[Cite as Vice v. Sexton, 2011-Ohio-1647.]

IN THE COURT OF APPEALS OF OHIO 

FOURTH APPELLATE DISTRICT 

SCIOTO COUNTY 

Ryan S. Vice, : 

 : 

 Plaintiff-Appellee,1

 : 

 : Case No. 10CA3371 

v. : 

 : DECISION AND 

Bridget Sexton, : JUDGMENT ENTRY

 : 

 Defendant-Appellant. : File-stamped date: 3-30-11 

________________________________________________________________ 

APPEARANCES:

Roxanne Hoover, Portsmouth, Ohio, for Appellant. 

________________________________________________________________ 

Kline, J.: 

{¶1} Bridget Sexton (hereinafter “Sexton”) appeals the judgment of the Scioto 

County Court of Common Pleas, Domestic Relations Division, which granted Ryan S. 

Vice’s (hereinafter “Vice”) request to change Sarah Michelle Sexton’s name to Sarah 

Michelle Vice. On appeal, Sexton claims that the trial court inappropriately used an 

appellate standard of review when it confirmed the magistrate’s decision. Because we 

find that the trial court did not apply an appellate standard of review, we disagree. 

Sexton also claims that granting Vice’s name-change request was an abuse of 

 

1

 Plaintiff-Appellee, Ryan S. Vice, did not file a brief or otherwise enter an appearance 

in this appeal. Under App. R. 18(C), we may accept Sexton’s statement of the facts and 

issues as correct and reverse the trial court’s judgment as long as her brief reasonably 

appears to sustain reversal. See Sprouse v. Miller, Lawrence App. No. 06CA37, 2007-

Ohio-4397, at fn.1; State v. Miller (1996), 110 Ohio App.3d 159, 161-62. “An appellate 

court may reverse a judgment based solely on a consideration of an appellant’s brief.” 

Sprouse at fn.1; see, also, Ford Motor Credit Co. v. Potts (1986), 28 Ohio App.3d 93, 

96; State v. Grimes (1984), 17 Ohio App.3d 71, 71-72. However, because the 

arguments in Sexton’s brief do not warrant reversal, we affirm the judgment of the trial 

court. 
Scioto App. No. 10CA3371 2 

discretion. Because we find that the trial court did not abuse its discretion, we disagree. 

Accordingly, we affirm the decision of the trial court. 

I. 

{¶2} Sarah Michelle Sexton was born in March 2007, and she is the minor child of 

Sexton and Vice. In May 2009, Vice filed a complaint to establish parentage, parenting 

time, child support, a tax exemption, and a name change. The complaint requested, 

among other things, that Sara Michelle’s surname be changed to “Vice.” 

{¶3} Sexton and Vice settled all the issues in the case, except for the namechange request. On April 12, 2010, a hearing was held before a magistrate to 

determine whether Sara Michelle’s name should be changed. 

{¶4} From Sarah Michelle’s birth through the filing of the complaint in this case, 

Vice had essentially no contact with Sarah Michelle. During that time, Vice struggled 

with drug addiction. In February 2009, Sexton contacted Vice and offered to drop a 

child support order if Vice would agree to give up his parental rights. Shortly thereafter, 

in May 2009, Vice filed the complaint in this case. 

{¶5} Several weeks before the April 2010 hearing, Vice began regular visitation 

with Sarah Michelle under a court ordered “break in” visitation schedule. And the court 

set Vice’s visitation to phase into “full Rule 6.0 parenting” in June 2010, which meant 

that Vice would be spending more time with Sarah Michelle. Vice had been paying child 

support for Sarah Michelle, but due to a recent layoff, he was approximately $699 in 

arrears. Although Vice had only recently become involved in Sarah Michelle’s life, he 

expressed a desire to maintain a relationship with her for “the rest of her life.” He also 
Scioto App. No. 10CA3371 3 

sought a name change because he feared that Sarah Michelle would suffer future 

embarrassment at school if she had a name different from his. 

{¶6} Vice also has a son, Brendon Vice, who is approximately a month younger 

than Sarah Michelle, and Vice testified that Brendon and Sarah Michelle play well 

together. Finally, Vice testified that he is engaged to be married and that his fiancé is 

planning on changing her last name to Vice. 

{¶7} Sexton opposed Vice’s name change request because, until recently, Vice 

had minimal contact with Sarah Michelle. Despite Vice’s professed desire for a 

relationship with Sarah Michelle “for the rest of her life,” Vice had not yet “proven that at 

all” to Sexton based on his prior lack of involvement in Sarah Michelle’s life. 

{¶8} Sexton is also engaged to Jesse Mays, and Sexton claimed that Mays would 

probably change his last name to “Sexton” when they got married. Mays testified, 

however, that he would change his last name “if I have to,” and the magistrate noted 

that Mays was “less than thrilled” with the prospect of changing his name. 

{¶9} Neither Sexton nor Vice wanted to change Sarah Michelle’s surname to a 

hyphenated name, such as Sexton-Vice or Vice-Sexton. 

{¶10} The magistrate issued a decision finding that “it is in the best interests of the 

minor child to grant [Vice]’s request for a change of name and the minor child’s name 

should be changed to Sarah Michelle Vice effective immediately.” Mag. Dec. at 6. 

{¶11} The trial court adopted and approved the magistrate’s decision. Sexton then 

filed a timely objection, and the trial court overruled the objection and confirmed the 

magistrate’s decision. The trial court ordered that Sarah Michelle’s name should be 

changed to Sarah Michelle Vice “effective immediately.” This appeal followed. 
Scioto App. No. 10CA3371 4 

{¶12} Sexton asserts the following assignment of error: “THE TRIAL COURT 

APPLIED THE WRONG STANDARD OF REVIEW ON OBJECTIONS TO A 

MAGISTRATE’S DECISION.” 

