[Cite as Guzzo v. Kercher, 2013-Ohio-2825.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                        LAKE COUNTY, OHIO


MICHAEL GUZZO,                                   :      OPINION

                 Plaintiff-Appellant,            :
                                                        CASE NO. 2012-L-117
        - vs -                                   :

JENNIFER KERCHER,                                :

                 Defendant-Appellee.             :


Appeal from the Lake County Court of Common Pleas, Juvenile Division, Case No.
2011CV00652.

Judgment: Affirmed.


 William R. Joherl, and Mitchell D. D’Amico, 7333 Center Street, Mentor, OH 44060
(For Plaintiff-Appellant).

Randy A. Vermilya, 30432 Euclid Avenue, Suite 101, Wickliffe, OH          44092 (For
Defendant-Appellee).

John W. Shryock, John Shryock Co., L.P.A., 30601 Euclid Avenue, Wickliffe, OH
44092 (Guardian ad litem).



CYNTHIA WESTCOTT RICE, J.

        {¶1}     Appellant, Michael Guzzo, appeals from the judgment of the Lake County

Court of Common Pleas, Juvenile Division, adopting the magistrate’s decision denying

his motion to change the surname of the parties’ minor daughter. For the reasons

discussed below, we affirm.
      {¶2}   The parties’ minor daughter was born on November 30, 2010. The parties

were never married. Once paternity was established, appellant filed a complaint to

establish parental rights and responsibilities and appellant was granted limited

temporary visitation.   Appellant filed a motion to change the child’s surname from

Kercher to Guzzo. The parties subsequently entered into a shared parenting plan,

resolving all matters except for the name change.

      {¶3}   On February 28, 2012, a hearing on the issue of the child’s name change

was held. The evidence at the hearing established that upon learning appellee was

pregnant, appellant sent appellee a text stating he wanted nothing to do with “it” and he

never wanted to “see that thing.” After the child’s birth and parentage was established,

however, appellant took active steps to involve himself in the child’s upbringing.

Appellant and appellee live in different communities.     And, pursuant to the parties’

agreement, appellee will be the residential parent for purposes of school when the child

reaches the appropriate age.

      {¶4}   Appellant testified that the court should order name change because it

would be less evident she was born out of wedlock if the child had his last name,

thereby ameliorating potential embarrassment later in life. Appellant further testified

that it would be less confusing to the child because his last name will never change; if,

however, appellee marries another man, her name would likely change and the child

would be left with a surname different than both parents. Appellant also claimed giving

the child his last name would create a stronger bond between him and his daughter.

And, finally, appellant testified he wanted the child to have his last name based on his

“personal selfishness,” i.e., he asserted he was proud of her and wanted everyone to

know she is his daughter.


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       {¶5}   Appellee testified that, even if she were to marry in the future, she

intended on keeping her maiden name and therefore the child would not suffer any

confusion in that regard. And, in any event, appellee noted that appellant had a criminal

record and she did not wish to have their daughter’s name overtly connected with

appellant’s surname.      Appellee further testified she has arranged several college

savings plans in the child’s name. Appellee also testified that the baby had received

certain gifts from appellee’s family as well as a baptismal certificate with her full name

either printed or embroidered on the items. In appellee’s view, these items are not

readily replaceable and, even if they could be replaced, the replacements would not

hold the same sentimental value.

       {¶6}   After considering the evidence, the magistrate issued his decision denying

appellant’s motion. Appellant filed objections to the magistrate’s decision, which were

later overruled by the trial court. The trial court adopted the magistrate’s decision in full.

This appeal follows.

       {¶7}   Appellant assigns the following error for this court’s review:

       {¶8}   “The trial court committed prejudicial error in denying the Plaintiff-

Appellant’s motion for a name change.”

       {¶9}   An appellate court reviews a trial court’s adoption of a magistrate’s

decision for an abuse of discretion. See e.g. Fortney v. Willhoite, 11th Dist. No. 2011-L-

120, 2012-Ohio-3024, ¶33. An abuse of discretion is a term of art, connoting a judgment

that fails to comport with reason or the record. See e.g. Janecek v. Marshall, 11th Dist.

No. 2010-L-059, 2011-Ohio-2994, ¶7. Under such a standard, a reviewing court may

not substitute its own judgment for that of the trial court. See e.g. D.W. v. T.L., 134

Ohio St.3d 515, 2012-Ohio-5743, ¶10.


