In re Change of Name of J.W.B. , 2011 Ohio 1640 ( 2011 )


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  • [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
    

Document Info

Docket Number: CT10-0038

Citation Numbers: 2011 Ohio 1640

Judges: Hoffman

Filed Date: 3/30/2011

Precedential Status: Precedential

Modified Date: 4/17/2021