In re Name Change of O.B.A.

[Cite as In re Name Change of O.B.A., 2021-Ohio-2212.]

IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
SCIOTO COUNTY

IN THE MATTER OF: : Case No. 20CA3920
THE CHANGE OF NAME OF O.B.A. :
:
: DECISION AND JUDGMENT
: ENTRY
:
: RELEASED: 06/23/2021

________________________________________________________________
APPEARANCES:

S. Andrew Sturgill, Portsmouth, Ohio, for Appellant.
________________________________________________________________

Wilkin, J.

{¶1} This is an appeal from a judgment of the Scioto County Court of

Common Pleas, Probate Division (“probate court”), that denied appellant-father,

Caleb Andronis’, application to change his minor son’s surname from Lore to

Andronis. Appellee-Mother, Savanna Spencer Lore, has not filed a brief in

opposition. Having reviewed the appellant’s arguments, the record, and the

applicable law, we overrule appellant’s assignment of error, and affirm the

probate court’s judgment denying appellant’s application.

BACKGROUND

{¶2} Appellee gave birth to a son (“O.B.L.”) on January 17, 2017. On

July 20, 2017, appellant filed a complaint in the domestic relations division of

the court of common pleas for parentage, allocation of parental rights and

responsibilities, and parenting time. On June 25, 2018, the court issued an

agreed entry that in pertinent part found that appellant was O.B.L.’s biological
Scioto App. No. 20CA3920 2

father, that appellee would be the custodial parent, and that appellant shall

have parenting time. Two days later, in the same court, appellant filed a motion

to change O.B.L.’s surname without success.

{¶3} On June 14, 2019, appellant filed an application to change O.B.L.’s

surname in the probate court. A hearing for the application was set for

September 12, 2019. The hearing was rescheduled twice, but eventually held

on February 26, 2020. Three witnesses testified at the hearing: appellant,

appellant’s mother (Vicki), and appellee.

{¶4} Appellant testified that he applied to change O.B.L.’s surname from

Lore, to appellant’s surname, Andronis. He testified that appellee informed him

that he was O.B.L.’s father prior to the birth, but he was not present when the

child was born. Appellant further testified that during the parentage proceeding

his relationship with appellee was “very negative,” making it difficult for him to

establish a relationship with O.B.L. Appellant currently sees O.B.L. six days a

month and he has a “very good” relationship with him. Appellant stated that his

mother, father, and brother spent a significant amount of time with O.B.L. and

that appellee’s family involvement with him is less significant. Appellant

testified that during appellee’s parenting time, O.B.L. spends a lot of time with a

babysitter. When asked by his counsel why he wanted O.B.L.’s surname

changed, appellant responded “[w]ell, I mean, he’s my son and it’s normally just

customary. I’d like to continue my last name and I’ve been proven to be the

father and I’ve made all the right choices and corrections into being the father

and I just think he deserves my last name.”
Scioto App. No. 20CA3920 3

{¶5} Next to testify was Vicki Andronis, appellant’s mother. She testified

that appellant takes care of O.B.L. “ninety-nine percent.” She testified that

O.B.L. also spends a lot of time with her husband (O.B.L.’s grandfather), Uncle

Drew, and his cousins.

{¶6} The final witness was appellee. She testified that she has support

from her family including her sister, father, aunts, uncles, and grandparents,

and O.B.L. interacts with all of them. Appellee became aware that appellant

wanted to change O.B.L.’s surname at the time he filed the application;

however, she testified that she would prefer his name not be changed because

it would be inconvenient and confusing to O.B.L. Lastly, she testified that she

had been there for O.B.L. from the beginning, so he “deserved” her surname.

{¶7} On July 17, 2020, the probate court issued an entry that made

findings based on the factors set out in In re Willhite, 85 Ohio St.3d 28, 32,

1999-Ohio-201, 706 N.E.2d 778 (1999), paragraph two of the syllabus, and

concluded that it was not in O.B.L.’s best interest to have his surname changed.

Accordingly, the court denied appellant’s application to change O.B.L.’s

surname. It is this judgment that appellant appeals, asserting a single

assignment of error.

ASSIGNMENT OF ERROR

THE PROBATE COURT ERRED AND ABUSED ITS DISCRETION IN
DENYING APPELLANT’S APPLICATION TO CHANGE THE SURNAME
OF THE MINOR CHILD

{¶8} Appellant argues that the probate court abused its discretion when it

denied his application to change O.B.L.’s surname from Lore to Andronis.
Scioto App. No. 20CA3920 4

Appellant alleges that the probate court treated him arbitrarily and unfairly citing

that both he and appellee testified that they each believed that the child

“deserved” their respective surnames, but the court admonished only appellant

for making that statement. He argues that the court’s “contempt for the

appellant saturates its entire decision to deny his Application.” Finally,

appellant argues granting his name change application would be in O.B.L.’s

best interest under the Willhite factors.

