[Cite as In re Name Change of A.LaR.F-R to A.LaR.R., 2017-Ohio-7458.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
Hon. W. Scott Gwin, P. J.
IN THE MATTER OF: Hon. John W. Wise, J.
Hon. Earle E. Wise, Jr., J.
THE CHANGE OF NAME OF Case No. 17 CA 0015
A.LaR.F-R. to A.LaR.R. OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common
Pleas, Probate Division, Case No. 2016-
0642
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: September 1, 2017
APPEARANCES:
For Appellant For Appellee Mother
ELIZABETH V. WESTFALL ELIZABETH R. WERNER
ELIZABETH V. WESTFALL LLC THE NIGH LAW GROUP LLC
555 City Park Avenue 115 West Main Street, Suite 300(A)
Columbus, Ohio 43215 Columbus, Ohio 43215
Licking County, Case No. 17 CA 0015 2
Wise, John, J.
{¶1} Appellant-Father W.F. appeals the January 31, 2017, Judgment Entry of the
Licking County Court of Common Pleas, Probate Division, granting Appellee-Mother’s
Application for Change of Name of the minor child.
{¶2} Initially we note that Appellant's brief fails to set forth a Statement of the
Case or a Statement of the Facts as required by App.R. 16(A)(5) and (6). While we are
mindful that such omissions authorize this Court to either strike the offending portions of
the brief or sua sponte dismiss the appeal, we will review the merits of Appellant's claims
in the interest of justice. Accordingly, we have taken the following recitation of the facts
and procedural history from the record and Appellee-Mother’s brief.
STATEMENT OF THE CASE AND FACTS
{¶3} The minor child in this case was born on December 17, 2008, to Appellee-
Mother L.M.S. (nka L.M.R.) and Appellant-Father W.F. Mother and Father have never
been married to one another. Id.
{¶4} On December 20, 2008, before a Notary Public in and for the State of Ohio,
both parties signed an affirmation of paternity that listed the child's name as A.L.R. Id.
The child's original birth certificate reflected the birth name of A.L.R. Id. Mother and the
child were residents of Franklin County, Ohio, at the time of the child's birth.
{¶5} On March 18, 2009, Father filed a Complaint to Allocate Parental Rights
and Responsibilities in the Franklin County Court of Common Pleas, Division of Domestic
Relations and Juvenile Branch. In the Complaint, Father admitted that paternity had been
established by the signing of the affidavit of paternity, which has a registry number of
621380.
Licking County, Case No. 17 CA 0015 3
{¶6} After a contested hearing on the matter, the Franklin County Court issued
a Magistrate's Decision on January 20, 2010, which was adopted by Judgment Entry and
filed the same day. Although there were objections filed, the objections were dismissed
by Judgment Entry filed March 4, 2010.
{¶7} The Magistrate's Decision filed January 20, 2010, stated in the findings of
facts that the parties had "agreed" to changing the child's name to A.R.F-R. However,
the court did not Order the name change and did not file the necessary Orders to have
the birth records changed to A.R.F-R. The Decisions and Entry also designated the
Mother as the sole legal custodian of the child and allocated parental rights and
responsibilities between the parties. Id. There was no paternity determination as such
was established by the affidavit of paternity signed by the parties at the child's birth.
{¶8} Father presented the Magistrate's Decision and Entry to the Ohio Bureau of
Vital Statistics. (T. at 70-71). Father then took the changed birth certificate to the Social
Security office to change the child's name on the Social Security card. (T. at 71). Both the
birth certificate and social security cards were changed to reflect the name A.L.R-F based
on Father’s actions and the portion of the Order referring to the name change. (T. at 70-
71). The birth certificate was issued on August 24, 2012.
{¶9} There were no further court actions as to the minor child's name until Mother
filed an Application for Change of Name on September 2, 2016, in the Licking County
Common Pleas Court, Probate Division. Appellee and minor child are both residents of
Licking County, Ohio. (T. at 7, 14).
{¶10} On October 11, 2016, after Mother filed the Application for Change of Name
in Licking County, and Appellant was served with notice of the action, Appellant filed a
Licking County, Case No. 17 CA 0015 4
Motion for Temporary Restraining Order in Franklin County Court requesting an Order to
prevent Appellee from changing the minor child's name. (Franklin County Case. 09 JU
03-3574).
{¶11} On October 24, 2016, the Franklin County Court issued an ex parte order
as requested by Father.
{¶12} On October 26, 2016, Appellee filed a Motion for Relief pursuant to Civ.R.
