[Cite as Guzzo v. Kercher, 2013-Ohio-2825.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
MICHAEL GUZZO, : OPINION
Plaintiff-Appellant, : CASE NO. 2012-L-117 - vs - :
JENNIFER KERCHER, :
Defendant-Appellee. :
Appeal from the Lake County Court of Common Pleas, Juvenile Division, Case No. 2011CV00652.
Judgment: Affirmed.
William R. Joherl, and Mitchell D. D’Amico, 7333 Center Street, Mentor, OH 44060 (For Plaintiff-Appellant).
Randy A. Vermilya, 30432 Euclid Avenue, Suite 101, Wickliffe, OH 44092 (For Defendant-Appellee).
John W. Shryock, John Shryock Co., L.P.A., 30601 Euclid Avenue, Wickliffe, OH 44092 (Guardian ad litem).
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, Michael Guzzo, appeals from the judgment of the Lake County
Court of Common Pleas, Juvenile Division, adopting the magistrate’s decision denying
his motion to change the surname of the parties’ minor daughter. For the reasons
discussed below, we affirm. {¶2} The parties’ minor daughter was born on November 30, 2010. The parties
were never married. Once paternity was established, appellant filed a complaint to
establish parental rights and responsibilities and appellant was granted limited
temporary visitation. Appellant filed a motion to change the child’s surname from
Kercher to Guzzo. The parties subsequently entered into a shared parenting plan,
resolving all matters except for the name change.
{¶3} On February 28, 2012, a hearing on the issue of the child’s name change
was held. The evidence at the hearing established that upon learning appellee was
pregnant, appellant sent appellee a text stating he wanted nothing to do with “it” and he
never wanted to “see that thing.” After the child’s birth and parentage was established,
however, appellant took active steps to involve himself in the child’s upbringing.
Appellant and appellee live in different communities. And, pursuant to the parties’
agreement, appellee will be the residential parent for purposes of school when the child
reaches the appropriate age.
{¶4} Appellant testified that the court should order name change because it
would be less evident she was born out of wedlock if the child had his last name,
thereby ameliorating potential embarrassment later in life. Appellant further testified
that it would be less confusing to the child because his last name will never change; if,
however, appellee marries another man, her name would likely change and the child
would be left with a surname different than both parents. Appellant also claimed giving
the child his last name would create a stronger bond between him and his daughter.
And, finally, appellant testified he wanted the child to have his last name based on his
“personal selfishness,” i.e., he asserted he was proud of her and wanted everyone to
know she is his daughter.
2 {¶5} Appellee testified that, even if she were to marry in the future, she
intended on keeping her maiden name and therefore the child would not suffer any
confusion in that regard. And, in any event, appellee noted that appellant had a criminal
record and she did not wish to have their daughter’s name overtly connected with
appellant’s surname. Appellee further testified she has arranged several college
savings plans in the child’s name. Appellee also testified that the baby had received
certain gifts from appellee’s family as well as a baptismal certificate with her full name
either printed or embroidered on the items. In appellee’s view, these items are not
readily replaceable and, even if they could be replaced, the replacements would not
hold the same sentimental value.
{¶6} After considering the evidence, the magistrate issued his decision denying
appellant’s motion. Appellant filed objections to the magistrate’s decision, which were
later overruled by the trial court. The trial court adopted the magistrate’s decision in full.
This appeal follows.
{¶7} Appellant assigns the following error for this court’s review:
{¶8} “The trial court committed prejudicial error in denying the Plaintiff-
Appellant’s motion for a name change.”
{¶9} An appellate court reviews a trial court’s adoption of a magistrate’s
decision for an abuse of discretion. See e.g. Fortney v. Willhoite, 11th Dist. No. 2011-L-
120, 2012-Ohio-3024, ¶33. An abuse of discretion is a term of art, connoting a judgment
that fails to comport with reason or the record. See e.g. Janecek v. Marshall, 11th Dist.
No. 2010-L-059, 2011-Ohio-2994, ¶7. Under such a standard, a reviewing court may
not substitute its own judgment for that of the trial court. See e.g. D.W. v. T.L., 134
Ohio St.3d 515, 2012-Ohio-5743, ¶10.
3 {¶10} “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 (1988), paragraph one of
the syllabus. The Court in Bobo set forth the following factors a trial court should
consider in assessing the child’s best interest in a name-change case involving
unmarried parents:
{¶11} 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. Id. at paragraph two of the
syllabus.