{¶9} Before we proceed in setting out appellant’s position, we feel it is

necessary to address his argument that it is in O.B.L.’s best interest to grant the

name change application. “[A]ppellate courts determine an appeal ‘on its merits

on the assignment of error[s]’ and not on ‘mere arguments.’ ” State v. Lykins, 4th

Dist. Adams No. 18CA1079, 2019-Ohio-3316, ¶ 66, quoting App.R.

12(A)(1)(b); State v. Johnson, 4th Dist. Scioto No. 17CA3814, 2018-Ohio-4516, ¶

8. The best interest determination for a name change application is made by the

trial court after considering the evidence. Our role on appeal is more limited,

which is to determine whether the trial court abused its discretion in granting or

denying the name change application. In re Skeens, 4th Dist. Highland No.

11CA2, 2011-Ohio-3424, ¶ 8, citing Jones v. Smith, Lawrence App. No. 10CA4,

2010–Ohio–4461, ¶ 5. Therefore, we have no authority to consider appellant’s

best interest argument. Consequently, our analysis in this decision is confined to

whether the court abused its discretion in denying appellant’s name change

application under the Willhite factors as asserted in his sole assignment of error.
Scioto App. No. 20CA3920 5

{¶10} Under the first factor, appellant argues that changing O.B.L.’s

surname would not detrimentally affect the preservation and development of

O.B.L.’s relationship with appellee because appellee’s surname is “Spencer

Lore,” while O.B.L.’s surname is “Lore.” Therefore, appellant argues any

confusion regarding O.B.L.’s surname already exists because he and appellee

already have different surnames. The appellant also asserts that O.B.L. is so

young there would be minimal confusion if his surname was changed to

Andronis. Finally, he argues that contrary to the probate court’s finding, it is not

absurd to believe that a name change would improve the “dynamics” of

appellant’s relationship with O.B.L.

{¶11} Regarding the second factor, appellant argues that changing

O.B.L.’s surname to Andronis would help his son identify with appellant’s

extended family because they have the same surname. He also states that

changing O.B.L.’s surname would not be detrimental to his relationship with

appellee, who testified that she plans to take her fiancé’s surname; therefore,

appellee’s surname and any children she may have thereafter would be named

“Lore Smithson.”

{¶12} Regarding the third factor, the length of time that the child has had

his or her surname, appellant recognizes that although O.B.L. has had Lore as

his surname since birth, changing his surname now would have minimal

detrimental effect because of O.B.L.’s young age.

{¶13} Regarding the fourth factor, whether the child is sufficiently mature

to express a preference as to which surname he or she would prefer, appellant
Scioto App. No. 20CA3920 6

argues that because O.B.L. is only three years old he cannot meaningfully

choose which surname he prefers.

{¶14} Regarding the fifth factor, whether the child’s surname differs from

his or her residential parent, appellant again argues that changing his son’s

surname will have minimal impact because appellee’s surname differs from

O.B.L.’s.

{¶15} Regarding the sixth factor, whether a child who bears a surname

that is different from the residential parent causes embarrassment, discomfort, or

inconvenience, appellant argues that O.B.L. is not mature enough to suffer these

feelings due to a name change.

{¶16} Regarding the seventh factor, whether a parent has failed to

maintain contact with the child and provide support for the child, appellant argues

that he has maintained contact and provided support.

{¶17} Finally, regarding the eighth and final factor, any other factor

relevant to the child’s best interest, appellant argues he cherishes his son and

provides support for him. He also argues that the probate court’s finding that he

filed the application for the name change to harm appellee is “unfounded.”

{¶18} Appellee has not filed a brief in opposition.

LAW

{¶19} R.C. 2717.01(B) permits a minor’s name to be changed by an

application “made on behalf of a minor by either of the minor's parents[.] ” The

applicant bears “ ‘the burden of showing the name change would be in the
Scioto App. No. 20CA3920 7

child's best interest.’ ” Skeens at ¶ 9, quoting In re A.B., 8th Dist. Cuyahoga No.

93693, 2010–Ohio–2227, ¶ 11.

{¶20} “[W]hen deciding whether to permit a name change for a minor child

pursuant to R.C. 2717.01(A), the trial court must consider the best interest of the

child in determining whether reasonable and proper cause has been

established.” Willhite, 85 Ohio St.3d at 28, 706 N.E.2d 778; In re Change of

Name of E.C.G., 194 Ohio App. 3d 385, 2011-Ohio-1749, 956 N.E.2d 851 (4th

Dist.) ¶ 7. In making this determination:

the trial court should consider the following factors: 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.

“[The court] should consider only those factors present in the particular

circumstances of each case.” Bobo v. Jewell, 38 Ohio St.3d 330, 528 N.E.2d

180 (1988), paragraph two of the syllabus.

