Opinion
2022-L-087
12-29-2023
IN THE MATTER OF: CHANGE OF NAME OF JANET MARIE ROHLIK TO JANET MARIE BANGERTER
Matthew C. Bangerter, Fortress Law Group, LLC, (For Appellant, Janet Marie Rohlik).
Civil Appeal from the Court of Common Pleas, Probate Division Trial Court No. 2021 NC 1195
Matthew C. Bangerter, Fortress Law Group, LLC, (For Appellant, Janet Marie Rohlik).
OPINION
MARY JANE TRAPP, J.
{¶1} Appellant, Janet Marie Rohlik ("Ms. Rohlik"), appeals the judgment of the Lake County Court of Common Pleas, Probate Division, denying her application to change her last name to that of her domestic partner, i.e., Bangerter.
{¶2} The probate court denied Ms. Rohlik's application on the basis that there was not "reasonable and proper cause" for her request under R.C. 2717.09. According to the probate court, Ms. Rohlik was effectively requesting legal validation of a common law marriage, which is prohibited in Ohio.
{¶3} Ms. Rohlik raises a single assignment of error, contending the probate court abused its discretion by denying her application. After a careful review of the record and pertinent law, we find the probate court erred in denying Ms. Rohlik's name-change application. The trial court's decision reflects unsound reasoning and is contrary to the Supreme Court of Ohio's binding precedent.
{¶4} Thus, we reverse the probate court's judgment and remand with instructions for the court to grant Ms. Rohlik's application and order the name change.
Substantive and Procedural History
{¶5} In November 2021, Ms. Rohlik, through counsel, filed an "Application for Change of Name of Adult" in the probate court, seeking to change her last name to Bangerter. Her stated reason was "[t]o cement a domestic partnership and be more united with domestic partner's family." Ms. Rohlik's domestic partner is Matthew Bangerter ("Mr. Bangerter"), who is also her legal counsel.
{¶6} In her application, Ms. Rohlik stated she "has not been convicted of, pleaded guilty to, or been adjudicated a delinquent child for identity fraud" and she "has no duty to comply with R.C. 2950.04 or R.C. 2950.041" involving a conviction of "a sexually oriented offense or a child-victim oriented offense." In an attached affidavit, Ms. Rohlik averred she "has been a bona fide legal resident of [Lake County] for a period of at least 60 days"; "[t]he application is not being made for the purpose of evading any creditors or other obligations"; she "is not a debtor in any currently pending bankruptcy proceeding"; she "has not been convicted of pleaded guilty to, or been adjudicated a delinquent child for identity fraud"; and she "does not have a duty to comply with R.C. 2950.04 or R.C. 2950.041" a result of a conviction for "a sexually oriented offense or a child-victim oriented offense."
{¶7} In December 2021, the probate court held a hearing by video conference, at which Ms. Rohlik and Mr. Bangerter appeared. Ms. Rohlik and Mr. Bangerter explained they own real property together and recently completed a "commitment ceremony" in Mexico to honor their relationship. They have chosen not to legally marry to avoid combining their financial circumstances and potentially disqualifying Mr. Bangerter's children from receiving financial aid for college.
{¶8} In May 2022, Ms. Rohlik filed a brief in support of her application, relying primarily on the Supreme Court of Ohio's decision in In re Bicknell, 96 Ohio St.3d 76, 2002-Ohio-3615, 771 N.E.2d 846.
{¶9} In August 2022, the probate court filed a judgment entry denying Ms. Rohlik's application. Although the probate court found Ms. Rohlik had satisfied the statutory requirements, it did not find a "reasonable and proper cause" for her request. The probate court reasoned as follows:
{¶10} "By asking the Court to 'cement their domestic partnership' and unify [Ms. Rohlik] to her domestic partner's family with the change of her last name to her domestic partner's last name, [Ms. Rohlik], in essence, is asking the Court to validate a common law marriage between [herself] and her domestic partner. [Ms. Rohlik] and her domestic partner, Mr. Bangerter, will be by default holding themselves out as legally married to each other by sharing the same last name.
{¶11} "Ohio law favors solemnized marriages, and explicitly prohibits common law marriages under R.C. 3105.12(B)(1) * * *
{¶12} "In the Application pending before this Court, [Ms. Rohlik] wishes to assume her domestic partner's last name because the cohabitating couple chooses not to legally marry. [Ms. Rohlik] requests that this Court validate her common law marriage to her domestic partner by allowing her to legally change her last name to his last name, an outcome not permitted under Ohio law."
{¶13} Ms. Rohlik appealed and raises the following sole assignment of error:
{¶14} "The trial court abused its discretion by denying the appellant's application for a change of name."
