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Guzzo v. Kercher

Court of Appeals of Ohio, Eleventh District

June 28, 2013

MICHAEL GUZZO, Plaintiff-Appellant,
v.
JENNIFER KERCHER, Defendant-Appellee.

Appeal from the Lake County Court of Common Pleas, Juvenile Division, Case No. 2011CV00652.

William R. Joherl, and Mitchell D. D'Amico, (For Plaintiff-Appellant).

Randy A. Vermilya, (For Defendant-Appellee).

John W. Shryock, John Shryock Co., L.P.A., (Guardian ad litem).

OPINION

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.

{¶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, 11 th 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, ΒΆ7. Under such a standard, a reviewing court may not substitute its ...


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