence. In her second assignment of error, Mother argues that

because the weight of the evidence weighs in favor of the name change, the trial court abused its
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discretion by “supplanting [its] own preference for paternalistic standards in place of the law.”

We disagree with both arguments.

        {¶7}    R.C. 2717.01 governs the proceedings for a change of name. R.C. 2717.01(A)(3)

provides that, following a proper application, a probate court may order a name change for

“reasonable and proper cause.” “[W]hen deciding whether to permit a name change for a minor

child * * *, 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, paragraph

one of the syllabus. The Supreme Court of Ohio has stated 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 the 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.

Id. 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 (1990). “If the probate

court has considered the appropriate factors, we will not substitute our judgment for its judgment

absent an abuse of discretion.” In re A.C., 9th Dist. Summit No. 27646, 2015-Ohio-4351, ¶ 11.

An abuse of discretion is more than an error of judgment; it means that the trial court was

unreasonable, arbitrary, or unconscionable in its ruling. Blakemore v. Blakemore, 5 Ohio St.3d

217, 219 (1983).
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       {¶8}    In this case, the probate court determined that based upon the totality of the

testimony and the evidence presented, that Mother had failed to establish that the name change

was in D.G.S.’s best interests. In making this determination, the probate court considered the

factors outlined by the Supreme Court of Ohio in Willhite. Specifically, the probate court found

that a surname change would adversely affect the child’s development and maintenance of a

relationship with his father, however, absent a name change, D.G.S. is and would continue to be

“firmly identified” as a member of Mother’s family. In making this determination, the court

gave significant weight to the fact that during its in camera interview, D.G.S. made the

statement, “my dad lives in an apartment, not with me anymore, * * * he used to live with me but

he left my mom and I” and that there was an “an obvious ‘us (mom and I) vs. him (dad)’

negative undertow” occurring in the family. Additionally, Mother used the name L. or L.-S. for

D.G.S. despite the denial of her previous application for name change and without the consent of

Father. The record further indicates that D.G.S. does not identify with Father’s German/Irish

ethnic heritage, but rather his mother’s Italian heritage and that D.G.S. has identified his surname

as just L. to his teacher. Additionally, D.G.S. is being brought-up in his mother’s religion and

Mother objects to Father taking D.G.S. to his church.

       {¶9}    The court also noted that “[t]he evidence demonstrates that [D.G.S.] is currently

firmly identified as a member of the [L.] family.”         Specifically, the court noted that his

relationship with his extended relatives would not be affected absent a name change. Indeed,

Mother testified that D.G.S. interacts with her family on a regular basis, but that Father’s

extended family is not in the area. The record also demonstrates that despite his biological

Lebanese heritage, D.G.S. identifies as Italian, has an Italian first and middle name, and wears

Italian clothes and shoes.
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       {¶10} D.G.S.’s surname has been the same since his adoption. Upon conducting an in

camera interview, the probate court found that D.G.S. lacked sufficient maturity to express a

meaningful preference in his surname. The probate court specifically noted that although D.G.S.

is “very bright,” he could be easily influenced because of his age and lack of understanding of

the adult world.    The court gave significant weight to the fact that during the in camera

interview, D.G.S. “appeared somewhat prepped with an agenda and practiced answers in support

of [Mother]’s position as demonstrated by his physical mannerisms and presentation.”

Additionally, the court noted that D.G.S. “engaged in physical unease, avoidance and change the

subject manifestation of actions” when the discussion occurred in a fashion other than “mom

versus dad.”

       {¶11} The probate court also found that Mother had not established with clear and

convincing evidence any demonstrable level of embarrassment, discomfort, or inconvenience in

maintaining D.G.S.’s current surname. Although the trial court did not put emphasis on any

particular evidence, the court recognized in its journal entry that Mother testified that absent the

name change, in her professional opinion travelling with D.G.S. would be embarrassing and

difficult because she will be required to travel with other documents and may be delayed in

customs and immigration. Father, however, testified that based upon his professional experience

that travel documents and identification would be harder if the name change were granted.

Mother also testified that she felt embarrassed at a pre-kindergarten registration because “despite

her school/church related involvement * * * a registration packet was not available in the name

of [L.] but in the name of [S.].” The court noted, however, that “the lack of a packet did not

adversely affect kindergarten registration, nor was there testimony that the child felt any

embarrassment for the faux pas.” The court stated “[D.G.S. appears well adjusted at school and
                                                 6


that the school appears to readily comprehend that [D.G.S.]’s parents are divorced and includes

both in communications, etc.”

          {¶12} The probate court stated that Mother had advised the court that Father maintained

contact with D.G.S. and was current in his support. The court found that both parents are

residential parents and legal custodians pursuant to their shared parenting plan under the divorce

decree.     Additionally, the court found that “[t]he disparity in parenting time seems more

traceable to the work related schedule of [Father] and the fact that [Mother] has greater time

available to spend with D.G.S. given her work related disability.”

          {¶13} The probate court also considered the testimony of the GAL appointed in this

case. The GAL opined that the name change should be denied because: (1) D.G.S.’s first and

middle name were already Italian; (2) although D.G.S. identified with the name [L.], this may

have been due to Mother using the surname for D.G.S. despite the denial of her prior application;

(3) the name change could diminish D.G.S.’s identification with Father; and (4) no information

was provided to the GAL with regard to embarrassment, discomfort, or inconvenience due to

D.G.S. having a different surname from Mother and that any concerns of embarrassment are

merely hypothetical.

          {¶14} Finally, we determine that Mother’s claim that the probate court used “an archaic

paternalistic” standard is without merit. In Bobo and then again in Willhite, the Supreme Court

of Ohio advised courts “‘to refrain from defining the best-interest-of-the-child test as purporting

to give primary or greater weight to the father’s interest in having the child bear the paternal

surname.’” Willhite, 85 Ohio St.3d at 32, quoting Bobo at 334. However, in support of her

argument, Mother does not point to any findings of the probate court. Instead, Mother only

points to Father’s testimony that he did not want D.G.S.’s surname changed and the testimony of
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the GAL that Father believed a child should have his father’s surname and that Father carried

anger from the divorce into the present matter. Indeed, the court only considered the best

interests of the child and did not consider the interests of the either parent.

       {¶15} Accordingly, we conclude that the probate court considered the appropriate

factors and, thus, did not abuse its discretion when it denied Mother’s application to change

D.G.S.’s surname.

       {¶16} Therefore, Mother’s first and second assignments of error are overruled.

                                                  III.

       {¶17} Mother’s assignments of error are overruled. Therefore, the judgment of the

Medina County Court of Common Pleas, Probate Division, is affirmed.

                                                                                  Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.
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      Costs taxed to Appellant.




                                               JULIE A. SCHAFER
                                               FOR THE COURT



CARR, J.
TEODOSIO, J.
CONCUR.

APPEARANCES:

PAMELA J. MACADAMS, Attorney at Law, for Appellant.

STEVE BAILEY, Attorney at Law, for Appellee.

DEREK CEK, Guardian ad Litem.