{¶21} “We review a trial court’s name-change decision under an abuse of

discretion standard of review.” Skeens, Dist. Highland No. 11CA2, 2011-Ohio-

3424 at ¶ 8, citing Jones Lawrence App. No. 10CA4, 2010–Ohio–4461 at ¶ 5.

“ ‘Whether or not we would have arrived at a different conclusion if we were

undertaking a de novo review is not the issue.’ ” Id. at ¶ 17, quoting Jones at ¶
Scioto App. No. 20CA3920 8

17. “We will not substitute our judgment for that of the trial court, and we will

reverse only if the trial court abused its discretion.” Vice v. Sexton, 4th Dist.

Scioto No. 10CA3371, 2011-Ohio-1647, ¶ 25, citing Jones at ¶ 5. “An abuse of

discretion involves more than an error of judgment; it is an attitude on the part of

the court that is unreasonable, unconscionable, or arbitrary.” In re Change of

Name of Simers, 4th Dist. Washington No. 6CA30, 2007-Ohio-3232, ¶ 8, citing

Franklin Cty. Sheriff's Dept. v. State Emp. Relations Bd., 63 Ohio St.3d 498, 506,

589 N.E.2d 24 (1992).

{¶22} In a name change application case there is no jury, so the probate

court is the decider of facts. See Combs v. Hobstetter-Hall, 4th Dist. Lawrence

No. 2016-Ohio-7407, ¶ 18 (In a bench trial, the court is the trier of fact). “The

trier of fact is free to believe all, part or none of the testimony of each witness

who appears before it.” In re Hare, 4th Dist. Scioto No. 95CA2395, 1996 WL

139673, *4 (Mar. 25, 1996). Moreover, “[a] trier of fact is entitled to make

reasonable inferences from the record.” In re T.C., 4th Dist. Washington No.

9CA10, 2009-Ohio-4325, ¶ 41.

{¶23} Appellant, as applicant, had the burden of proving that changing

O.B.L.’s name would be in O.B.L.’s best interest. When asked during the

hearing, why he wanted to change O.B.L.’s surname, appellant answered: “Well

I mean he’s my son and it’s normally just customary. I’d like to continue my last

name and I’ve been proven to be the father and I’ve made all the right choices

and corrections into being the father and I just think that he deserves my last

name.” Custom “is not a proper factor for a trial court to consider in deciding
Scioto App. No. 20CA3920 9

whether to grant an application for the name change of a minor.” In re Change

of Name of Simers, 4th Dist. Washington No. 6CA30, 2007-Ohio-3232 at ¶ 12,

citing Bobo, 38 Ohio St.3d 330, 528 N.E.2d 180, and Willhite, 85 Ohio St.3d 28,

706 N.E.2d 778. Moreover, the probate court considered all eight of the Willhite

factors in evaluating the appellant’s name change application, and found six of

the eight factors indicated that a name change was not in O.B.L.’s best interest.

And the court concluded:

[I]t is not in the Child’s best interests to change his name. There is no
reasonable and proper reason to do so. He gets along well as things are.
The applicant makes no argument that it will benefit the Child to change
his name. His arguments are all self-serving. The name change is all for
him, perhaps a weapon in a continuing battle with the [appellee]. The
application is denied.

{¶24} Nevertheless, appellant argues the probate court abused its

discretion in denying appellant’s name change application. Consequently, we

will review appellant’s arguments in that regard.

{¶25} Under the first Willhite factor, the probate court found that appellee

spends more time with O.B.L., and a name change would strain the relationship

between appellee and O.B.L. and cause O.B.L. confusion. Appellant argues no

confusion in changing O.B.L.’s surname to Andronis would arise because his

surname and appellee’s surname are already different. Appellee testified that

legally she has two last names, Spencer and Lore, without any hyphenation.

While appellee does have the additional surname of Spencer, she and O.B.L.

both share the same surname of Lore. Therefore, we reject appellant’s

argument that the court was incorrect in determining that O.B.L. has the same

surname as his residential parent, appellee.
Scioto App. No. 20CA3920 10

{¶26} Under the second Willhite factor, the probate court found that O.B.L.

identifies more with appellee’s family than he does with appellant’s family

because he resides with appellee. In this regard, appellant alleges that the

court’s finding that O.B.L. spends more time with appellee than appellant by a

five to one ratio is unsupported in the record. It is unclear from the record how

the court calculated that time-share ratio, or if it is correct. But, despite

appellant’s allegation, he admits in his brief that “it is clear that the minor child

spends more time with Appellee[.]” Therefore, we conclude that the probate

court’s finding - that appellee spends more time with O.B.L. than appellant does

- is supported in the record.

