In re Name Change of D.G.S. , 2017 Ohio 4110 ( 2017 )


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  • [Cite as In re Name Change of D.G.S., 
    2017-Ohio-4110
    .]
    STATE OF OHIO                   )                        IN THE COURT OF APPEALS
    )ss:                     NINTH JUDICIAL DISTRICT
    COUNTY OF MEDINA                )
    IN RE: NAME CHANGE OF D.G.S.                             C.A. No.   16CA0041-M
    APPEAL FROM JUDGMENT
    ENTERED IN THE
    COURT OF COMMON PLEAS
    COUNTY OF MEDINA, OHIO
    CASE No.   2015 12 NC 00087
    DECISION AND JOURNAL ENTRY
    Dated: June 5, 2017
    SCHAFER, Presiding Judge.
    {¶1}    Petitioner-Appellant, M.L. (“Mother”), appeals the judgment of the Medina
    County Court of Common Pleas, Probate Division, denying her application to change the name
    of her minor son. For the reasons that follow, we affirm.
    I.
    {¶2}    Mother and Respondent-Appellee, B.S. (“Father”), were divorced on December 4,
    2015. Mother used the surname L. early in the marriage, but ultimately used the surname S. She
    reverted to her maiden name following the divorce. While married, the parties adopted their
    minor child, D.G.S., through a domestic adoption. Mother is of Italian descent and Father is of
    German/Irish descent. D.G.S.’s biological mother is of Lebanese descent and his biological
    father’s descent is unknown.
    {¶3}    At the time of adoption, Mother and Father changed D.G.S.’s name from his birth
    name to D.L.S., the D. an Italian first name and the L. having been his first name given at birth.
    2
    Although D.G.S.’s middle name was to have remained L. in deference to his biological mother,
    Mother and Father had it legally changed during their marriage to the masculine form of
    Mother’s middle name. Accordingly, D.G.S.’s first and middle name are reflective of Mother’s
    Italian heritage and his surname reflective of Father’s heritage.
    {¶4}    While divorce proceedings were still pending, Mother was denied a prior
    application to change D.G.S.’s surname in August 2015. Nonetheless, Mother either encouraged
    or allowed D.G.S. to be identified by the surname L.-S. over Father’s objection. Later, when the
    divorce became final, Mother filed a subsequent application to change the surname of D.G.S. to
    L.-S. Father objected to the proposed name change and the probate court appointed a guardian
    ad litem (“GAL”). Following a hearing and an in camera interview with D.G.S., the probate
    court denied Mother’s application.
    {¶5}    Mother filed this timely appeal, raising two assignments of error for our review.
    As both assignments of error raise similar issues, we elect to consider them together.
    II.
    Assignment of Error I
    The trial court’s ruling is contrary to the weight of the evidence when
    applied to controlling legal [precedent].
    Assignment of Error II
    The trial court improperly applied a paternalistic standard in denying the
    surname change of minor child.
    {¶6}    In her first assignment of error, Mother contends that the probate court’s ruling is
    contrary to the weight of the evidence. In her second assignment of error, Mother argues that
    because the weight of the evidence weighs in favor of the name change, the trial court abused its
    3
    discretion by “supplanting [its] own preference for paternalistic standards in place of the law.”
    We disagree with both arguments.
    {¶7}    R.C. 2717.01 governs the proceedings for a change of name. R.C. 2717.01(A)(3)
    provides that, following a proper application, a probate court may order a name change for
    “reasonable and proper cause.” “[W]hen deciding whether to permit a name change for a minor
    child * * *, the trial court must consider the best interest of the child in determining whether
    reasonable and proper cause has been established.” In re Willhite, 
    85 Ohio St.3d 28
    , paragraph
    one of the syllabus. The Supreme Court of Ohio has stated that the trial court should consider
    the following factors when determining whether a change of a minor’s surname is in the best
    interest of the child:
    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.
    
