Bobo v. Jewell

528 N.E.2d 180, 38 Ohio St. 3d 330, 1988 Ohio LEXIS 297

• Court: Ohio Supreme Court
• Decided: September 7, 1988
• Docket: No. 87-1172
• Status: Published

Opinions

H. Brown, J.

1

In Hughes v. Hughes (1988), 35 Ohio St. 3d 165, 518 N.E. 2d 1213, we faced the question of whether a domestic relations court could decree an allocation of the child dependency-exemption as permitted in Section 151, Title 26, U.S. Code, to the noncustodial parent, pursuant to the court’s broad discretion to determine the appropriate allocation of marital assets and property rights in divorce proceedings. We held that Section 152(e), Title 26, U.S. Code, applicable to tax years beginning after December 31, 1984, did not encroach upon or preempt the exclusive statutory authority of state courts to equitably divide property in divorce proceedings. Our holding recognized that R.C. 3105.18 (which provides that a trial court may divide property as it deems equitable) and past case law mandate that the trial court have broad discretion in arriving at an equitable property division in divorce proceedings, citing Cherry v. Cherry (1981), 66 Ohio St. 2d 348, 20 O.O. 3d 318, 421 N.E. 2d 1293.

R.C. 3111.13(C) provides that a court may make any order “concerning the duty of support * * * or any other matter in the best interest of the child. * * *” The court of appeals observed that under this provision, a trial court is authorized to order the custodial parent to sign a waiver of the child dependency exemption since such an order “* * * is arguably related to the duty of support imposed upon [the noncustodial parent] * * * in that since he is required to pay child support, he should equitably receive the benefit of such exemption.”¹

However, a parent is not automatically entitled to the exemption when that parent is ordered to pay child support. Parents are legally obligated to support their offspring and failure to adequately provide support can result in criminal charges. R.C. 2919.21. Supporting one’s children is not an option, but a duty.

Current statistics indicate that it costs, on the average, at least $69,000 to raise a child from birth to age eighteen in the Midwest region of the United States.² Requiring the noncustodial parent to pay child support is an attempt to fairly distribute the high costs of raising a child between parents. Even so, commentators state that child support paid by the noncustodial parent often falls short of one half of the actual costs incurred by the custodial parent.³

Thus, if a trial court exercises the authority to allocate a child dependency deduction to the noncustodial parent, the record must show that the interest of the child has been furthered.

The considerations which can support an order relating to the dependency allowance are exemplified in Hughes, supra. In that case, the record indicates that the court allocated marital property, the burdens of child support and the dependency exemptions in a manner designed to benefit the children while lessening the income tax obligations of the parents by increasing the level of child support awarded and giving the dependency exemptions to the parent who would benefit the most from them — in this circumstance, to the noncustodial father whose gross income exceeded that of the custodial mother. Awarding the dependency exemptions to the parent in the higher tax bracket so that the higher-earning parent could pay more child support achieved an equitable result overall.

In the present case, there was no showing that the allocation of the dependency exemption to the noncustodial parent was in the best interest of- the child. Therefore, it is unnecessary to decide whether Section 152(e), Title 26, U.S. Code is applicable to parents who have never been married.

Though we resolve the matter on different grounds, we affirm the decision of the court of appeals.

II

The remaining issue concerns the trial court’s judgment changing the child’s last name from Jewell to Bobo. The threshold question is: Was the juvenile court authorized to change the child’s name after it established that Timothy was the child’s father? If we find that the trial court has this power, we must determine whether the court of appeals was correct in ruling that there was insufficient evidence as a matter of law to support the trial court’s judgment changing the child’s last name.

A

At early common law an illegitimate child was not given the surname of the mother or father; the child acquired a surname by reputation. Gradually it became the custom that an illegitimate child assumed the mother’s surname at birth, probably because of the traditional view that the unmarried mother possessed stronger parental rights regarding the child than did the putative father.⁴ Many states have incorporated aspects of this custom into law. In Ohio, an illegitimate child must be given the surname of its mother at birth unless both parents sign the birth certificate as informants and both the mother and father designate that the child is to be given the father’s surname. R.C. 3705.14. Under this provision, Christopher’s surname was correctly established at birth.⁵ Our opinion, therefore, is confined to the narrow question of changing an illegitimate child’s surname after parentage has been established.

In Ohio, names may be changed either by resorting to a judicial proceeding or by the common-law method of simply adopting a new name, so long as the change is not made for fraudulent purposes. Pierce v. Brushart (1950), 153 Ohio St. 372, 380, 41 O.O. 398, 402, 92 N.E. 2d 4, 8. There is authority which holds that parental petitions to change the name of a minor fall within the exclusive jurisdiction of the probate court. In re Russek (1974), 38 Ohio App. 2d 45, 67 O.O. 2d 260, 312 N.E. 2d 536; Dolgin v. Dolgin (1965), 1 Ohio App. 2d 430, 30 O.O. 2d 435, 205 N.E. 2d 106. However, Timothy requested the name change for the child in the context of a parentage action pursuant to R.C. 3111.04(A) filed in the juvenile division of the common pleas court. Russek, supra, and Dolgin, supra, are inapposite to the instant case. Russek and Dolgin concern situations in which the custodial mother, after divorce, sought to change the children’s paternal surnames in judicial proceedings, and both cases predated- the June 29, 1982 enactment of R.C. 3111.13(C) (139 Ohio Laws, Part I, 2170, 2187, 2188), which authorizes the court to make any other provision in its order that is in “the best interest of the child.”