{¶27} Under the third Willhite factor, the probate court correctly found that

O.B.L. had the surname of Lore all 37 months of his life. This finding is not

disputed by appellant.

{¶28} Under the fourth Willhite factor, the probate court found that O.B.L.

was too young to express a preference regarding which surname he preferred.

Appellant does not dispute this finding.

{¶29} Under the fifth Willhite factor, the probate court found that O.B.L.’s

residential parent, appellee, and O.B.L. had the same surname. Appellant

again argues that they do not have the same surname. This argument lacks

merit as we found infra.

{¶30} Under the sixth Willhite factor, the probate court found that a name

change would be inconvenient and cause discomfort for O.B.L. Appellant

argues the court’s finding that O.B.L. is not mature enough to choose which
Scioto App. No. 20CA3920 11

surname he prefers also means that he is not mature enough to experience

discomfort or inconvenience due to having a different name. The court did

determine that O.B.L. was too young to make a meaningful choice between

surnames, but here claims that it would be inconvenient and discomforting for

O.B.L.’s surname to be changed. We agree with appellant that these findings

seem to be inconsistent. Therefore, we conclude that the court’s finding under

the sixth Willhite factor is not supported in the record.

{¶31} Under the seventh factor, the probate court found in favor of the

appellant in that he had maintained contact with the O.B.L., and has supported

him. This factor is not disputed by appellant, and weighs in his favor.

{¶32} Under the eighth and final factor, the probate court found that “the

[a]ppellant pursues this action to harm [appellee], rather than to promote the

best interest of [O.B.L.].” Appellant alleges that this is an “unfounded

conclusion.”

{¶33} At the hearing, appellant testified that while attempting to establish

parentage of the child, his relationship with appellee was “very negative” and “if

we did talk, it was just arguing[.]” He also testified that the process of

establishing parentage was “very frustrating,” and when asked if he blamed

appellee, he responded: “Absolutely.” On cross-examination, appellant read

the following passage from a text that he sent to appellee after learning she was

pregnant:

You owe me one fifty. This is bullshit. So happy, so happy that
I’m having a kid with a girl who smokes cigs and weed. I’ll be
letting your parents know neither of us are ready for, neither of us
are ready and you for sure aren’t. So glad I’m having a kid, so
Scioto App. No. 20CA3920 12

glad I’ll have a kid around. I’ll be over this week to collect my
money and talk to your parents. I’ll probably just shoot myself
because that’s, because that’s the better option. So, thanks for
everything.

{¶34} Appellant further testified that he and appellee disagreed regarding the

parenting of their son. Appellant’s mother described the relationship between her

son (appellant) and appellee as “rocky.” Appellee also testified “there is no

relationship” between she and appellant.

{¶35} The probate court, which personally viewed the testimony, had the

best ability to assess the demeanor or credibility of the witnesses. Hare, 4th

Dist. Scioto No. 95CA2395, 1996 WL 139673, *4 (Mar. 25, 1996). And within

its role as factfinder, the court inferred from the testimony that appellant was

angry about the pregnancy, and his decision to pursue a name change was for

the purpose of harming appellee. T.C., 4th Dist. Washington No. 9CA10, 2009-

Ohio-4325, ¶ 41.

{¶36} Finally, appellant argues that the probate court treated him in an

arbitrary and unfair manner when it admonished him for arguing that his son

“deserved” his surname, but did not admonish appellee for making the exact

same comment. Appellant asserts that the court’s “contempt for appellant

saturates its entire decision to deny his Application.” We agree with appellant

that the court’s action of admonishing only the appellant is arbitrary, and we find

no justification for it in the law; however, this action alone does not convince us

that the court’s ultimate decision to deny appellant’s application was an abuse

of discretion.
Scioto App. No. 20CA3920 13

{¶37} In sum, we conclude the following: (1) the only reason espoused by

appellant at the hearing in support of the name change application was

because it was customary, which is not a factor that legally supports a name

change; (2) the probate court’s findings under the Willhite factors were all

supported by the record except for the sixth factor; and (3) the court’s weighing

of those factors in denying appellant’s application was not unreasonable,

unconscionable, or arbitrary.

CONCLUSION

{¶38} Accordingly, because the probate court’s denial of appellant’s name

change application was not an abuse of discretion, we affirm the court’s

judgment of denial.

JUDGMENT AFFIRMED.
Scioto App. No. 20CA3920 14

JUDGMENT ENTRY

It is ordered that the JUDGMENT IS AFFIRMED and that appellant shall
pay the costs.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the
Scioto County Common Pleas Court, Probate Division, to carry this judgment into
execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.

Smith, P.J.: Concur in Judgment and Opinion.
Hess, J.: Concur in Judgment Only.

For the Court,

BY: ___________________________
Kristy S. Wilkin, Judge

NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from the
date of filing with the clerk.