60(B), stating that the Licking County Probate Court has jurisdiction related to the name
change, not the Franklin County Court.
{¶13} By Judgment Entry filed January 9, 2017, the Franklin County court set a
hearing date on Mother’s motion for February 6, 2017, but moved it to January 25, 2017,
by agreement of the parties and the Court.
{¶14} On January 25, 2017, the Civ.R. 60(B) Motion for Relief was heard on oral
arguments. By Judgment Entry issued January 25, 2017, the Franklin County court
issued a Judgment Entry vacating the Restraining Order. Id. In the same Entry, the
Franklin County court vacated "in part" the Order issued on January 20, 2010, to "correct
the name of the minor child." Id. The Franklin County court then "Ordered" the name of
the minor child to be changed to A.L.F-R.
{¶15} On January 31, 2017, the Court of Common Pleas of Licking County, Ohio,
Probate Division, issued a Judgment Entry ordering that the minor child's name be
changed from A.L.F-R to A.L.R. The Judgment Entry was Form 21.3 Judgment Entry
Change of the Name of a Minor. Said forms are prepared by the Supreme Court of Ohio
for the Rules of Superintendence of the Court of Ohio, Probate Forms. Id
Licking County, Case No. 17 CA 0015 5
{¶16} Although no findings of facts and conclusions of law were requested, the
Probate Court subsequently issued a Decision on February 2, 2017, which outlined the
procedural history, the opinion as to the order that was issued in Franklin County in
January 2017, and the facts supporting the name change of the child. The grounds for
the child’s name to be restored to A.L.R. included that the child had gone by A.L.R since
birth, her enrollment and school work reflect the name A.L.R., her immunization records
reflect A.L.R, and even her passport was obtained using A.L.R. The Licking County court
found that it was in the child's best interest that her legal name reflect the name she has
used and been known by for the past eight years.
{¶17} Appellant-Father now appeals, raising the following assignments of error:
ASSIGNMENTS OF ERROR
{¶18} “I. APPELLANT ASSERTS THAT THE TRIAL COURT ERRED
ASSERTING JURISDICTION OVER THE ISSUE OF THE SURNAME OF THE MINOR
CHILD, AS FRANKLIN COUNTY COURT OF COMMON PLEAS, JUVENILE DIVISION
HAS JURISDICTION OVER THE MATTER PURSUANT TO ORC § 3111.13(C) AND
UNDER CASE NO. 09 JU 03 3574
{¶19} II. SHOULD THE COURT DETERMINE JURISDICTION PROPER,
APPELLANT ASSERTS THAT THE TRIAL COURT ERRED IN GRANTING THE
APPLICATION OF LAVERNE RODGERS TO CHANGE THE NAME OF THE MINOR
CHILD FROM ALEXIS LARUE FULLEN-RODGERS TO ALEXIS LARUE RODGERS BY
FAILING TO CONSIDER THE FACTORS AS OUTLINED IN THE CASE OF IN RE
WILLHITE.”
Licking County, Case No. 17 CA 0015 6
I.
{¶20} Appellant-Father argues that the trial court erred in asserting jurisdiction in
this matter. We disagree.
{¶21} Here, Appellant-Father argues that the Franklin County Common Pleas
Court, Juvenile Division, had jurisdiction over this matter pursuant to R.C. §3111.13(C)
which allows a juvenile court to order a name change in conjunction with a parentage
action brought under R.C. Chapter 3111. Bobo v. Jewell (1988), 38 Ohio St.3d 330. In
Bobo, supra, the Ohio Supreme Court held as follows:
{¶22} “Pursuant to R.C. 3111.13(C), a court of common pleas may determine the
surname by which the child shall be known after establishment of the existence of the
parent and child relationship, and a showing that the name determination is in the best
interest of the child.”
{¶23} Apart from a parentage action, R.C. §2717.01 provides another method of
judicially changing a child's name. R.C. §2717.01 vests jurisdiction over a name-change
application in the probate court:
R.C. §2717.01 Proceedings to change name of person
(A)(1) A person desiring a change of name may file an application
in the probate court of the county in which the person resides. The
application shall set forth that the applicant has been a bona fide resident
of that county for at least one year prior to the filing of the application, the
cause for which the change of name is sought, and the requested new
name. …
***
Licking County, Case No. 17 CA 0015 7
{¶24} Pursuant to R.C. §2717.01(B), a minor's parent can apply with the probate
court for a change of name on behalf of the minor.