Standard of Review
{¶15} Ordinarily, an appellate court applies an abuse-of-discretion standard when reviewing the denial of a name-change application. In re Name Change of Davis, 3d Dist. Marion No. 9-21-05, 2021-Ohio-3879, ¶ 7. An abuse of discretion is the trial court's "'failure to exercise sound, reasonable, and legal decision-making.'" State v. Beechler, 2d Dist. Clark No. 09-CA-54, 2010-Ohio-1900, ¶ 62, quoting Black's Law Dictionary 11 (8th Ed.2004). To the extent an assignment of error relates to the construction and application of statutory language, however, it is a question of law that we review de novo. Rancho Cincinnati Rivers, LLC. v. Warren Cty. Bd. of Revision, 165 Ohio St.3d 227, 2021-Ohio-2798, 177 N.E.3d 256, ¶ 11. Under a de novo review, we afford no deference to the trial court's decision. In re Placement of A.R.V., 2016-Ohio-4929, 68 N.E.3d 410, ¶ 12 (11th Dist.).
Legal Requirements
{¶16} R.C. Chapter 2717 governs name-change applications in Ohio. "A person desiring to change the person's name may file an application in the probate court of the county in which the person resides." R.C. 2717.02. "[A]n application for a change of name shall set forth * * * (A) That the applicant has been a bona fide resident of the county for at least sixty days prior to the filing of the application. (B) The reason for which the change of name is sought. (C) The requested new name." R.C. 2717.03. The application shall be supported by an affidavit verifying certain facts. See R.C. 2717.06. "[U]pon proof that the facts set forth in the application show reasonable and proper cause for changing the name of the applicant * * *, the court may order the change of name." (Emphasis added.) R.C. 2717.09.
{¶17} In Bicknell, supra, the Supreme Court of Ohio considered the meaning of "reasonable and proper cause" in the context of two women who filed name-change applications to adopt the same surname at a time when same-sex marriage was illegal in Ohio. See id. at ¶ 1. In summarizing the reason for the name change, one of the applicants stated, "[W]e just want to share a name so that when we do have kids, when this child is born seven or eight months from now, the three of us will share the same name and we'll be a family." Id. at ¶ 15.
{¶18} A magistrate denied their applications, writing, "To grant their petitions would be contrary to the public good, contrary to encoded public policy, and contrary to natural law." Id. at ¶ 2. The probate court also denied their applications, concluding, "It is not reasonable and proper to change the surnames of cohabitating couples, because to do so would be to give an aura of propriety and official sanction to their cohabitation and would undermine the public policy of this state which promotes legal marriages and withholds official sanction from non-marital cohabitation." (Emphasis added.) Id. at ¶ 2.
{¶19} The court of appeals affirmed the probate court's judgment, holding, "We find that there is support for the trial court's determination that Ohio law favors solemnized marriages and that cohabitation contravenes this policy. Accordingly, the trial court did not abuse its discretion by finding that court sanctioning of the use of the same surname by two unmarried cohabitants is against Ohio's public policy promoting marriage." (Emphasis added.) Id. at ¶ 3.
{¶20} The Supreme Court of Ohio accepted jurisdiction and reversed, holding that "the appellants' request to change their surnames is reasonable and proper * * *." Id. at ¶ 4. The court noted, "'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.'" Id. at ¶ 8, quoting Pierce v. Brushart, 153 Ohio St. 372, 380, 92 N.E.2d 4 (1950). After considering a factually similar case from New Jersey, the court explained:
{¶21} "In the case at bar, appellants' only stated purpose for changing their names is to carry the same surname to demonstrate their level of commitment to each other and to the children that they planned to have. Both acknowledge that same-sex marriages are illegal in Ohio, and it is not their intention to have this court validate a same-sex union by virtue of granting the name-change applications. Any discussion, then, on the sanctity of marriage, the well-being of society, or the state's endorsement of nonmarital cohabitation is wholly inappropriate and without any basis in law or fact." Id. at ¶ 14.
{¶22} The court further found that the appellants "have no criminal or fraudulent purpose for wanting to change their names" and "are not attempting to evade creditors or to create the appearance of a state-sanctioned marriage." Id. at ¶ 18. The court rejected the denial of a properly presented request based on "'an individual judge's preferences,'" "'speculation about whether the applicant has made a wise decision,'" id. at ¶ 16, quoting In re Application of Ferner, 295 N.J.Super. 409, 415, 685 A.2d 78 (1996), or "'restrictions which the legislature has not'" imposed, id. at ¶ 17, quoting In re McIntrye, 552 Pa. 324, 330, 715 A.2d 400 (1998).
