Newcomb, In re

• Decision Date: 14 June 1984
• Citation: 472 N.E.2d 1142,15 OBR 198,15 Ohio App.3d 107
• Parties: , 15 O.B.R. 198 In re Change of Name of Richard Brian NEWCOMB and Stephen Thomas Newcomb. *
• Court: Ohio Court of Appeals

Page 107

15 Ohio App.3d 107

472 N.E.2d 1142, 15 O.B.R. 198

In re Change of Name of Richard Brian NEWCOMB and Stephen Thomas Newcomb. ^*

Court of Appeals of Ohio, Tenth District, Franklin County.

June 14, 1984.

Syllabus by the Court

1. It is error for the probate court, in considering an application for change of name of a minor under eighteen years of age, to fail to make a finding as to whether the change of name would be in the best interest of the child.

2. When the father is supporting the child, manifests an abiding interest in the child, is not infamous, has exercised visitation privileges and has promptly objected to the change of name, the applicant must present a special and overwhelming reason indicating that the change of name would be in the best interest of the child, in order to satisfy the R.C. 2717.01 requirement that "there exists reasonable and proper cause for changing the name."

Daniel J. Igoe, Columbus, for appellee Patricia Igoe.

Price & Berry and John F. Berry, Columbus, for appellant William S. Newcomb, Jr.

STRAUSBAUGH, Judge.

This is an appeal by appellant, William S. Newcomb, Jr., from the order of the probate court ordering that the name of Richard Brian Newcomb be changed to Richard Brian Igoe and the name of Stephen Thomas Newcomb be changed to Stephen Thomas Igoe.

This action was commenced by the mother, Patricia L. Igoe, to change the last names of Richard Brian Newcomb and Stephen Thomas Newcomb, now thirteen-year-old twins, to Richard Brian Igoe and Stephen Thomas Igoe, pursuant to R.C. 2717.01. The noncustodial father did not consent and strongly objected to the change. A hearing was held before the probate court, which rendered its decision August 11, 1983, following which the court rendered the following findings of fact and conclusions of law:

Findings of Fact

"(1) Petitioners have satisfied all notice requirements of Ohio Revised Code § 2717.01 and the non-consenting natural father, William S. Newcomb, Jr., received notice of the hearing.

"(2) At the evidentuary [sic ] hearing, both the petitioner and the non-consenting natural father were present and represented by counsel.

"(3) The petitioners, Richard Brian Newcomb age 13, date of birth February 14, 1970, and Stephen Thomas Newcomb age 13, date of birth February 14, 1970.

"(4) The petition was brought by their next friend, Patricia L. Igoe, the ex-wife of the natural father.

"(5) Patricia L. Igoe and the non-consenting natural father were married on May 16, 1964. In addition to Stephen and Brian, one other child was born of the marriage, namely Scott Newcomb, age 18, date of birth October 31, 1964.

"(6) The natural father and natural mother were divorced on March 23, 1972 and the natural mother was awarded custody subject to visitation rights granted the natural father with obligation of the natural father to pay child support in the amount of $400.00 per month.

"(7) On August 24, 1973, the natural mother married Kevin Igoe. Since that time the children have lived continuously [sic ] with the Igoe family.

"(8) The natural father has paid all child support payments as agreed upon in the Separation Agreement and has otherwise provided some additional support.

"(9) The natural father has exercised his visitation rights on a continuing basis and with some regularity at least following the Igoe marriage. On several occasions the natural father has taken the children on extended vacations. The petitioners have maintained a relationship with their grandparents Newcomb including visitation of their own volition.

"(10) Scott Newcomb, the oldest child, is well-known in the City of Worthington as an athlete and is known to Brian and Stephen's friends as Newcomb.

"(11) In August 1982, Stephen became angry with his natural father because of an assumed slight of Stephen of the natural father and expressed his anger to his mother, Mrs. Igoe. At that time, Mrs. Igoe suggested to Stephen that he change his name to Igoe because he was switching schools to go to Perry Middle School and would only know approximately twenty- five percent of the children attending the seventh grade. Mrs. Igoe subsequently suggested the same to Brian.

"(12) In August 1982, Stephen decided to change his surname to Igoe and of his own volition, went to Perry Middle School to obtain the registration form indicating to the school personnel that his name was Stephen Igoe and completed the form in the name of Stephen Igoe.

"(13) In August of 1982, Mrs. Igoe went to Perry Middle School to discuss the change of name with the school secretary, indicating that Stephen and Brian were using the name of Igoe and requesting that the school records be changed to reflect the name of Igoe. In the fall of 1982, school officials were contacted by counsel for William S. Newcomb, Jr., and advised that Stephen and Brian's correct surname was Newcomb, whereupon the written record of Perry Middle School [was] restored to reflect the name of Newcomb. Although the written record of the school reflects the name of Newcomb, class mates, coaches and teachers continued to call both Stephen and Brian by the name of Igoe in accord with the wishes of the boys.

"(14) Both boys first commenced using the name Igoe in making charges at a country club pool in order to avoid problems or embarrassment.

"(15) Both boys indicated that they knew that this would hurt their natural father's feelings but that he would get over it. They did not feel that it would hurt their relationship with their father, but may hurt their father's relationship with them.

"(16) The natural father is not sure of what his feelings are but he views this as a de facto adoption and this may contribute to an estrangement with the boys. The petitioners have discussed the matter with each other, with friends, teachers and parents and have voluntarily and intelligently elected to be known by the surname of Igoe.

"(17) Both Brian and Stephen want their name changed to Igo [sic ].

"(18) The change of name was not requested for a fraudulent purpose.

"(19) Brian and Stephen have a logical purpose for changing their name to Igoe; to-wit, so they do not have to answer so many questions about their parents' marital relationship and as a matter of convenience to them in using charge systems that are available to them.

"(20) There was no undue influence exerted on the boys in requesting a change of name."

Conclusions of Law

"(1) This matter is properly before this Court and this Court has jurisdiction of the same. All parties have been properly served and all required notices given.

"(2) Brian and Stephen are competent to testify.

"(3) O.R.C. § 2717.01 does not require a finding as to the best interest of the children, and this Court makes no such determination.

"(4)...