(B) An application for change of name may be made on behalf of a
minor by either of the minor's parents, a legal guardian, or a guardian ad
litem …
{¶25} The Licking County Probate Court, in its Decision filed February 2, 2017,
found that the matter before the Franklin County court did not involve parentage, since
that issue had previously been determined by an affirmation of parentage signed by both
parents on December 20, 2008. Rather, it originated as an action by Appellant-Father to
allocate parental rights and responsibilities pursuant to R.C. §3109.04 and §2151.23.
The Licking County Court went on to state that it therefore found that the Franklin County
Court did not have jurisdiction or statutory authority to enter a name change in this matter.
{¶26} The trial court’s opinion as to jurisdiction in Franklin County is not relevant
to this Court’s ruling for two reasons. First, a Licking County Probate Court does not have
the authority to declare a Franklin County Common Pleas Court lacked jurisdiction to do
any act and declare it void. Second, if the Franklin County Common Pleas Court had the
authority to do a name change, that in no way prevents the Licking County Probate Court
from subsequently asserting its authority to change a name thereafter.
{¶27} Upon review, this Court finds that regardless of whether jurisdiction was or
was not proper in Franklin County, the Licking County Probate Court had jurisdiction and
statutory authority over the name change application in this matter pursuant to R.C.
§2717.01.
{¶28} Appellant-Father’s First Assignment of Error is overruled
Licking County, Case No. 17 CA 0015 8
II.
{¶29} In his Second Assignment of Error, Appellant argues that the trial court
erred in granting the name change in this matter. We disagree.
{¶30} When reviewing a trial court's decision determining that a child's name
either should or should not be changed, a reviewing court may not substitute its own
judgment for that of the trial court, but it must consider whether the trial court abused its
discretion. D.W. v. T.L., 134 Ohio St.3d 515, 2012–Ohio–5743, 983 N.E.2d 1273. In order
to find an abuse of discretion, we must find that the court's action is unreasonable,
arbitrary, or unconscionable and not merely an error of law or judgment. Blakemore v.
Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1989).
{¶31} The Ohio Supreme Court has held that the same rationale applies to a name
change action in probate court pursuant to R.C. §2717.01 and a name change in a
juvenile court paternity action pursuant to R.C. 3111.13(C). D.W. v. T.L., 134 Ohio St.3d
515, 2012–Ohio–5743, 983 N.E.2d 1273. Pursuant to R.C. §3111.13(C), a court of
common pleas may determine the surname by which the child shall be known after
establishment of the existence of the parent and child relationship, and a showing that
the name determination is in the best interest of the child. Bobo v. Jewell, 38 Ohio St.3d
330, 528 N.E.2d 180 (1988).
{¶32} In deciding whether to grant such an application, the court, in determining
whether reasonable and proper cause has been established, must consider if such a
change is in the child's best interests. In re: Willhite, 85 Ohio St.3d 28, 706 N.E.2d 778
(1999). In assessing whether the change of a minor surname is in the child's best interest,
a court should consider: the effect of the change on the preservation and development of
Licking County, Case No. 17 CA 0015 9
the child's relationship with each parent; the identification of the child as part of a family
unit; the length of time a child has used a surname; the preference of the child if the child
is of sufficient mature age expressing 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. Bobo v. Jewell, 38 Ohio St.3d
330, 528 N.E.2d 180 (1988).
{¶33} In the case sub judice, the trial court conducted an evidentiary hearing in
this matter. In its Decision issued on February 2, 2017, the court outlined the procedural
history, the court’s opinion that the order issued in Franklin County in January, 2017, was
void, and the facts supporting the name change of the child. The court also included
findings of facts and conclusions of law. The court, in support of its decision that the minor
child’s name should be restored to A.L.R., stated that the child had gone by A.L.R. since
birth, her enrollment at St. Catherine’s School and school work reflect the name A.L.R.,
her immunization records reflect A.L.R., and even her passport was obtained using A.L.R.
The court went on to find that even the January, 2010, Magistrate’s decision in Franklin
County referred to the minor child with the A.R. name, not the hyphenated name. Based
on these factors, the Licking County court found that it was in the child's best interest for
her legal name to reflect the name that she has used and been known by for the past
eight years.
Licking County, Case No. 17 CA 0015 10
{¶34} 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.
{¶35} Appellant’s Second Assignment of Error is overruled.
{¶36} Based on the foregoing, we affirm the decision of the Court of Common
Pleas, Probate Division, Licking County, Ohio.
By: Wise, John J.
Gwin, P. J., and
Wise, Earle, J., concur.
JWW/d 0809