[Cite as In re J.A.M.V., 2013-Ohio-2502.]
STATE OF OHIO, HARRISON COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
IN THE MATTER OF: )
)
J.A.M.V. )
) CASE NO. 12 HA 3
)
) OPINION
)
)
CHARACTER OF PROCEEDINGS: Civil Appeal from Court of Common
Pleas, Probate Division of Harrison
County, Ohio
Case No. 20126005
JUDGMENT: Reversed and Remanded
APPEARANCES:
For Plaintiff-Appellee Ashley Roberts
38450 Allensworth, Apt. 9
Scio, Ohio 43988
For Defendant-Appellant Geoff Violet
64459 Sandhill Road
Bellaire, Ohio 43906
JUDGES:
Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Hon. Mary DeGenaro
Dated: June 14, 2013
[Cite as In re J.A.M.V., 2013-Ohio-2502.]
DONOFRIO, J.
{¶0} Appellant, Geoff Violet, appeals from a Harrison County Probate Court
judgment denying his application to change the name of his son.
{¶1} Appellant and appellee, Ashley Roberts, are the biological parents of
the child at issue. They were a couple for a while but were never married. At the
time of the child’s birth, the parties were together. On the child’s original birth
certificate, the child’s first name was “Gacek.” According to appellant, the “G” was in
honor of his first name “Geoff.” According to appellee, appellant pressured her to use
a “G” instead of a “J” in order for the name to be different. She stated that she
agreed to this spelling in order to keep peace in their household but always wanted
the name “Jacek” as spelled in a baby book that described “Jacek” as “healer.”
{¶2} A few months after the child’s birth, the parties broke up. Appellee then
contacted the Health Department and Bureau of Vital Statistics. She learned she
could have the birth certificate corrected for a misspelled name without filing a
change of name application with the probate court. Consequently, when the child
was approximately five months old, appellee “corrected” his birth certificate to
“Jacek.” She did this without informing appellant.
{¶3} On May 1, 2012, appellant filed an application for change of name of
minor. He requested that the probate court change his son’s name from “Jacek Allen
Matthew Violet” to “Gacek Allen Matthew Violet.” For cause, appellant alleged his
son’s birth name was Gacek but appellee changed it from Gacek to Jacek asserting
that it was a misspelling on the birth certificate. Appellant stated that to return to the
name Gacek was in his son’s best interest and promoted a better relationship
between parent and child by improving the identity with the father.
{¶4} The probate court held a hearing on appellant’s application where it
heard testimony from both parties. Appellant was represented by counsel. Appellee
appeared pro se. The court overruled the application for name change. It based its
decision on the best interest of the child and its finding that Ohio law grants an
unwed mother some prerogative over the naming of a child over the objection of an
unwed father.
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{¶5} Appellant filed a timely notice of appeal on July 19, 2012.
{¶6} Appellee has failed to file a brief in this matter. Therefore, we may
consider appellant's statement of the facts and issues as correct and reverse the
judgment if appellant's brief reasonably appears to sustain that action. App.R. 18(C).
{¶7} Appellant, now acting pro se, raises a single assignment of error that
states:
THE COURT ERRED IN FINDING THAT THE MOTHER
SOUGHT TO ONLY CHANGE THE SPELLING OF THE SAID CHILD’S
NAME FROM “GACEK ALLEN MATTHEW VIOLET” TO “JACEK
ALLEN MATTHEW VIOLET.”
{¶8} Appellant argues that appellee admitted she agreed to the name as
originally spelled on the birth certificate. He contends appellee intentionally misled
the Health Department and Bureau of Vital Statistics. Appellant also asserts appellee
did not give him notice that she was changing the name as stated on the birth
certificate.
{¶9} We review a trial court’s decision on whether to grant a name change
for abuse of discretion. Evangelista v. Horton, 7th Dist. No.08-MA-244, 2011-Ohio-
1472, ¶63. Abuse of discretion connotes more than an error of law or judgment; it
implies that the trial court’s judgment is arbitrary, unreasonable, or unconscionable.
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶10} Either of a minor child’s parents may make an application for change of
name on behalf of the minor. R.C. 2717.01(B). The court may order the name
change upon proof that proper notice was given and if the facts set forth in the
application show reasonable and proper cause for changing the name. R.C.
2717.01(A).
{¶11} In determining whether to permit a name change for a minor child the
court shall consider the best interest of the child in determining if reasonable and
proper cause has been established. In re Willhite, 85 Ohio St.3d 28, 706 N.E.2d 778
-3-
(1999), at paragraph one of the syllabus. In making the best interest determination,
the trial court should consider:
[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; the length of time that the child has used a
surname; [3] the preference of the child if the child is of sufficient
maturity to express a meaningful preference; [4] 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; [5]
parental failure to maintain contact with and support of the child; and [6]
any other factor relevant to the child's best interest.
Id. at paragraph two of the syllabus, following Bobo v. Jewell, 38 Ohio St.3d 330, 528
N.E.2d 180 (1988), paragraph two of the syllabus, and In re Change of Name of
Andrews, 235 Neb. 170, 454 N.W.2d 488 (1990).
{¶12} In this case, the probate court found the notice was proper and
appellant properly requested the name change. It then went on to examine the best
interest factors.
