[Cite as Jones v. Smith , 2010-Ohio-4461.]


                      IN THE COURT OF APPEALS OF OHIO
                         FOURTH APPELLATE DISTRICT
                             LAWRENCE COUNTY

IN THE MATTER OF:               :
                                :
DEREK R. JONES,                 : Case No. 10CA4
                                :
     Petitioner-Appellee,       :
                                : Released: September 16, 2010
     vs.                        :
                                :
SASHA A. SMITH,                 : DECISION AND JUDGMENT
                                : ENTRY
     Respondent-Appellant.      :
_____________________________________________________________
                          APPEARANCES:

Brigham M. Anderson, Ironton, Ohio, for Respondent-Appellant.

Brenda K. Neville, Chesapeake, Ohio, for Petitioner-Appellee.
_____________________________________________________________

McFarland, P.J.:

        {¶1}       Respondent-Appellant, Sasha A. Smith, appeals the decision

of the Lawrence County Court of Common Pleas, Probate-Juvenile Division.

The trial court affirmed the magistrate’s decision granting the request of

Petitioner-Appellee, Derek R. Jones, to change the surname of the parties’

child. Smith argues that the court’s decision was error because, in granting

the name change, the court did not properly follow the factors listed in Bobo

v. Jewell and In re Willhite and instead created a new test. We disagree.

Because the trial court performed the required best-interest analysis and did
Lawrence App. No. 10CA4                                                         2


not abuse its discretion in doing so, we overrule Smith's assignment of error

and affirm the decision of the court below.

                                    I. Facts

      {¶2}     Appellant Smith gave birth to a child in March of 2008; at the

time, she was unmarried. Smith gave the child her surname and did not list

the name of the father on the birth certificate. Approximately three months

later, Appellee Jones initiated judicial proceedings to establish paternity and

to determine associated issues, including child support and parenting time.

Jones also requested that the child’s surname be changed to that of his own.

The matter proceeded to trial before the magistrate and all matters, except

the name change, were agreed upon or decided by the court.

      {¶3}     After taking the matter under advisement, the magistrate

issued a decision finding it was in the child’s best interest to change the

child’s surname from Smith to Jones. Smith filed objections to the

magistrate’s decision and the matter was scheduled for hearing before the

trial court. After a full hearing, the trial court subsequently upheld the

magistrate’s decision. Smith then appealed that decision to this court.

      {¶4}     We considered the appeal in Jones v. Smith, 4th Dist. No.

09CA9, 2010-Ohio-131. Finding that certain language in the trial court's

judgment entry created ambiguity as to whether it had conducted a de novo
Lawrence App. No. 10CA4                                                        3


or a deferential review of the magistrate’s decision, we remanded. Upon

remand, the trial court filed a judgment entry which, in no uncertain terms,

makes it clear that it conducted an independent and non-deferential review

of the magistrate's decision. Smith appealed once again and we now

consider the appeal on its merits.

                            II. Assignment of Error

      THE TRIAL COURT'S DECISION TO CHANGE THE SURNAME
      OF THE MINOR CHILD WAS BASED UPON INSUFFICIENT
      EVIDENCE AND IS CONTRARY TO LAW.

                           III. Standard of Review
      {¶5}     When reviewing a decision that a child's name should or

should not be changed, the reviewing court cannot simply substitute its

judgment for that of the trial court. Jarrells v. Epperson (1996), 115 Ohio

App.3d 69, 71, 684 N.E.2d 718. Such determination is within the sound

discretion of the trial court and should only be reversed when that discretion

is abused. Id. See, also, In re Change of Name of Simers, 4th Dist. No.

06CA30, 2007-Ohio-3232, at ¶8; In re Change of Name of Dotson, 4th Dist.

No. 04CA5, 2005-Ohio-367, at ¶6. An abuse of discretion is more than an

error of judgment; it is an attitude on the part of the court that is

unreasonable, unconscionable, or arbitrary. Id.
Lawrence App. No. 10CA4                                                             4


                                IV. Legal Analysis

      {¶6}        In her sole assignment of error, Smith argues the trial court's

decision to allow her child’s name change is contrary to law. The Supreme

Court of Ohio provided the framework for such decisions in Bobo v. Jewell

(1988), 38 Ohio St.3d 330, 528 N.E.2d 180, and in In re Willhite, 85 Ohio

St.3d 28, 1999-Ohio-201, 706 N.E.2d 778.

      {¶7}        “In Ohio, name changes for minors and adults are governed

by R.C. 2717.01(A). R.C. 2717.01(B), which governs name changes for

minors, provides that ‘[a]n application for change of name may be made on

behalf of a minor by either of the minor's parents * * *. [I]n addition to the

notice and proof required pursuant to division (A) of this section, the consent

of both living, legal parents of the minor shall be filed, or notice of the

hearing shall be given to the parent or parents not consenting * * *.’”

Willhite at 30.