    Id.
     at paragraph two of the syllabus, citing Bobo v. Jewell, 
    38 Ohio St.3d 330
     (1988), paragraph
    two of the syllabus, and In re Change of Name of Andrews, 
    235 Neb. 170
     (1990). “If the probate
    court has considered the appropriate factors, we will not substitute our judgment for its judgment
    absent an abuse of discretion.” In re A.C., 9th Dist. Summit No. 27646, 
    2015-Ohio-4351
    , ¶ 11.
    An abuse of discretion is more than an error of judgment; it means that the trial court was
    unreasonable, arbitrary, or unconscionable in its ruling. Blakemore v. Blakemore, 
    5 Ohio St.3d 217
    , 219 (1983).
    4
    {¶8}    In this case, the probate court determined that based upon the totality of the
    testimony and the evidence presented, that Mother had failed to establish that the name change
    was in D.G.S.’s best interests. In making this determination, the probate court considered the
    factors outlined by the Supreme Court of Ohio in Willhite. Specifically, the probate court found
    that a surname change would adversely affect the child’s development and maintenance of a
    relationship with his father, however, absent a name change, D.G.S. is and would continue to be
    “firmly identified” as a member of Mother’s family. In making this determination, the court
    gave significant weight to the fact that during its in camera interview, D.G.S. made the
    statement, “my dad lives in an apartment, not with me anymore, * * * he used to live with me but
    he left my mom and I” and that there was an “an obvious ‘us (mom and I) vs. him (dad)’
    negative undertow” occurring in the family. Additionally, Mother used the name L. or L.-S. for
    D.G.S. despite the denial of her previous application for name change and without the consent of
    Father. The record further indicates that D.G.S. does not identify with Father’s German/Irish
    ethnic heritage, but rather his mother’s Italian heritage and that D.G.S. has identified his surname
    as just L. to his teacher. Additionally, D.G.S. is being brought-up in his mother’s religion and
    Mother objects to Father taking D.G.S. to his church.
    {¶9}    The court also noted that “[t]he evidence demonstrates that [D.G.S.] is currently
    firmly identified as a member of the [L.] family.”         Specifically, the court noted that his
    relationship with his extended relatives would not be affected absent a name change. Indeed,
    Mother testified that D.G.S. interacts with her family on a regular basis, but that Father’s
    extended family is not in the area. The record also demonstrates that despite his biological
    Lebanese heritage, D.G.S. identifies as Italian, has an Italian first and middle name, and wears
    Italian clothes and shoes.
    5
    {¶10} D.G.S.’s surname has been the same since his adoption. Upon conducting an in
    camera interview, the probate court found that D.G.S. lacked sufficient maturity to express a
    meaningful preference in his surname. The probate court specifically noted that although D.G.S.
    is “very bright,” he could be easily influenced because of his age and lack of understanding of
    the adult world.    The court gave significant weight to the fact that during the in camera
    interview, D.G.S. “appeared somewhat prepped with an agenda and practiced answers in support
    of [Mother]’s position as demonstrated by his physical mannerisms and presentation.”
    Additionally, the court noted that D.G.S. “engaged in physical unease, avoidance and change the
    subject manifestation of actions” when the discussion occurred in a fashion other than “mom
    versus dad.”
    {¶11} The probate court also found that Mother had not established with clear and
    convincing evidence any demonstrable level of embarrassment, discomfort, or inconvenience in
    maintaining D.G.S.’s current surname. Although the trial court did not put emphasis on any
    particular evidence, the court recognized in its journal entry that Mother testified that absent the
    name change, in her professional opinion travelling with D.G.S. would be embarrassing and
    difficult because she will be required to travel with other documents and may be delayed in
    customs and immigration. Father, however, testified that based upon his professional experience
    that travel documents and identification would be harder if the name change were granted.
    Mother also testified that she felt embarrassed at a pre-kindergarten registration because “despite
    her school/church related involvement * * * a registration packet was not available in the name
    of [L.] but in the name of [S.].” The court noted, however, that “the lack of a packet did not
    adversely affect kindergarten registration, nor was there testimony that the child felt any
    embarrassment for the faux pas.” The court stated “[D.G.S. appears well adjusted at school and
    6
    that the school appears to readily comprehend that [D.G.S.]’s parents are divorced and includes
    both in communications, etc.”
    {¶12} The probate court stated that Mother had advised the court that Father maintained
    contact with D.G.S. and was current in his support. The court found that both parents are
    residential parents and legal custodians pursuant to their shared parenting plan under the divorce
    decree.     Additionally, the court found that “[t]he disparity in parenting time seems more
    traceable to the work related schedule of [Father] and the fact that [Mother] has greater time
    available to spend with D.G.S. given her work related disability.”
    {¶13} The probate court also considered the testimony of the GAL appointed in this
    case. The GAL opined that the name change should be denied because: (1) D.G.S.’s first and
    middle name were already Italian; (2) although D.G.S. identified with the name [L.], this may
    have been due to Mother using the surname for D.G.S. despite the denial of her prior application;
    (3) the name change could diminish D.G.S.’s identification with Father; and (4) no information
    was provided to the GAL with regard to embarrassment, discomfort, or inconvenience due to
    D.G.S. having a different surname from Mother and that any concerns of embarrassment are
    merely hypothetical.
    {¶14} Finally, we determine that Mother’s claim that the probate court used “an archaic
    paternalistic” standard is without merit. In Bobo and then again in Willhite, the Supreme Court
    of Ohio advised courts “‘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.’” Willhite, 85 Ohio St.3d at 32, quoting Bobo at 334. However, in support of her
    argument, Mother does not point to any findings of the probate court. Instead, Mother only
    points to Father’s testimony that he did not want D.G.S.’s surname changed and the testimony of
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    the GAL that Father believed a child should have his father’s surname and that Father carried
    anger from the divorce into the present matter. Indeed, the court only considered the best
    interests of the child and did not consider the interests of the either parent.
    {¶15} Accordingly, we conclude that the probate court considered the appropriate
    factors and, thus, did not abuse its discretion when it denied Mother’s application to change
    D.G.S.’s surname.
    {¶16} Therefore, Mother’s first and second assignments of error are overruled.
    III.
    {¶17} Mother’s assignments of error are overruled. Therefore, the judgment of the
    Medina County Court of Common Pleas, Probate Division, is affirmed.
    Judgment affirmed.
    There were reasonable grounds for this appeal.
    We order that a special mandate issue out of this Court, directing the Court of Common
    Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy
    of this journal entry shall constitute the mandate, pursuant to App.R. 27.
    Immediately upon the filing hereof, this document shall constitute the journal entry of
    judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
    period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
    instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
    mailing in the docket, pursuant to App.R. 30.
    8
    Costs taxed to Appellant.
    JULIE A. SCHAFER
    FOR THE COURT
    CARR, J.
    TEODOSIO, J.
    CONCUR.
    APPEARANCES:
    PAMELA J. MACADAMS, Attorney at Law, for Appellant.
    STEVE BAILEY, Attorney at Law, for Appellee.
    DEREK CEK, Guardian ad Litem.
    

Document Info

Docket Number: 16CA0041-M

Citation Numbers: 2017 Ohio 4110

Judges: Schafer

Filed Date: 6/5/2017

Precedential Status: Precedential

Modified Date: 4/17/2021