[Cite as In re Change of Name of J.W.B. , 2011-Ohio-1640.]


                                      COURT OF APPEALS
                                  MUSKINGUM COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT

IN RE:                                                       JUDGES:
                                                             Hon. William B. Hoffman, P.J.
CHANGE OF NAME OF:                                           Hon. Sheila G. Farmer, J.
                                                             Hon. Patricia A. Delaney, J.
J.W.B.
                                                             Case No. CT10-0038


                                                             OPINION




CHARACTER OF PROCEEDING:                              Appeal from the Muskingum County Court
                                                      of Common Pleas, Probate Division, Case
                                                      No. 20097038


JUDGMENT:                                             Affirmed


DATE OF JUDGMENT ENTRY:                               March 30, 2011


APPEARANCES:


For Appellant                                         For Appellee


ERIC ALLEN                                            COLE GERSTNER
The Law Office of Eric J. Allen, LTD                  Gottlieb, Johnston Beam & Dal Ponte, PLL
713 South Front                                       320 Main Street
Columbus, Ohio 43206                                  P.O. Box 190
                                                      Zanesville, Ohio 43702-0190
Muskingum County, Case No. CT10-0038                                                     2

Hoffman, P.J.


       {¶1}   Appellant Sean Beck appeals the July 1, 2010 Judgment Entry entered by

the Muskingum County Court of Common Pleas, Probate Division, which granted a

change of name of the minor child J.W.B. to J.L.M., upon application of Appellee Britton

Moore, the child’s Mother.

                             STATEMENT OF THE FACTS AND CASE

       {¶2}   Appellant and Appellee were married on June 14, 2002. One child was

born as issue of said union, to wit J.W.B. (DOB 6/27/05). The parties were divorced via

Decree filed on May 12, 2009.         Pursuant thereto, Appellee was designated the

residential parent and legal custodian of the minor child. The trial court found Appellant

had committed grievous misconduct and engaged in criminal conduct. The trial court

did not award any parenting time to Appellant.        The issue of parenting time was

revisited in 2010, and the trial court again denied Appellant’s request for parenting time,

finding such was not in the best interest of the child. At the time of the filing of the

divorce and throughout the proceedings, Appellant was incarcerated as a result of a

series of police corruption and drug charges. Appellant ultimately received a twenty

year sentence, and is currently incarcerated in California. He is not scheduled to be

released until 2025.

       {¶3}   On September 23, 2009, Appellee filed an Application for Change of

Name of Minor pursuant to R.C. 2717.01. Appellant filed an objection to the application.

The trial court conducted a hearing on May 24, 2010.

       {¶4}   At the hearing, Appellee testified Appellant’s last physical contact with

their child was on October 1, 2007. Appellant was arrested later that same day on
Muskingum County, Case No. CT10-0038                                                    3


federal drug charges, and has been continuously incarcerated since that day.

Appellant’s last contact with J.W.B. was a phone conversation on August 20, 2008.

Appellee stated she filed for divorce on October 16, 2007, after learning what Appellant

had done.    Appellee indicated Appellant was in federal prison, and not due to be

released until March, 2025. When asked to describe what Appellant had done to her

and J.W.B., Appellee stated she and her son had lost their home and a vehicle.

Appellee added she was unable to begin to explain the financial aspect of what had

been lost by Appellant’s actions. Appellee learned from the FBI Appellant had taken

J.W.B. with him during the commission of a drug deal. Appellant has not paid any child

support except for $800.00 he had on his person on the day of his arrest. Although

Appellant has over $18,000.00, in his Ohio Police and Fire Pension, she has not

received any of those monies.

      {¶5}   When asked why she petitioned to have J.W.B.’s name changed, Appellee

explained her name was restored to her maiden name pursuant to the divorce decree

and she wanted J.W.B. and herself to have the same last name. Further, the name

change would be the same last name as his maternal grandparents with whom Appellee

and J.W.B. were residing.

      {¶6}   Appellee indicated prior to Appellant’s arrest she did not believe J.W.B.

had any contact with his paternal grandparents. However, she later learned Appellant

would take the child to paternal grandparents’ home during the mornings when Appellee

was at work. Appellee explained J.W.B. had little contact with his paternal grandparents

because Appellant did not like his upbringing and did not want to put his own child in the
Muskingum County, Case No. CT10-0038                                                 4


same situation. Appellant had told Appellee his parents were mentally and verbally

abusive as well as manipulative.

