[Cite as In re Change of Name of E.C.G., 194 Ohio App.3d 385, 2011-Ohio-1749.]




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

In re Change of Name           : Case No. 10CA40
of E.C.G.                      : Released: March 31, 2011
                               :
                               : DECISION AND JUDGMENT
                               : ENTRY
_____________________________________________________________
                          APPEARANCES:

Mollica, Gall, Sloan & Sillery Co., L.P.A., and Gerald A. Mollica, for appellant.

Eslocker & Oremus Co., L.P.A., and T.E. Eslocker, for appellee.
_____________________________________________________________

        MCFARLAND, Judge.

        {¶ 1} This is an appeal from an Athens County Court of Common Pleas,

Probate Division, decision and judgment entry denying appellant-mother, C. C.’s,

application to have the parties’ five-year-old son’s name changed to include the

addition of her maiden name. On appeal, appellant contends that the trial court (1)

abused its discretion in considering matters not pertinent to the petition and (2)

committed prejudicial error as a matter of law by not following the decision of the

Supreme Court of Ohio in In re Willhite (1999), 85 Ohio St.3d 28, 706 N.E.2d 778.

In light of our conclusion that the trial court properly considered and applied

controlling statutory and case law and did not abuse its discretion in reaching its
Athens App. No. 10CA40                                                                                       2


decision, both of appellant’s assignments of error are overruled. Accordingly, the

decision and judgment of the trial court are affirmed.

                                                     FACTS

        {¶ 2} Appellant-mother, C. C., and appellee-father, S. G., were married on

June 24, 1994. Appellant took appellee’s last name upon marriage. One child,

E.C.G.1 was born of the marriage, on March 15, 2005, and was given appellee’s

last name. The parties were divorced on August 8, 2008, at which point appellant

chose to have her maiden name restored. On May 3, 2010, appellant filed an

application in the Athens County Court of Common Pleas, Probate Division,

seeking to change the child’s last name to include the addition of her maiden name

in a hyphenated fashion.

        {¶ 3} Appellee opposed the application, and the trial court held a hearing on

the matter in July 2010. On the day of the hearing, the evidence revealed that the

child was approximately five years and four months old, had been attending

preschool, where he identified himself by and had already learned to spell his

existing name, and was registered to begin kindergarten in less than one month.

The evidence also indicated that the parties had a shared-parenting arrangement

and that both equally supported the child. The trial court considered testimony by

both appellant and appellee at the hearing and rendered a decision and judgment

1
  The middle initial “C.” in the child’s name did not represent appellant-mother’s maiden name, but rather
represented another family name.
Athens App. No. 10CA40                                                              3


entry denying appellant’s application. It is from this decision and judgment entry

that appellant now brings her timely appeal, assigning the following errors for our

review.

                           ASSIGNMENTS OF ERROR

I.    The trial court abused its discretion in considering matters not pertinent to
      the petition.

II.   The trial court committed prejudicial error as a matter of law by not
      following the decision of the [the Supreme Court of Ohio] [I]n re Willhite
      (1999), 85 Ohio St.3d 28.

                      ASSIGNMENTS OF ERROR I AND II

      {¶ 4} In her brief, appellant argues and addresses her assignments of error

together. In light of this fact and as both assignments of error must be analyzed

under the same standard of review, we will address them in conjunction as well.

Appellant essentially contends that the trial court erred and abused its discretion in

denying her application seeking to have her five-year-old son’s name changed to

include her maiden name. Specifically, appellant contends that the trial court erred

in considering matters that she claims were not pertinent to the issue, namely (1)

appellant’s failure to seek the name change while the marriage was intact and (2)

appellant’s failure to make the request as part of the divorce proceedings.

Appellant also contends that trial court did not properly apply the best-interest-of-

the-child standard in accordance with Willhite, 85 Ohio St.3d 28.
Athens App. No. 10CA40                                                              4


      {¶ 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.

That determination is within the sound discretion of the trial court and should be

reversed only when that discretion is abused. Id. See also In re Change of Name of

Simers, Washington App. No. 06CA30, 2007-Ohio-3232, at ¶ 8; In re Change of

Name of Dotson, Athens App. 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.

      {¶ 6} 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. As set forth in Willhite:

             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.

      {¶ 7} “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).
Athens App. No. 10CA40                                                                  5


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:

             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.