{¶12} Further, in In re Willhite, 85 Ohio St.3d 28, 1999-Ohio-201, the Court
added two other specific factors for a trial court to consider; to wit: “whether the child’s
surname is different from the surname of the child’s residential parent” and “parental
failure to maintain contact with and support the child.” Id. at paragraph two of the
syllabus. The Supreme Court has emphasized, however, that the foregoing factors are
merely guidelines and courts should consider only those that are present in the
circumstances of the case before them. Bobo, supra; see also D.W., supra, at ¶13,
¶17. The moving party must present sufficient evidence to affirmatively demonstrate
4 that altering the status quo via a name change is in the child’s best interest. Id., citing In
re Change of Name of Halliday, 11th Dist. No. 2005-G-2629, 2006-Ohio-2646, ¶18.
{¶13} Given the evidence, we conclude the magistrate did not err in ruling
appellant failed to produce sufficient evidence that a name change is in the child’s best
interest. Appellant’s argument that the child may suffer embarrassment and confusion if
she does not have his name is speculative. First of all, if the child retains appellee’s
maiden name, it is far from obvious that she will experience shame in the future.
Moreover, the possible confusion the child might have if she did not possess appellant’s
last name is premised upon assumptions that were unsubstantiated; namely, that
appellee will get married and such a marriage would eventuate in appellee changing her
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[Cite as Guzzo v. Kercher, 2013-Ohio-2825.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
MICHAEL GUZZO, : OPINION
Plaintiff-Appellant, : CASE NO. 2012-L-117 - vs - :
JENNIFER KERCHER, :
Defendant-Appellee. :
Appeal from the Lake County Court of Common Pleas, Juvenile Division, Case No. 2011CV00652.
Judgment: Affirmed.
William R. Joherl, and Mitchell D. D’Amico, 7333 Center Street, Mentor, OH 44060 (For Plaintiff-Appellant).
Randy A. Vermilya, 30432 Euclid Avenue, Suite 101, Wickliffe, OH 44092 (For Defendant-Appellee).
John W. Shryock, John Shryock Co., L.P.A., 30601 Euclid Avenue, Wickliffe, OH 44092 (Guardian ad litem).
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, Michael Guzzo, appeals from the judgment of the Lake County
Court of Common Pleas, Juvenile Division, adopting the magistrate’s decision denying
his motion to change the surname of the parties’ minor daughter. For the reasons
discussed below, we affirm. {¶2} The parties’ minor daughter was born on November 30, 2010. The parties
were never married. Once paternity was established, appellant filed a complaint to
establish parental rights and responsibilities and appellant was granted limited
temporary visitation. Appellant filed a motion to change the child’s surname from
Kercher to Guzzo. The parties subsequently entered into a shared parenting plan,
resolving all matters except for the name change.
{¶3} On February 28, 2012, a hearing on the issue of the child’s name change
was held. The evidence at the hearing established that upon learning appellee was
pregnant, appellant sent appellee a text stating he wanted nothing to do with “it” and he
never wanted to “see that thing.” After the child’s birth and parentage was established,
however, appellant took active steps to involve himself in the child’s upbringing.
Appellant and appellee live in different communities. And, pursuant to the parties’
agreement, appellee will be the residential parent for purposes of school when the child
reaches the appropriate age.
{¶4} Appellant testified that the court should order name change because it
would be less evident she was born out of wedlock if the child had his last name,
thereby ameliorating potential embarrassment later in life. Appellant further testified
that it would be less confusing to the child because his last name will never change; if,
however, appellee marries another man, her name would likely change and the child
would be left with a surname different than both parents. Appellant also claimed giving
the child his last name would create a stronger bond between him and his daughter.
And, finally, appellant testified he wanted the child to have his last name based on his
“personal selfishness,” i.e., he asserted he was proud of her and wanted everyone to
know she is his daughter.
2 {¶5} Appellee testified that, even if she were to marry in the future, she
intended on keeping her maiden name and therefore the child would not suffer any
confusion in that regard. And, in any event, appellee noted that appellant had a criminal
record and she did not wish to have their daughter’s name overtly connected with
appellant’s surname. Appellee further testified she has arranged several college
savings plans in the child’s name. Appellee also testified that the baby had received
certain gifts from appellee’s family as well as a baptismal certificate with her full name
either printed or embroidered on the items. In appellee’s view, these items are not
readily replaceable and, even if they could be replaced, the replacements would not
hold the same sentimental value.
{¶6} After considering the evidence, the magistrate issued his decision denying
appellant’s motion. Appellant filed objections to the magistrate’s decision, which were
later overruled by the trial court. The trial court adopted the magistrate’s decision in full.