      {¶7}   Appellee stated she did not believe the name change would have any

effect on the relationship between J.W.B. and Appellant as Appellant had not been part

of the child’s life for the past two and one-half years. J.W.B. has always identified

himself as being part of Appellee’s family. Appellant had chosen this as well as he was

very close with Appellee’s parents prior to his arrest. Appellee was aware of at least

fifty articles printed in various newspapers regarding Appellant’s criminal activities.

Appellee recalled an incident between J.W.B. and one of his preschool classmates who

told J.W.B. he was not allowed to play with him because his father was in jail. The

comment greatly upset J.W.B. Appellee feared these types of incidents will continue as

J.W.B. got older.

      {¶8}   Appellee described J.W.B. as “doing wonderfully”, growing, learning and

playing sports.     When Appellant was first arrested, he would call J.W.B. from the

Franklin County Jail. Appellee would force J.W.B. to talk with Appellant. As time went

on, J.W.B. reacted more and more to the phone calls, and the conversation between

father and son became shorter and shorter.       J.W.B. would not want to speak with

Appellant, running into another room whenever the phone rang.           Appellee also

explained she wished to change the child’s middle name from “William”, which is

Appellant’s middle name, to “Lee”, which is her father’s name. Appellee stated her

father has been more of a father to J.W.B. than Appellant.

      {¶9}   Paternal grandfather, William Beck, stated he had not had any meaningful

contact with J.W.B. since the child was about one and one-half years old. Paternal
Muskingum County, Case No. CT10-0038                                                   5


grandmother, Mala Beck, testified she had limited contact with J.W.B. prior to October,

2007.    Mrs. Beck stated she and her husband were not always included in all the

holiday functions, but tried to include Appellant, Appellee and J.W.B.       She noted

Appellant, Appellee and J.W.B. sometimes accepted their invitations, and other times

they would attend only for a portion of the time. Mrs. Beck explained they had tried to

send gifts and cards to J.W.B., but such had been returned. On cross-examination, she

stated she and her husband had not filed anything to seek grandparent visitation.

        {¶10} Appellant testified via telephone conference call. Appellant indicated he

took J.W.B. to see paternal grandparents on holidays and family birthdays. Appellant

indicated, at one point, he was taking the child to see his grandparents at least once a

week. Appellant explained, after he was incarcerated in October, 2007, his only contact

with J.W.B. was by telephone. He added he sent his son cards and letters as often as

he could. Appellant stated the last time he talked with J.W.B. was in August, 2008.

Appellant noted the letters and gifts he had sent since being housed in federal prison in

California have all been returned or refused. Appellant testified he was unaware, until

the day of the hearing, monies in his Ohio Police and Fire Pension had not been

transferred as child support.   As a federal prisoner, Appellant is permitted to have

telephone and written communications including email with his son.

        {¶11} When asked why he wanted J.W.B. to keep his last name, Appellant

explained J.W.B. was his only son and he wished his surname and family history to

continue. Appellant stated Appellee has been “threatening” to change J.W.B.’s name

since shortly after his arrest. Appellant was unaware Appellee also intended to have

J.W.B.’s middle name changed until the day of the hearing. Appellant indicated he
Muskingum County, Case No. CT10-0038                                                    6


wants to maintain a relationship with his son despite his incarceration.        Appellant

believes he can foster the relationship given the opportunity to have contact with J.W.B.

On cross-examination, when asked whether he himself had tarnished the Beck legacy,

Appellant answered he did not believe he tarnished the last name, but made a mistake

and was paying for it.

         {¶12} After hearing all the evidence and taking the matter under advisement, the

trial court granted Appellee’s application for name change via Judgment Entry filed July

1, 2010.

         {¶13} It is from this judgment entry Appellant appeals, raising as his sole

assignment of error:

         {¶14} “I. THE TRIAL COURT ABUSED ITS DISCRETION IN GRANTING THE

PETITION TO CHANGE THE CHILD’S NAME FROM [J.W.B.] TO [J.L.M].”

                                                 I

         {¶15} In his sole assignment of error, Appellant maintains the trial court abused

its discretion in granting Appellee’s petition to change the child’s name from J.W.B. to

J.L.M.

