In re C.M.M. and J.L.M.

2016 Ohio 8244

• Court: Ohio Court of Appeals
• Decided: December 16, 2016
• Docket: 16CA03
• Status: Published

Opinion

[Cite as In re C.M.M. and J.L.M., 2016-Ohio-8244.]

COURT OF APPEALS HOLMES COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: IN THE MATTER OF: C.M.M. : Hon. W. Scott Gwin, P.J. AND J.L.M. : Hon. John W. Wise, J. : Hon. Craig R. Baldwin, J. : : : Case No. 16CA03 : : : OPINION

CHARACTER OF PROCEEDING: Civil appeal from from the Holmes County Court of Common Pleas, Probate Division, Case Nos. 15 NC 007 and 15 NC 008

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: December 16, 2016

APPEARANCES:

For: Appellees For: Appellant

NORMAN MILLER, JR. ROSANNE SHRINER 343 S. Crownhill Road 449 North Market Street P.O. Box 149 Wooster, OH 44691 Orrville, OH 44667 [Cite as In re C.M.M. and J.L.M., 2016-Ohio-8244.]

Gwin, P.J.

{¶1} Appellant appeals the January 29, 2016 judgment entry of the Holmes

County Court of Common Pleas, Probate Division, granting the applications for name

change filed by appellee.

Facts & Procedural History

{¶2} On May 4, 2015, appellee Sharyl M. filed applications for name change for

two minor children. Appellee is the paternal grandmother of the minor children and filed

the applications seeking to change the name of C.M.B. to C.M.M. and J.L.B. to J.L.M.

Appellant Amber G., the children’s mother (“Mother”), objected to the applications, while

the children’s father, Andy M. (“Father”), consented to the applications.

{¶3} The trial court held an evidentiary hearing on the applications on December

9, 2015. Mother testified she never agreed to change the last names of the minor

children. Mother admits she signed Exhibit 1 in 2009 to allow Father to have his name

placed on the children’s birth certificates. However, Mother denies agreeing to the name

change. Mother was not consulted when the children were enrolled in school with the

last name M. Mother is opposed to the name change because: the last name B. has a

strong heritage and the last name M. is not the best name because Father was in prison

and the last name M. is known in drug rings. Mother admits not visiting the children for a

period of eighteen months, but stated she talked to them on the phone and sent one card

to them during that period of time. Mother testified J.B. is not writing the last name M. on

her schoolwork.

{¶4} On cross-examination, Mother testified she does not use the last name B.

now, as it is her maiden name and she is married. Mother agrees Exhibit 2 states the last Holmes County, Case No. 16CA03 3

names of the children would be changed to M., but Mother stated she did not agree to

the name change. Mother testified she saw Exhibits 1 and 2 sometime in 2009 after they

were filed in the custody case. Mother stated she realized in 2009 that the mediation

report did not match what she thought the agreement was. However, she did not bring

to the court’s attention that there was a misunderstanding or mistake in the documents

until appellee filed the name change applications. She testified she told her attorney the

pleadings were wrong and asked the school to change the last names it was using for the

children.

{¶5} Mother was aware the children had been using the name M. since at least

2011, but she did not file a protest to the use of the name. She agrees the captions for

the case used the last name M. since 2011 and knows the court has been using the last

name M. for the children since 2009 and the school has been using the last name of M.

since 2011. Mother testified that Holmes County Child Support Enforcement Agency filed

a contempt complaint against her and she believes her child support arrears total

approximately $10,300. At the time of hearing, Mother had resumed paying child support

for approximately six weeks.

{¶6} Father testified he believes the name change is in the best interest of the

minor children. Further, that he thought he and Mother had agreed to the name change

in 2009 during their mediation in the custody case. Father stated the children have gone

by the last name of M. since 2009 and they are known by this last name at both home

and at school. Father testified Exhibits 1 and 2 reflect his understanding of the agreement

between him and Mother that his name would be on the birth certificates of the children Holmes County, Case No. 16CA03 4

and that their last names would be changed to M. Based on this understanding, he started

calling the children by the last name M. in 2009.

{¶7} Father testified he visits the children and they are close to his other children.

Further, that it would have a negative impact on the minor children’s relationship with their

siblings if they went by the last name B., as opposed to M. Father also stated he believes

it would negatively impact the children to go back to the name B. because it is confusing

and it is important to have the same name as their legal custodians since they live with

their paternal grandparents.

{¶8} On cross-exam, Father testified he was in prison from August of 2011 to

2013 and again from February 2014 to February 2015. Father is in arrears with his child

support in the amount of approximately $2,000. When asked why it is in the best interest

for the trial court to grant the name change, Father stated: it was his understanding he

and Mother agreed to this in 2009; the children have been called the last name M. since

2009; their friends at school know them as having the last name M.; and they reside in

the M. home.