      {¶8}        “Further, the standard for deciding whether to permit a name

change is ‘proof that * * * the facts set forth in the application show

reasonable and proper cause for changing the name of the applicant.’” Id.,

quoting R.C. 2717.01(A).
Lawrence App. No. 10CA4                                                         5


      {¶9}     Bobo and Willhite determined that a name change request

requires a best-interest-of-the-child analysis. Willhite lists the relevant

factors a trial court should consider:

      {¶10} “In determining whether a change of a minor's surname is in

the best interest of the child, 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.”

Whillhite, at paragraph two of the syllabus.

      {¶11} Further, the Court warned against giving undue weight to the

father’s interest because of custom or tradition. “We caution the courts,

however, 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. While it may be a custom to name a
Lawrence App. No. 10CA4                                                           6


child after the father, giving greater weight to the father's interest fails to

consider that, where the parents have never been married, the mother has at

least an equal interest in having the child bear the maternal surname. In

these times of parental equality, arguing that the child of unmarried parents

should bear the paternal surname based on custom is another way of arguing

that it is permissible to discriminate because the discrimination has endured

for many years.” Bobo at 334.

      {¶12} In the case sub judice, the trial court cited both Bobo and

Willhite and engaged in the required best-interest analysis. First, the court

stated that because of the very young age of the child (not yet two years old

at the time of the court's decision), the child's preference was not relevant.

Further, the court found that the length of time the child had had the surname

Smith did not weigh against a name change. The court reasoned that if his

surname was changed, because of the child's young age he would be less

likely to suffer from embarrassment or discomfort because he will have

grown up knowing only one last name. The court also stated that, because

many of his future classmates would likely have last names which are

different from their custodial parents, it is unlikely that the child would have

to suffer embarrassment on that score. Further, the court found that both

parents are bonding with the child and that they would continue to love and
Lawrence App. No. 10CA4                                                        7


bond with the child regardless of the child's legal name. The final factor the

trial court considered, and the one to which it gave the most weight, was the

surname in the context of identifying the child as part of a family unit.

      {¶13} During the hearing, Smith testified that the child's first and

middle names were family names derived from her lineage. Addressing this

point, the trial court stated the following:

      {¶14} “At this point and [sic] time, the child's name does not have

any connection to his father. The Court finds that even though the mother is

the residential parent, this child needs to also have a familial connection with

his father's family lineage. This factor is especially true given the strong

family connection of the first and middle names. This child will benefit

from having two identifiable family units to his name: one with his mother

and one with his father. The father can create a bond with this child, but will

lack the ‘family unit’ that could be established by the child having his

surname. This way the child will be able to reflect upon his first and middle

name as being derived from his mother's family and his last name derived

from his father's. This factor weighs heavily in the mind of the Court, is

persuasive and outweighs any negative impact raised by either party.”

      {¶15} Smith argues that the trial court gave greater weight to Jones’

wishes simply because he is the father, and otherwise ignored the guidelines
Lawrence App. No. 10CA4                                                            8


set forth in Bobo and Willhite. Instead, Smith contends that the trial court

adopted a new test. “According to the Trial Court the new test will be if the

child in question is an infant and the mother chose the child's first name then

the child shall bear the father's surname in order to identify with his ‘family

unit.’” We disagree with this characterization of the trial court's decision.

      {¶16} As previously stated, and contrary to Smith’s argument, the

trial court did explicitly consider the relevant factors cited in Bobo and

Willhite. Further, the court articulated a reasonable basis for its decision,

and that decision does not simply give greater weight to Smith due to custom

or tradition. The trial court's decision does not, as Smith contends, amount

to a new best-interest test, requiring that when the mother gives the child's

first and middle name, the father must be able to give the surname. Instead,

the decision simply states that, in the particular facts and circumstances of

this case, and after considering all the relevant best-interest factors, because

the name change will enable the child to better identify himself as part of a

family unit, it is in the child's best interest to change his surname to Jones.

      {¶17} It is not the role of this court to substitute its judgment for that

of the court below. Whether or not we would have arrived at a different

conclusion if we were undertaking a de novo review is not the issue. Here,

the trial court's decision was neither unreasonable, unconscionable, nor
Lawrence App. No. 10CA4                                                      9


arbitrary. As such, it was not an abuse of discretion and we must overrule

Smith’s sole assignment of error.


                                            JUDGMENT AFFIRMED.
Lawrence App. No. 10CA4                                                       10


                           JUDGMENT ENTRY

     It is ordered that the JUDGMENT BE AFFIRMED and that the
Appellee recover of Appellant costs herein taxed.

      The Court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this Court directing
the Lawrence County Court of Common Pleas, Probate-Juvenile Division, to
carry this judgment into execution.

       Any stay previously granted by this Court is hereby terminated as of
the date of this entry.

      A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Exceptions.

Kline, J. and Abele, J.: Concur in Judgment and Opinion.



                                       For the Court,


                                       BY: _________________________
                                           Matthew W. McFarland
                                           Presiding 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.
