Kay v. Bell

• Decision Date: 18 November 1953
• Citation: 121 N.E.2d 206,95 Ohio App. 520
• Parties: , 54 O.O. 133 KAY v. BELL et al.
• Court: Ohio Court of Appeals

Page 520

95 Ohio App. 520

121 N.E.2d 206, 54 O.O. 133

KAY v. BELL et al.

Court of Appeals of Ohio, Lorain County.

Nov. 18, 1953.

Syllabus by the Court.

1. The natural father of a minor furnishes the surname of such minor, and the mother has no legal right to select a different surname when enrolling the minor in school.

2. Where the school authorities enroll a child under an improper name selected by the mother of the minor and refuse to change that name on the records of the school to the surname of the father, a mandatory injunction action will lie to compel the school authorities to enroll the child under his proper surname.

Richard B. Kay, Cleveland, for appellant.

Paul J. Mikus, Pros. Atty., Lorain, and James Christie, Elyria, for appellees.

HUNSICKER, Judge.

In this appeal on questions of law, a narrative bill of exceptions has been filed, which purports to be a copy of the stipulation or agreed statement of facts upon which the cause was heard in the trial court. No question is raised by either party concerning the certification required to be made by the trial court of such narrative bill of exceptions, and therefore this court will accept such bill of exceptions, since it was filed within the proper time required by the statute. The parties have stated to this court that all the evidence presented in the trial court is contained in the narrative bill of exceptions under the title 'Stipulations.'

The evidence so presented in the trial court is as follows:

'It is stipulated and agreed that a divorce was granted on June 9, 1949, to Dorothy S. Kay from Norman B. Kay in the Court of Common Pleas of Cuyahoga County, Ohio, and that custody of the minor son, Bruce S. Kay, was given to the said Dorothy S. Kay, now by marriage Dorothy S. Crawford; that thereafter said Dorothy S. Kay married Robert Crawford, removed to Avon Lake, Lorain County, Ohio, and enrolled said minor child in the Avon Lake elementary school under the name of Bruce S. Crawford; that when Norman B. Kay, father of said minor child, learned of said enrollment in September of 1952 he made a written demand dated October 21, 1952, on Edna Von Pischke, president of the Board of Education of Avon Lake, Ohio, to register said child in the name of Bruce S. Kay, the name appearing on the birth certificate of said child; that a request for an opinion was made by said Board of Education upon the prosecuting attorney of Lorain County, Ohio, a copy of which opinion is attached to the petition herein and made a part hereof and a copy of which was mailed to counsel for the plaintiff; that said child to this date is still enrolled under the name of Bruce S. Crawford in the Avon Lake elementary school.

'It is further stipulated and agreed that in said divorce case, being number 590862 in the Court of Common Pleas of Cuyahoga County, Ohio, 112 N.E.2d 562, on January 7, 1953, the defendant, Norman B. Kay, the plaintiff in the present case, filed a motion to modify the decree of divorce, and, among other things, he asked that the court 'enter on its journal an order that the said minor child, Bruce S. Kay, shall at all times for all intents and purposes retain the name of Bruce S. Kay, the son of the defendant herein'; that this motion came on for hearing before Judge Donald F. Lybarger, a judge of said court, on January 15, 1953, and was overruled; that on February 4, 1953, said defendant filed a motion for a rehearing of this previous motion to modify, and on February 20, 1953, said judge granted a rehearing, and said motion was argued, heard, and submitted for decision; that said matter is now pending in said court, no decision having as yet been rendered on said rehearing.'

The trial court had before it a petition in which the following prayer for relief is contained:

'Plaintiff requests this court to issue a temporary restraining order to enjoin the further use of [the name] Bruce S. Crawford on the rolls of the public schools of Avon Lake for his son, Bruce S. Kay, and that upon final hearing, this injunction shall be made permanent and that defendants shall pay the costs of this action.

'Wherefore, plaintiff prays for a temporary restraining order against defendants, and after the final hearing this injunction shall be made permanent and that defendants shall pay the costs of this action.'

The judgment of the Common Pleas Court denied the relief sought and dismissed the plaintiff's petition and from such judgment an appeal on questions of law has been made to this court.

In what name shall the child in the in stant case be enrolled in the school which he now attends?

The Supreme Court of Ohio in the case of Pierce v. Brushart, 153 Ohio St. 372, at page 380, 92 N.E.2d 4, 8, said:

'It is universally recognized that a person may adopt any name he may choose so long as such change is not made for fraudulent purposes.

'On this subject 38 American Jurisprudence, 610, Section 28, states: 'In the absence of a statute to the contrary, a person may ordinarily change his name at will, without any legal proceedings, merely by adopting another name. He may not do so, however, for fraudulent purposes. In most jurisdictions, a change of one's name is regulated by statutes which prescribe the proceedings by which such change is to be accomplished.'

'And it has been held that where a person is as well known by one name as by another, the use of either name is sufficient.'

The name chosen for the child for registration in school was selected by the mother, whose present name is Crawford,...