Analysis
{¶23} The probate court found Ms. Rohlik was effectively asking it to validate a common law marriage between herself and Mr. Bangerter because, by sharing the last name, they would be, by default, holding themselves out as legally married. According to the probate court, "Ohio law favors solemnized marriages" and explicitly prohibits common law marriage.
{¶24} The probate court's analysis reflects unsound reasoning. First, there is no evidence in the record indicating Ms. Rohlik and Mr. Bangerter intend to hold themselves out as legally married. Ms. Rohlik expressly stated the reason for her request-"[t]o cement a domestic partnership and be more united with domestic partner's family." The probate court did not find this stated reason to be pretextual, nor would the record support any such finding.
{¶25} Second, having the same surname does not necessarily imply marriage. Siblings share the same last names, as do distant cousins and complete strangers. In fact, there is no legal requirement that a spouse adopt the surname of the other. It is only by custom, in English-speaking countries, that a woman, upon marriage, adopts the surname of her husband in place of the surname of her father. While many spouses in Ohio follow this custom, no law compels it. The Ohio Revised Code includes chapters on the subjects of "Marriage" (R.C. Chapter 3101) and "Husband and Wife" (R.C. Chapter 3103). Significantly, the General Assembly omitted any mention of names in such chapters.
{¶26} Third, even if adopting a cohabitating partner's surname implies marriage, it does not necessarily imply common law marriage. The requirements for common law marriage were "'[a]n agreement of marriage in praesenti [at the present time], * * * made by parties competent to contract, accompanied and followed by cohabitation as husband and wife, * * * [and] being so treated and reputed in the community and circle in which they move,'" all shown by "'clear and convincing evidence.'" In re Redman's Estate, 135 Ohio St. 554, 558, 21 N.E.2d 659 (1939), quoting Umbenhower v. Labus, 85 Ohio St. 238, 97 N.E. 832 (1912), syllabus. Thus, common law marriage did not require the same last name, and it required much more than cohabitation.
{¶27} Fourth, the General Assembly abolished common law marriage in Ohio effective October 10, 1991. See R.C. 3105.12. Therefore, no matter what surname Ms. Rohlik and Mr. Bangerter choose to use, they cannot have any legal privileges previously associated with common law marriage. For instance, their marital status could never become an issue in subsequent litigation, particularly claims made in probate court by one claiming to have certain rights as a surviving spouse, which was the impetus behind legislation abolishing common law marriages. See Redman's Estate (involving a man who claimed to be the common law spouse of a woman who died intestate with no known heirs).
{¶28} The probate court's decision is also contrary to the Supreme Court of Ohio's precedent in Bicknell. Even if members of the public could mistakenly believe Ms. Rohlik and Mr. Bangerter were common law married, this misperception is legally irrelevant. The Bicknell court quoted a state appellate court's rejection of a similar concern:
{¶29} "'We underscore that the hearing judge did not base his decision on any disapproval of appellant or her same-sex relationship. Rather he found that there was an inappropriate purpose to the application and a potential fraud upon the public because the name change might give the misperception that New Jersey recognizes same-sex marriages as lawful.
{¶30} "This concern is misconceived. Appellant and her partner can exchange rings, proclaim devotion in a public or private ceremony, call their relationship a marriage, use the same surname, adopt and rear children. All these actions may be taken in full public view. None are offensive to the laws or stated policies of this state. To deny the applicant a statutory change of a portion of her surname to that of her same-sex partner on the hypothesis that some members of the public may be misled about the legal status of same sex marriages in New Jersey is far-fetched and inherently discriminatory.'" (Emphasis added.) Bicknell at ¶ 12-13, quoting In re Bacharach, 344 N.J.Super. 126, 135-136, 780 A.3d 579 (2001).
{¶31} This case presents an analogous situation. Ms. Rohlik and Mr. Bangerter can exchange rings, proclaim devotion in a public or private ceremony (as they apparently did), call their relationship a marriage, use the same surname, and adopt and rear children. All these actions may be taken in full public view. By law, they cannot have a common law marriage. To deny Ms. Rohlik's application to change her last name to that of her domestic partner based on the hypothesis that some members of the public may be misled about the legal status of common law marriage in Ohio is far-fetched and inherently discriminatory.
{¶32} The probate court attempted to distinguish Bicknell on the basis that, since Ohio prohibited same-sex marriage at the time, those applicants "had no other means by which to demonstrate their commitment to each other." According to the probate court, the Bicknell court was "deliberate in citing the appellants' specifically stated purposes and intentions for their name changes so as not to contradict the current law at the time."