{¶9} Sharyl M. testified the children reside with her and use the last name M.

They have used the last name M. since 2009 because she and her family understood

they had a name change in 2009. The children go by that name in school. Sharyl stated

Mother did not have contact with the children for well over a year and did not send the

children letters or cards. Sharyl testified Mother is in child support arrears of over

$10,000. Sharyl stated Mother does not use the last name B., the name she wants the

children to have. Holmes County, Case No. 16CA03 5

{¶10} On cross-examination, Sharyl testified she was granted custody of the

children in 2011. Further, that J.B. did not stop writing the name M. on her papers until

Mother re-established contact with her.

{¶11} Appellee moved to admit her exhibits. Mother did not object to the

admission of the exhibits. Exhibit 1 is the August 4, 2009 mediation agreement, signed

by both Father and Mother, in which Mother agreed to let Father have his name on the

birth certificates. Exhibit 2 is the August 9, 2009 mediation report signed by the mediator,

but not by Father or Mother, which provides that, “the parties are in agreement that the

children’s birth certificates be changed to reflect the identity of their Father and that their

last name be changed to M.”

{¶12} During the evidentiary hearing, Mother requested the court interview the

children. The trial court granted the request and interviewed the children in-camera after

finding they had sufficient reasoning ability to express their wishes as to the proposed

name change.

{¶13} The trial court issued a judgment entry on January 29, 2016 and went

through the factors contained in In re Willhite, 85 Ohio St.3d 28, 1999-Ohio-201, 706

N.E.2d 778. As to the effect of the proposed name change on the preservation and

development of the children’s relationship with each parent, the trial court found as to

Father, it would have little or no effect since Father lives close to his parents and has

some relationship with the children. The trial court also found the name change would

have no effect on the development of the children’s relationship with Mother, as she had

no physical contact for over a year and began regular contact in May of 2015. The trial

court found it was difficult to determine whether the children identify as part of Mother’s Holmes County, Case No. 16CA03 6

family unit due to her previous absence. However, the children have had ample

opportunity to identify as part of the family unit of their paternal grandparents since they

have been in their legal custody in October of 2011. The trial court noted the children

have been using the last name M. since 2009 and that the court considered the

preferences of the children after conducting an in-camera interview.

{¶14} With regards to whether the surname is different from the residential parent,

the trial court found that though the children don’t live with either parent, the proposed

surname would be the same as their residential parents. The trial court found no

embarrassment, discomfort, or inconvenience with the name change. As to parental

failure to maintain contact and support, the trial court found both parents failed to contact

and support the children. Both parents have child support arrearages. Father was absent

from the children’s lives because of his poor decisions as he was in prison from August

of 2011 to 2013 and again from February 2014 to February 2015.

{¶15} The trial court also stated it considered other relevant factors. The trial court

noted Exhibits 1 and 2 and the testimony of Father and Sharyl M. that they used the last

name M. after 2009 because they thought the issue was decided. Further, that Mother

admitted she was aware since 2009 that the last name M. was being used with regard to

both children and she did not object to the name being used until appellee filed the name

change applications. The trial court found Mother’s testimony about why she never

challenged the use of the last name M. not credible as her testimony was inconsistent

with the facts. The trial court files do not indicate a problem with the service of the

mediation agreement and report. The trial court found that between 2009 and 2015, Holmes County, Case No. 16CA03 7

Mother took no significant action to address the issue or present her concerns and only

objected when the applications were filed.

{¶16} After considering all the factors as required by Wilhite, the trial court found

the name change was in the best interest of the children and thus granted appellee’s

applications for name change.

{¶17} Mother appeals the January 29, 2016 judgment entry of the Holmes County

Court of Common Pleas, Probate Division, and assigns the following as error:

{¶18} “I. THE TRIAL COURT ABUSED ITS DISCRETION BY FINDING THAT

THE FACTS IN THE APPLICATION SHOW REASONABLE AND PROPER CAUSE FOR

THE SURNAME OF THE MINOR CHILDREN HEREIN TO BE CHANGED TO M.”

I.

{¶19} In her sole assignment of error, Mother argues the trial court abused its

discretion in granting appellee’s applications to change the children’s names from C.M.B.

to C.M.M. and J.L.B. to J.L.M.

{¶20} R.C. 2717.01 grants the authority for a probate court to make name

changes on behalf of a minor child. The standard for deciding whether to permit a name

change is “proof that * * * the facts set forth in the application show reasonable and proper

cause for changing the name of the applicant.” R.C. 2717.01(A); In re Willhite, 85 Ohio

St.3d 29, 1999-Ohio-201, 706 N.E.2d 778. In determining whether a reasonable and

proper cause for a name change has been established, a court must consider the best

interest of the child. Id. A probate court’s determination of whether a proposed name

change should be granted will only be reversed if it constitutes an abuse of discretion. Id.