This appeal follows.
{¶7} Appellant assigns the following error for this court’s review:
{¶8} “The trial court committed prejudicial error in denying the Plaintiff-
Appellant’s motion for a name change.”
{¶9} An appellate court reviews a trial court’s adoption of a magistrate’s
decision for an abuse of discretion. See e.g. Fortney v. Willhoite, 11th Dist. No. 2011-L-
120, 2012-Ohio-3024, ¶33. An abuse of discretion is a term of art, connoting a judgment
that fails to comport with reason or the record. See e.g. Janecek v. Marshall, 11th Dist.
No. 2010-L-059, 2011-Ohio-2994, ¶7. Under such a standard, a reviewing court may
not substitute its own judgment for that of the trial court. See e.g. D.W. v. T.L., 134
Ohio St.3d 515, 2012-Ohio-5743, ¶10.
3 {¶10} “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 (1988), paragraph one of
the syllabus. The Court in Bobo set forth the following factors a trial court should
consider in assessing the child’s best interest in a name-change case involving
unmarried parents:
{¶11} 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. Id. at paragraph two of the
syllabus.
{¶12} Further, in In re Willhite, 85 Ohio St.3d 28, 1999-Ohio-201, the Court
added two other specific factors for a trial court to consider; to wit: “whether the child’s
surname is different from the surname of the child’s residential parent” and “parental
failure to maintain contact with and support the child.” Id. at paragraph two of the
syllabus. The Supreme Court has emphasized, however, that the foregoing factors are
merely guidelines and courts should consider only those that are present in the
circumstances of the case before them. Bobo, supra; see also D.W., supra, at ¶13,
¶17. The moving party must present sufficient evidence to affirmatively demonstrate
4 that altering the status quo via a name change is in the child’s best interest. Id., citing In
re Change of Name of Halliday, 11th Dist. No. 2005-G-2629, 2006-Ohio-2646, ¶18.
{¶13} Given the evidence, we conclude the magistrate did not err in ruling
appellant failed to produce sufficient evidence that a name change is in the child’s best
interest. Appellant’s argument that the child may suffer embarrassment and confusion if
she does not have his name is speculative. First of all, if the child retains appellee’s
maiden name, it is far from obvious that she will experience shame in the future.
Moreover, the possible confusion the child might have if she did not possess appellant’s
last name is premised upon assumptions that were unsubstantiated; namely, that
appellee will get married and such a marriage would eventuate in appellee changing her
surname to that of her would-be husband’s, something appellee specifically testified
would not occur. Accordingly, the hypothetical arguments advanced by appellant were
essentially negated by appellee’s testimony.
{¶14} Further, while a name change could, at least metaphysically, enhance
appellant’s bond with the child, altering the status quo could also concomitantly disturb
the same bond appellee has with the child. Such a result, without more, does not
militate in favor of the child’s best interests.
{¶15} Appellant did not testify that changing the name would somehow
strengthen the child’s identity with a family unit or indicate how he or the child would
reap some specific ultimate benefit from the name change. And courts have held that
the mere desire for a child to possess a surname is insufficient to establish a name
change is in the child’s best interests. In re C.L.T., 12th Dist. No. CA2011-04-073,
2012-Ohio-427, ¶32 (father’s interest that son carry on family name was insufficient to
meet burden in name-change case); Erin C. v. Christopher R., 129 Ohio App.3d 290,
5 293 (6th Dist.1998) (finding an abuse of discretion for the trial court to order name
change where the only evidence was father wanted his son to have his surname); In re
Wolfe, 2d Dist. No. 19136, 2002-Ohio-3277 (finding an abuse of discretion where the
trial court ordered a name change when the only relevant evidence was his desire to
have the name changed).
{¶16} In this case, even though appellant asserted reasons other than his
“selfishness” for requesting the name change, none of the arguments were particularly
compelling. The magistrate echoed this point when he observed “though neither [party]
has convincing arguments for his or her position, the burden of proof is on [appellant]
that the name change is in the child’s best interest.” In denying the motion, therefore,
magistrate concluded that the evidence appellant produced was insufficient to
affirmatively show the change of name was in the child’s best interests. We conclude
this decision comports with the record. We accordingly hold the trial court did not abuse
its discretion in adopting the magistrate’s decision.
{¶17} Appellant’s assignment of error is without merit.
{¶18} For the reasons discussed in this opinion, the judgment of the Lake
County Court of Common Pleas, Juvenile Division, is affirmed.
TIMOTHY P. CANNON, P.J.,
DIANE V. GRENDELL, J.,
concur.