{¶33} The holding in Bicknell is not limited to the context of same-sex relationships. The lower courts in Bicknell ruled that Ohio's public policy prefers legal marriage over nonmarital cohabitation. See id. at ¶ 2-3. The Supreme Court rejected that reasoning, stating, "Any discussion * * * on the sanctity of marriage, the well-being of society, or the state's endorsement of nonmarital cohabitation is wholly inappropriate and without any basis in law or fact." (Emphasis added.) Id. at ¶ 14. In other words, there is no basis in law for the discussion of such issues in considering a name-change application. In fact, the dissenting justice in Bicknell recognized the court's holding logically applies to all nonmarital cohabitation, by stating, "Allowing unmarried couples, whether homosexual or heterosexual, to legally assume the same last name with the stamp of state approval is directly contrary to the state's position against same-sex and common-law marriages, neither of which Ohio recognizes." (Emphasis added.) See id. at ¶ 20 (Lundberg Stratton, J., dissenting).
{¶34} In sum, the probate court erred in denying Ms. Rohlik's name-change application on the basis that her request was not "reasonable and proper" under R.C. 2717.09. Ms. Rohlik's sole assignment of error has merit. We reverse the probate court's denial of Ms. Rohlik's application and remand with instructions for the court to grant her application and order the name change.
{¶35} For the foregoing reasons, the judgment of the Lake County Court of Common Pleas, Probate Division, is reversed, and this matter is remanded for further proceedings consistent with this opinion.
EUGENE A. LUCCI, J., concurs
MATT LYNCH, J., dissents with a Dissenting Opinion.
{¶36} I respectfully dissent and would affirm the decision of the probate court. The decision whether to grant an application to change a name is discretionary. "Appellate review is limited to determining if the trial court's decision in granting or denying a requested name change is an abuse of discretion." Shendel v. Graham, 2017-Ohio-4236, 92 N.E.3d 43, ¶ 124 (11th Dist). Under this deferential standard, "[w]e are not permitted to substitute our opinion for a trial court's decision absent an abuse of discretion." Id. Yet, the majority's decision does precisely this. There is nothing inherently unreasonable or improper about the denial of Rohlik's application except that the majority believes it should have been granted. Accordingly, I dissent.
{¶37} As a preliminary matter, I note that the Supreme Court of Ohio has recently raised the issue of whether an ex parte application to the probate court constitutes a justiciable matter for the purposes of exercising appellate jurisdiction in the absence of an opposing party with adverse interests. See In re Adelaide, S.Ct. No. 2022-0934, oral argument held on April 4, 2023, citing In re Childers-Gray, 487 P.3d 96 (Utah 2021) (Lee, Associate C.J., dissenting); compare State ex rel. Barclays Bank PLC v. Hamilton Cty. Court of Common Pleas, 74 Ohio St.3d 536, 542, 660 N.E.2d 458 (1996) ("[i]t has been long and well established that it is the duty of every judicial tribunal to decide actual controversies between parties legitimately affected by specific facts and render judgments which can be carried into effect") (citation omitted).
{¶38} "[T]he 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." In re Willhite, 85 Ohio St.3d 28, 30, 706 N.E.2d 778 (1999), citing former R.C. 2717.01(A). As noted by the majority, the standard of review for the denial of a name-change application is abuse of discretion. There are no issues with statutory construction that would justify de novo review. Accordingly, it is within the sound discretion of the trial court to assess the credibility of testimony and other evidence. Any judgment regarding the persuasiveness of evidence is for the trial court, not the appellate court.
{¶39} The probate court denied Rohlik's application on the grounds that it did not find that there was "a reasonable and proper cause for the name change":
The Applicant wishes to assume her domestic partner's last name through name change proceedings instead of a legal marriage in order "to cement their domestic partnership and be more unified with [her] domestic partner's family" without financially encumbering and obligating themselves to each other because of the financing of their children's college educations. By asking the Court to "cement their domestic partnership" and unify the Applicant to her domestic partner's family with the change of her last name to her domestic partner's last name, the Applicant, in essence, is asking the Court to validate a common law marriage between the Applicant and her domestic partner. The Applicant and her domestic partner, Mr. Bangerter, will be by default holding themselves out as legally married to each other by sharing the same last name.
Ohio law favors solemnized marriages, and explicitly prohibits common law marriages * * *
In the Application pending before this Court, the Applicant wishes to assume her domestic partner's last name because the cohabitating couple chooses not to legally marry. The Applicant requests that the Court validate her common law marriage to her domestic partner by allowing her to legally change her last name to his last name, an outcome not permitted under Ohio law.