A reviewing court may not substitute its own judgment for that of the trial court. Id. An Holmes County, Case No. 16CA03 8

abuse of discretion “connotes more than error of law or judgment; it implies that the court’s

attitude is unreasonable, arbitrary, or unconscionable.” Blakemore v. Blakemore, 5 Ohio

St.3d 217, 450 N.E.2d 1140 (1983).

{¶21} In determining the best interest of the child, the trial court should consider

the following factors: (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; (3) the length of time that the child has been using a surname; (4) the

preference of the child if the child is of sufficient maturity to express a meaningful

preference; (5) whether the child’s surname is different from the surname of the child’s

residential parent; (6) the embarrassment, discomfort, or inconvenience that may result

when a child bears a surname different from the residential parent’s; (7) parental failure

to maintain contact with and support of the child; and (8) any other factor relevant to the

child’s best interest. In re Willhite, 85 Ohio St.3d 28, 1999-Ohio-201, 706 N.E.2d 778.

{¶22} If the probate court has considered the appropriate factors, we will not

substitute our judgment for its judgment absent an abuse of discretion. Id. In this case,

the trial court held an evidentiary hearing and conducted a review of the applications

following Mother’s objection. The trial court specifically stated it went through the

necessary factors in Willhite and determined it is in the best interest of the children to

change their surname.

{¶23} Upon review of the record, we find the trial court duly considered the

relevant factors, and there was evidence presented to support the trial court’s

determination such that the trial court’s decision was not unreasonable, arbitrary, or

unconscionable. Holmes County, Case No. 16CA03 9

{¶24} The name change would have little effect on the preservation and

development of the children’s relationship with Mother as, prior to April or May of 2015,

Mother had no physical contact with the children for at least one year. The children

identify as part of the paternal grandparents’ family unit as they have been in their legal

custody since 2011. It is unclear whether the children are part of Mother’s family unit due

to her prolonged absence. The children have used the surname at home and at school

since 2009. The trial court stated it considered the wishes of the children after conducting

an in-camera interview with them. Since the children do not live with either parent and

their paternal grandparents have custody of them, they would have the same last name

as their legal custodians, who they have lived with since 2011. Further, as testified to by

Mother, she herself does not use the last name B. Both parents have child support

arrearages, with Mother’s being over $10,000 and Father’s being approximately $2,000.

Father failed to maintain contact due to his imprisonment for several years. Mother did

not visit the children for a period of over one year and only resumed paying child support

several weeks prior to the name change hearing.

{¶25} The trial court noted as additional factors in its decision on best interest the

testimony and contents surrounding Exhibits 1 and 2, and Mother’s failure to take action

from 2009 to 2015 to address her concerns regarding the use of the name and her

concerns about what she said was an incorrect clause in the mediation report. Exhibit 2,

the 2009 mediation report signed by the mediator, specifically provides that Mother and

Father were in agreement that the children’s last names be changed to M. Mother

testified she saw this mediation report in 2009 and it did not match what she thought the

agreement was, but she did not bring this to the trial court’s attention until the name Holmes County, Case No. 16CA03 10

change applications were filed. Father and Sharyl testified they used the name M. since

2009 since they thought the issued was decided in the 2009 case. Mother testified she

did not challenge the use of the M. name because she was fighting for custody and could

not afford it. The trial court did not find this testimony credible as her testimony was

inconsistent with the facts. The trial court is “best able to view the witnesses and observe

their demeanor, gestures, and voice inflections, and use these observations in weighing

the credibility of the proffered testimony.” Seasons Coal Co. v. Cleveland, 10 Ohio St.3d

77, 461 N.E.2d 1273 (1984).

{¶26} Mother argues in her appellate brief that Exhibit 2 should not have been

considered because it is hearsay. However, Mother did not object to the admission of

Exhibit 2 during the evidentiary hearing and also failed to object to Exhibit 2 or raise the

issue of hearsay during the questioning of Mother and/or Father about this exhibit. A

litigant who has the opportunity to raise an issue in the trial court, but declines to do so,

waives the right to raise that issue on appeal. Strip Delaware L.L.C. v. Landry’s

Restaurants, Inc., 5th Dist. Stark No. 2010 CA 00316, 2011-Ohio-4075. Holmes County, Case No. 16CA03 11

{¶27} Based on the foregoing, we find the trial court did not abuse its discretion in

granting appellee’s applications for change of name for the two minor children. Mother’s

assignment of error is overruled. The January 29, 2016 judgment entry of the Holmes

County Court of Common Pleas, Probate Division, is affirmed.

By Gwin, P.J.,

Wise, J., and

Baldwin, J., concur