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       {¶10} “Pursuant to R.C. 3111.13(C), a court of common pleas may determine

the surname by which the child shall be known after establishment of the existence of

the parent and child relationship, and a showing that the name determination is in the

best interest of the child.” Bobo v. Jewell, 38 Ohio St.3d 330 (1988), paragraph one of

the syllabus. The Court in Bobo set forth the following factors a trial court should

consider in assessing the child’s best interest in a name-change case involving

unmarried parents:

       {¶11} the length of time that the child has used a surname, the effect of a

              name change on the father-child relationship and on the mother-

              child relationship, the identification of the child as part of a family

              unit, the embarrassment, discomfort or inconvenience that may

              result when a child bears a surname different from the custodial

              parent’s, the preference of the child if the child is of an age and

              maturity to express a meaningful preference and any other factor

              relevant to the child’s best interest. Id. at paragraph two of the

              syllabus.

       {¶12} Further, in In re Willhite, 85 Ohio St.3d 28, 1999-Ohio-201, the Court

added two other specific factors for a trial court to consider; to wit: “whether the child’s

surname is different from the surname of the child’s residential parent” and “parental

failure to maintain contact with and support the child.” Id. at paragraph two of the

syllabus. The Supreme Court has emphasized, however, that the foregoing factors are

merely guidelines and courts should consider only those that are present in the

circumstances of the case before them. Bobo, supra; see also D.W., supra, at ¶13,

¶17. The moving party must present sufficient evidence to affirmatively demonstrate


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that altering the status quo via a name change is in the child’s best interest. Id., citing In

re Change of Name of Halliday, 11th Dist. No. 2005-G-2629, 2006-Ohio-2646, ¶18.

       {¶13} Given the evidence, we conclude the magistrate did not err in ruling

appellant failed to produce sufficient evidence that a name change is in the child’s best

interest. Appellant’s argument that the child may suffer embarrassment and confusion if

she does not have his name is speculative. First of all, if the child retains appellee’s

maiden name, it is far from obvious that she will experience shame in the future.

Moreover, the possible confusion the child might have if she did not possess appellant’s

last name is premised upon assumptions that were unsubstantiated; namely, that

appellee will get married and such a marriage would eventuate in appellee changing her

surname to that of her would-be husband’s, something appellee specifically testified

would not occur. Accordingly, the hypothetical arguments advanced by appellant were

essentially negated by appellee’s testimony.

       {¶14} Further, while a name change could, at least metaphysically, enhance

appellant’s bond with the child, altering the status quo could also concomitantly disturb

the same bond appellee has with the child. Such a result, without more, does not

militate in favor of the child’s best interests.

       {¶15} Appellant did not testify that changing the name would somehow

strengthen the child’s identity with a family unit or indicate how he or the child would

reap some specific ultimate benefit from the name change. And courts have held that

the mere desire for a child to possess a surname is insufficient to establish a name

change is in the child’s best interests. In re C.L.T., 12th Dist. No. CA2011-04-073,

2012-Ohio-427, ¶32 (father’s interest that son carry on family name was insufficient to

meet burden in name-change case); Erin C. v. Christopher R., 129 Ohio App.3d 290,


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293 (6th Dist.1998) (finding an abuse of discretion for the trial court to order name

change where the only evidence was father wanted his son to have his surname); In re

Wolfe, 2d Dist. No. 19136, 2002-Ohio-3277 (finding an abuse of discretion where the

trial court ordered a name change when the only relevant evidence was his desire to

have the name changed).

       {¶16} In this case, even though appellant asserted reasons other than his

“selfishness” for requesting the name change, none of the arguments were particularly

compelling. The magistrate echoed this point when he observed “though neither [party]

has convincing arguments for his or her position, the burden of proof is on [appellant]

that the name change is in the child’s best interest.” In denying the motion, therefore,

magistrate concluded that the evidence appellant produced was insufficient to

affirmatively show the change of name was in the child’s best interests. We conclude

this decision comports with the record. We accordingly hold the trial court did not abuse

its discretion in adopting the magistrate’s decision.

       {¶17} Appellant’s assignment of error is without merit.

       {¶18} For the reasons discussed in this opinion, the judgment of the Lake

County Court of Common Pleas, Juvenile Division, is affirmed.



TIMOTHY P. CANNON, P.J.,

DIANE V. GRENDELL, J.,

concur.




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