{¶40} The majority concludes the probate court's analysis "reflects unsound reasoning." Supra at ¶ 24. It states that "there is no evidence in the record indicating Ms. Rohlik and Mr. Bangerter intend to hold themselves out as legally married." But the court did not state that it was their professed intention to hold themselves out as legally married. Rather, the court quoted their intentions verbatim and held that, "in essence," they were asking the court to validate a common law marriage - not in fact, but "in essence." There was nothing improper about the court's characterization of their intentions.
{¶41} The majority then states that "having the same surname does not necessarily imply marriage," inasmuch as "[siblings share the same last names, as do distant cousins and complete strangers." Supra at ¶ 25. The majority suggests the probate court acted unreasonably because Rohlik's adoption of Bangerter's surname would not necessarily imply marriage. In the abstract, this might be valid. However, in the present circumstances, Rohlik and Bangerter are not holding themselves out as siblings, distant cousins, or complete strangers. They live and share their lives together. They have celebrated a "commitment ceremony." They own property together. The expressed purpose for changing Rohlik's surname is to cement their domestic partnership and cement her "emotional bonds" with Bangerter's extended family. They also frankly acknowledge that their reasons for not entering into formal marriage are financial considerations. In this context, Rohlik's adoption of Bangerter's surname absolutely implies marriage, if not in fact at least in essence. There was nothing unreasonable about the probate court's characterization of the implications of Rohlik changing her surname.
{¶42} The majority continues by noting that common law marriage did not require a common surname and that the Legislature abolished common law marriage in 1991. These facts do not render the probate court's decision an abuse of discretion. We must assume the probate court is well aware that common law marriage has been abolished in Ohio and is under no misconception that, if the application were granted, it would be validating an actual common law marriage. Rather, the court's (entirely legitimate) concern is that Rohlik and Bangerter would "in essence" be holding themselves out as married, i.e., that they would "by default [be] holding themselves out as legally married to each other." Compare In re Application of Sakaris, 160 Misc.2d 657, 663, 610 N.Y.S.2d 1007 (1993) ("[t]o allow such holding out would also undermine the considerations of public policy which underlay the abolition of common-law marriages in this State") (citation omitted); In re Wurgler, 136 Ohio Misc.2d 1, 2005-Ohio-7139, 844 N.E.2d 919, ¶ 11 (P.C.) ("[a] court should deny a change of name * * * if the change was in some way contrary to the strong public policy of the state").
{¶43} The majority need not agree with the probate court's reasoning nor share its conclusions. But it should defer to those conclusions as a reasonable exercise of the court's discretion under the appropriate legal standard. We are reviewing to determine whether we are satisfied that the trial court could reasonably make, not should make, the conclusion that was rendered. We do not retry the case on appeal or reweigh for ourselves the effect of the evidence in consideration of whether the statutory standard was satisfied. In the present case, the majority is essentially second-guessing the probate court rather than assessing the reasonableness of that judgment.
{¶44} Finally, the majority argues that the denial of Rohlik's application is inconsistent with the Supreme Court of Ohio's decision in In re Bicknell, 96 Ohio St.3d 76, 2002-Ohio-3615, 771 N.E.2d 846. Bicknell was "a case of first impression in Ohio" and presented the unique circumstances of two women seeking to adopt the same surname (being an amalgam of their former surnames) at a time when same-sex marriage was not permitted in Ohio. Id. at ¶ 4. The application in Bicknell was denied "because to do so would be to give an aura of propriety and official sanction to their cohabitation and would undermine the public policy of this state which promotes legal marriages and withholds official sanction from non-marital cohabitation." Id. at ¶ 2. The Supreme Court reversed noting that the applicants had "no criminal or fraudulent purpose for wanting to change their names," they were "not attempting to evade creditors," or "create the appearance of a state-sanctioned marriage." Id. at ¶ 18.
{¶45} Bicknell is readily distinguishable as it involved a same-sex couple when same-sex marriage did not exist. This context is important in interpreting the Supreme Court's statement that "[a]ny discussion * * * on the sanctity of marriage, the well-being of society, or the state's endorsement of nonmarital cohabitation is wholly inappropriate and without any basis in law or fact." Id. at ¶ 14. This language should not be construed, as the majority does, to mean that the well-being of society or the public policy of the state are improper considerations when evaluating a name-change application. If such were the case, there would be no grounds on which an application could ever be denied. Rather, this statement must be understood and applied to the facts as they existed in Bicknell. Thus, the probate court properly recognized that the public policy of Ohio has long favored "solemnized marriages [and] explicitly prohibits common law marriages."