Willhite, 85 Ohio St.3d 28, at paragraph two of the syllabus.

      {¶ 8} In the case sub judice, we conclude that the trial court properly

engaged in the required best-interest analysis. Although the trial court did not

specifically cite all of the individual best-interest factors in issuing its decision, it

stated as follows on the record at the conclusion of the hearing on the matter:

      Court:* * * I will take what I have learned here today and make sure I
      rereview Willhite and Bobo-Jewell and I don’t believe there is [sic]
      any meaningful updates by our Supreme Court on those cases and will
      apply those standards to this fact pattern to render a decision in this
      case.

      {¶ 9} Further, in its decision and judgment entry, the trial court stated as

follows:

            The controlling case law interpreting chapter 2717 of the
      Revised Code is found in Willhite and Bobo-Jewell, as cited by
      counsel. The standard, simply stated, is proof that the facts set forth
Athens App. No. 10CA40                                                                6


      in the application show reasonable and proper cause for changing the
      name. The case law enumerates factors to be taken into account in
      making such a determination. These have all been considered in
      reaching the decision in this case.

Thus, it is clear from the record before us that the trial court was well aware of the

standard to be employed in reaching its decision on appellant’s application for a

change of name of her minor child. It is also clear that after conducting a hearing

on the matter and considering testimony by both parties, the trial court applied that

standard when rendering its decision. Therefore, we cannot conclude that the trial

court erred or abused its discretion in denying appellant’s application.

Accordingly, the arguments set forth in appellant’s second assignment of error are

overruled.

      {¶ 10} Our inquiry, however, does not end here.            As set forth above,

appellant also argues in her first assignment of error that the trial court abused its

discretion in considering matters not pertinent to the petition, namely (1)

appellant’s failure to seek the name change while the marriage was intact and (2)

appellant’s failure to make the request as part of the divorce proceedings. We

conclude, contrary to appellant’s assertions otherwise, that these particular issues

were pertinent to the petition to the extent that they relate to the age of the child at

the time of the requested name change.

      {¶ 11} The record reflects that during the hearing on the matter, appellee

testified that the child was, and had for years, been enrolled in preschool, where he
Athens App. No. 10CA40                                                                7


had learned to spell his name and was known by his existing name. He testified

that the child was scheduled to start kindergarten the coming fall. Further, appellee

testified as follows with regard to the child’s age as it related to the application for

a name change:

      Q:   Do you think at this time it would be in Emmett’s best interests to
      change his name as the school year commences on August 20th?

      A.     I do not. I think it would have been acceptable when the marriage
      ended. When he didn’t know how to spell his name, or I think it would be
      open for discussion when he’s older. Like he’s 12 years old and he can
      make the decision for himself. When it’s a decision that Emmett wants if
      that’s something that he wants I’ll completely support that[.]

      {¶ 12} In its decision and judgment entry, the trial court stated as follows:

             Some undisputed facts revealed at hearing are particularly helpful in
      framing this decision. These parties were married in June of 1994. At that
      time, [Ms. C.] replaced her last name with the name [G.]. They lived
      together in this marriage through the time of [E.’s] birth on March 15, 2005.
      At the time of his birth the parties agreed to his complete name [E. C. G.].
      Then, two years ago, the parties divorced and [Ms. C.] choose [sic] to have
      her maiden name restored in place of [G.]. At no time during these three
      significant life events was there any discussion suggesting that the child’s
      name should include mother’s maiden name. Until [Ms. C.] restored her
      maiden name, this was the [G.] family.

The eighth factor to be considered under Willhite’s best-interest-of-the-child

analysis is “any other factor relevant to the child’s best interest.” We conclude that

the trial court’s consideration of these facts was properly part of the best-interest

analysis that the trial court expressly stated it performed in reaching its decision.

This is true especially in light of appellee’s testimony regarding the child’s age at
Athens App. No. 10CA40                                                                8


the time of the application, as opposed to what his age would have been had

appellant sought the change at the time of the divorce.

      {¶ 13} 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 not unreasonable, unconscionable, nor arbitrary. Therefore, it was not an

abuse of discretion, and we must overrule appellant’s first assignment of error.

      {¶ 14} Having overruled both of appellant’s assignments of error, we affirm

the decision and judgment of the trial court.

                                                                   Judgment affirmed.

      HARSHA, P.J., and KLINE, J., concur.