         {¶16} Name changes for minors are governed by R.C. 2717.01. 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.”

R.C. 2717.01(A); In re Willhite, 85 Ohio St.3d 28, 30, 1999-Ohio-201. In determining

whether a reasonable and proper cause for a name change has been established, a

court must consider the best interest of the child. Id. at 32. A probate court's

determination of whether a proposed name change should be granted will only be
Muskingum County, Case No. CT10-0038                                                      7

reversed if it constitutes an abuse of discretion. In re Change of Name of Barker, 155

Ohio App.3d 673, 2003-Ohio-7015, ¶ 8, citing In re Crisafi (1995), 104 Ohio App.3d 577,

581. An abuse of discretion “connotes more than an error of law or judgment; it implies

that the court's attitude is unreasonable, arbitrary, or unconscionable.” Blakemore v.

Blakemore (1983), 5 Ohio St.3d 217, 219.

        {¶17} In determining the best interest of the child, the trial court should consider

the following factors: 1) the effect of the change on the preservation and development of

the child's relationship with each parent; 2) the identification of the child as part of a

family unit; 3) the length of time that the child has been using a surname; 4) the

preference of the child if the child is of sufficient maturity to express a meaningful

preference; 5) whether the child's surname is different from the surname of the child's

residential parent; 6) the embarrassment, discomfort, or inconvenience that may result

when a child bears a surname different from the residential parent's; 7) parental failure

to maintain contact with and support of the child; and 8) any other factor relevant to the

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

syllabus.

        {¶18} A probate court's determination of whether a proposed name change

should be granted will only be reversed if it constitutes an abuse of discretion. In re

Change of Name of Malott, Brown App.No. CA2006-02-005, 2006-Ohio-7024, ¶ 6,

citations omitted. An abuse of discretion connotes more than an error of law or

judgment; it implies that the court's attitude is unreasonable, arbitrary, or

unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d

1140.
Muskingum County, Case No. CT10-0038                                                    8


      {¶19} In the case sub judice, the trial court held an evidentiary hearing and

conducted a de novo review of Appellee's application. The testimony reveals J.W.B. has

had no recent contact with Appellant or his paternal grandparents.               Paternal

grandparents did not have a strong relationship with J.W.B. before Appellant’s arrest.

The matter has only disintegrated. Although Appellant maintains he can foster a

relationship with J.W.B. through telephone contact, the record reveals J.W.B. reacts

negatively whenever the telephone rings and hides to avoid speaking with Appellant.

Appellant is not scheduled to be released from prison until March, 2025. For his entire

childhood, J.W.B. will be forced to explain why he and Appellee have different last

names.

      {¶20} Upon review of the record, we find the trial court duly considered the

relevant factors, and we conclude the court did not abuse its discretion in permitting the

name change.

      {¶21} Appellant’s sole assignment of error is overruled.
Muskingum County, Case No. CT10-0038                                           9


       {¶22} The judgment of the Muskingum County Court of Common Pleas, Probate

Division, is affirmed.

By: Hoffman, P.J.

Farmer, J. and

Delaney, J. concur

                                        s/ William B. Hoffman _________________
                                        HON. WILLIAM B. HOFFMAN


                                        s/ Sheila G. Farmer___________________
                                        HON. SHEILA G. FARMER


                                        s/ Patricia A. Delaney _________________
                                        HON. PATRICIA A. DELANEY
Muskingum County, Case No. CT10-0038                                               10


            IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO
                          FIFTH APPELLATE DISTRICT


IN RE:

CHANGE OF NAME OF:

J.W.B.                                       :
                                             :
                                             :
                                             :
                                             :         JUDGMENT ENTRY
                                             :
                                             :
                                             :         Case No. CT10-0038


         For the reasons stated in our accompanying Opinion, the judgment of the

Muskingum County Court of Common Pleas, Probate Division, is affirmed. Costs

assessed to Appellant.




                                             s/ William B. Hoffman _________________
                                             HON. WILLIAM B. HOFFMAN


                                             s/ Sheila G. Farmer __________________
                                             HON. SHEILA G. FARMER


                                             s/ Patricia A. Delaney _________________
                                             HON. PATRICIA A. DELANEY