Further, when the court’s order varies from the child’s birth certificate, the court is authorized pursuant to R.C. 3111.13(B) to order a new birth certificate to be issued. This denotes legislative recognition that a court has the power to order a change in the child’s name.

It is axiomatic that once the parent-child relationship has been established, this fact has a profound impact upon the relationship of the child with both parents. The issue of what name the child should bear arises from this newly recognized relationship. If the parents disagree, then the court must intercede on behalf of the child as a disinterested arbiter.

Accordingly, we hold that 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.

B

In determining whether to allow a change in the child’s name, most courts follow the rule that the request should be granted only upon finding that it is “in the best interest of the child.” See In re Marriage of Schiffman (1980), 28 Cal. 3d 640, 647, 169 Cal. Rptr. 918, 922, 620 P. 2d 579, 583; Sullivan v. McGaw (1985), 134 Ill. App. 3d 455, 464, 480 N.E. 2d 1283, 1291; In re Russek, supra; In re Newcomb (1984), 15 Ohio App. 3d 107, 110, 15 OBR 198, 201, 472 N.E. 2d 1142, 1145; and Annotation, Rights and Remedies of Parents Inter Se with respect to the Names of their Children (1979), 92 A.L.R. 3d 1091, 1095.

We agree with the court of appeals’ conclusion that R.C. 3111.13(C) requires Ohio courts to follow the same rule. We caution the courts, however, 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. While it may be a custom to name a child after the father, giving greater weight to the father’s interest fails to consider that, where the parents have never been married, the mother -has at least an equal interest in having the child bear the maternal surname. In these times of parental equality, arguing that the child of unmarried parents should bear the paternal surname based on custom is another way of arguing that it is permissible to discriminate because the discrimination has endured for many years.⁶

In determining the best interest of the child concerning the surname to be used when parents who have never been married contest a surname, the court should consider: the length of time that the child has used a surname, the effect of a name change on the father-child relationship and on the mother-child relationship, the identification of the child as part of a family unit, the embarrassment, discomfort or inconvenience that may result when a child bears a surname different from the custodial parent’s, the preference of the child if the child is of an age and maturity to express a meaningful preference, and any other factor relevant to the child’s best interest. Courts should consider only those factors present in the particular circumstances of each case.

In applying the above standard to the facts before us, we note that the mother is the custodial parent, that the child has been known by the mother’s surname, and that no evidence in the record supports the conclusion that the change in name is in the best interest of the child. Where, as here, there is insufficient evidence, as a matter of law, to support the trial court’s judgment changing the child’s last name, the court of appeals properly reversed that part of the trial court’s order. App. R. 12(B); Superior Metal Products, Inc. v. Ohio Bur. of Emp. Serv. (1975), 41 Ohio St. 2d 143, 70 O.O. 2d 263, 324 N.E. 2d 179. We affirm the court of appeals and enter final judgment that the child of the parties shall be known as Christopher Ryan Jewell.

For reason of the foregoing, the judgment of the court of appeals is affirmed.

Judgment affirmed.

Sweeney, Locher and Holmes, JJ., concur. Moyer, C.J., concurs in part and in syllabus and judgment only. Douglas and Wright, JJ., concur in the syllabus and judgment only.

1 Nevertheless, the court below did not decide this issue because it ruled that Section 152, Title 26, U.S. Code was preemptive of state law and thus precluded the trial court from awarding the dependency exemption to a noncustodial parent.

2 Calculated by averaging 1986 figures for economy, low, and moderate costs levels in the Midwest region, Beninger & Smith, Determining Child & Spousal Support (1987 Cum. Supp.), Section 460, Tables 4-10 through 4-12.

3 See Beninger & Smith, supra, at Section 521.

4 Note, The Controversy over Children’s Surnames: Familial Autonomy, Equal Protection and the Child’s Best Interests (1979), 23 Utah L. Rev. 303, 312 (hereinafter “Utah Note”).

5 Even though Timothy testified that Christfna had not asked him to sign Christopher’s birth certificate as an informant, the child could not have been given Timothy’s surname without permission of both parents.

6 Utah Note, supra, at 311, fn. 35. The custom of bestowing the paternal surname upon a child apparently originated in England’s medieval social and legal system which vested all rights of ownership and control of the marital property in the husband. See Utah Note at 304-306. Permitting the husband to determine the surname of the child was part of that system, wherein the husband was the legal representative of the marriage, its property and its children. Kay, Sex-Based Discrimination (2 Ed. 1981) 163-165. With the enactment of Married Woman’s Acts in the mid-Nineteenth Century, wives were returned their separate legal identities, which largely dissolved the bases for patrimonial control of surnames.