{¶13} First, the court found that the child used the name “Gacek” from birth
until he was approximately five months old. Therefore, it reasoned, the child had no
memory of that spelling. It found that he has used “Jacek” for the last three years
and appellee testified that the child recognizes the current spelling of his name.
Accordingly, the court found there may be some adjustment if his name was
changed.
{¶14} Second, it found that due to the child’s young age of three-and-a-half,
he could not express a meaningful preference.
{¶15} Third, the court found that both appellant and appellee love the child
and the spelling of his name would not affect their relationships with him.
-4-
{¶16} Fourth, the court noted that the factor having to do with surnames did
not apply here.
{¶17} Finally, the court found this was an issue between the parents. It noted
that appellant contends appellee changed the child’s name to spite him whereas
appellee contends she just wanted the proper spelling of the name and left the
middle name of “Allen” and the surname of “Violet” to honor appellant. The court
found that with the child sharing both the father’s middle name and surname, it could
not find that the father-son bond would be enhanced or hindered by the current
spelling of “Jacek” as the father unconditionally loves his son.
{¶18} The court concluded by noting that Ohio law grants an unwed mother
some prerogative of the naming of a child over the objection of an unwed father.
{¶19} The parties testified at the hearing as follows.
{¶20} Appellee stated that she chose the name “Jacek Allen Matthew” for the
child. (Tr. 7). And she stated there was no question his last name would be “Violet.”
(Tr. 7-8). She testified that she and appellant argued over the spelling while in the
hospital because appellant wanted the name to start with a “G” like his name and she
wanted it spelled the proper way with a “J.” (Tr. 7-8). She stated that she found the
name in a book and it meant “healer.” (Tr. 8).
{¶21} Appellee testified that at some point she sought to change the child’s
name so that it would be spelled correctly. (Tr. 9). She stated that she contacted the
“Columbus office” and was told to file an affidavit of correction of the birth record. (Tr.
9-10). Appellee clarified by stating that the Health Department told her that because
appellant never signed the birth certificate, she could unilaterally make changes to it.
(Tr. 16).
{¶22} Appellee acknowledged that she changed the spelling of the child’s
name without notifying appellant. (Tr. 13). She stated that “Jacek” is the child’s
name. (Tr. 14). As to “Gacek,” appellant stated: “That’s not what I named him.
That’s not what I wanted it to be. I saved an argument, did it and then changed it
when I was told that I could do so.” (Tr. 14). Appellee also testified that the child
-5-
recognizes his name as “Jacek.” (Tr. 13).
{¶23} Appellant testified that he and appellee selected the child’s name
together from name books. (Tr. 19). He stated that they liked the name “Jacek” but
they changed it to start with a “G” so it would be like his name “Geoff.” (Tr. 19).
According to appellant, appellee agreed to this spelling. (Tr. 19). He stated that the
spelling “Gacek” was intentional and was not a mistake or error on the birth
certificate. (Tr. 20). And he testified that appellant changed the name to “Jacek”
without his consent. (Tr. 20).
{¶24} As to his relationship with the child, appellant testified that he spends
every other weekend, every Wednesday, and four weeks in the summer with him.
(Tr. 21). And he stated he is current in his child support. (Tr. 21). He testified that it
was important to him that the child’s name begins with a “G” because appellant
changed it out of spite. (Tr. 21). He believed that it was important to the child that
his name started with the same letter as his father’s name so that the child would
know that the “G” came from him. (Tr. 22). Appellant stated that selecting “G” for his
child’s first name was a way of honoring him. (Tr. 23).
{¶25} On cross examination, appellant admitted that the child received his
middle name “Allen” and his last name “Violet.” (Tr. 24).
{¶26} The statutory best interest factors do not weigh heavily in toward either
side. As to the first best interest factor, both parents enjoy a strong relationship with
the child. This will not be affected in any way whether the child’s name begins with a
“J” or a “G.” As to the second factor, the child has used the name “Jacek” for
approximately the last three of his three-and-a-half years. And because this case
deals with the child’s first name, as opposed to his surname, either spelling of his first
name will not affect the identification of the child as a part of a family unit. As to the
third factor, as the trial court found, because of the child’s young age, he cannot
express a meaningful preference as to whether his name starts with a “J” or a “G.”
The fourth factor does not apply because it deals with surnames. As to the fifth
factor, appellant has maintained contact and support of the child.
-6-
{¶27} But because appellee lied to the Health Department in order to change
the child’s name, we must conclude that the trial court abused its discretion in
denying appellant’s motion for a name change. Appellee admitted that she agreed
with appellant to spell their child’s name with a “G” in order to “save an argument.”
She stated that she filed an affidavit of correction of the birth record, in order to
correct an error. But because appellee agreed to the spelling “Gacek” when the child
was born, there was no spelling or clerical error to correct on the birth certificate.
Thus, appellee intentionally misled the Health Department so that she could
unilaterally change the spelling of her son’s name.
{¶28} Therefore, trial court abused its discretion in denying appellant’s
application to change the spelling of his son’s name. Accordingly, appellant’s sole
assignment of error has merit.
{¶29} For the reasons stated above, the trial court’s judgment is hereby
reversed. The matter is remanded to the trial court to change the spelling of the
child’s name from “Jacek” to “Gacek.”
Vukovich, J., concurs.
DeGenaro, P.J., concurs.