{¶13} Additionally, Sexton asserts that the “[m]agistrate’s decision in this matter was 

* * * unreasonable, unconscionable, and arbitrary.” We note that Sexton failed to list 

this as an assignment of error for review as required by App.R. 16(A)(3). “An appellate 

court may disregard any errors not separately assigned and argued.” State v. Cox

(Mar. 17, 2000), Hocking App. No. 99CA06 citing Austin v. Squire (1997), 118 Ohio 

App.3d 35, 37. See, also, App.R. 12(A)(2). Nevertheless, we can discern Sexton’s 

“second assignment of error” from her argument, and therefore, we will consider her 

“second assignment of error” in the interest of justice. See Roberts v. City of Wellston, 

Jackson App. No. 03CA14, 2004-Ohio-606, at ¶7, fn.1 (Kline, J., with one judge 

concurring in judgment only); State v. Knox (July 24, 1997), Vinton App. No. 97CA509. 

II. 

{¶14} In her first assignment of error, Sexton contends that “[t]he trial court applied 

the wrong standard of review on objections to a magistrate’s decision.” Appellant’s Brief 

at 4. 

{¶15} Civ.R. 53(D)(4)(d) governs a trial court’s ruling on objections to a magistrate’s 

decision. “In ruling on objections, the court shall undertake an independent review as to 

the objected matters to ascertain that the magistrate has properly determined the 

factual issues and appropriately applied the law.” Id. 

{¶16} The trial court’s review of a magistrate’s decision “contemplates a de novo

review of any issue of fact or law that a magistrate has determined when an appropriate 
Scioto App. No. 10CA3371 5 

objection is timely filed. The trial court may not properly defer to the magistrate in the 

exercise of the trial court’s de novo review. The magistrate is a subordinate officer of 

the trial court, not an independent officer performing a separate function.” Knauer v. 

Keener (2001), 143 Ohio App.3d 789, 793-94. 

{¶17} A trial court errs when it uses an appellate standard of review to review a 

magistrate’s decision. Francis v. McDermott, Darke App. No. 1744, 2008-Ohio-6723, at 

¶14. The trial court’s use of an appellate standard of review prevents an appellate court 

from conducting the appropriate review of the trial court’s decision. Id. An appellate 

court must reverse and remand when a trial court rules on a magistrate’s decision using 

an appellate standard of review. Id. 

{¶18} Because an appellate court generally presumes regularity in the proceedings 

below, we presume that the trial court conducted an independent analysis in reviewing 

the magistrate’s decision. Mahlerwein v. Mahlerwein, 160 Ohio App.3d 564, 2005-Ohio1835, at ¶47. And because of that presumption, the party asserting error bears the 

burden of affirmatively demonstrating that the trial court failed to perform an 

independent analysis. Arnold v. Arnold, Athens App. No. 04CA36, 2005-Ohio-5272, at 

¶31; Mahlerwein at ¶47. “An affirmative duty requires more than a mere inference[;] it 

requires [an] appellant to provide the reviewing court with facts to rebut our general 

presumption.” In re Taylor G., Lucas App. No. L-05-1197, 2006-Ohio-1992, at ¶21. 

Simply because a trial court adopted a magistrate’s decision does not mean that the 

court failed to exercise independent judgment. State ex rel. Scioto Cty. Child Support 

Enforcement Agency v. Adams (July 23, 1999), Scioto App. No. 98CA2617. 
Scioto App. No. 10CA3371 6 

{¶19} Here, the judgment entry that confirmed the magistrate’s decision (1) tracked 

the language of Civ. R. 53(D)(4)(d) and (2) stated: “The Court has reviewed the 

pleadings, transcript, and Objection and finds the Objection is not well taken. The Court 

finds that the Magistrate has properly determined the factual issues and appropriately 

applied the law. The Magistrate’s decision is CONFIRMED.” 

{¶20} Sexton asserts that, although the trial court did not use the phrase “abuse of 

discretion,” the court’s language “implies that the Court found that the magistrate’s 

decision was not ‘unreasonable, unconscionable or arbitrary.’” Appellant’s Brief at 10. 

{¶21} Sexton has not affirmatively demonstrated that the trial court failed to exercise 

independent judgment. Sexton does not satisfy her burden on appeal by merely 

claiming that the trial court’s language implies the use of an abuse-of-discretion 

standard. Additionally, tracking the language of Civ.R. 53(D)(4)(d) does not imply the 

use of an abuse-of-discretion standard. 

{¶22} In conclusion, we presume that the trial court conducted an independent 

analysis when it reviewed the magistrate’s decision, and Sexton has failed to rebut that 

presumption. Therefore, we find that the trial court did not apply an appellate standard 

of review when it confirmed the magistrate’s decision. Accordingly, we overrule 

Sexton’s first assignment of error. 

III. 

{¶23} As stated above, although she did not specifically list it as an assignment of 

error, Sexton argues in her “second assignment of error” that the magistrate’s decision 

was “unreasonable, unconscionable and arbitrary.” Appellant’s Brief at pg. 10. 
Scioto App. No. 10CA3371 7 

{¶24} Initially, we note that Sexton’s “second assignment of error” asks us to do 

something that we do not do. An appellate court reviews the trial court’s decision, not 

the magistrate’s decision. See Woody v. Woody, Athens App. No. 09CA34, 2010-Ohio6049, at ¶17, fn.1; In re Woodburn, Summit App. No. 20715, 2002-Ohio-35. Therefore, 

we infer that Sexton argues the trial court abused its discretion by confirming the 

magistrate’s decision. Accordingly, we will review the trial court’s decision to grant 

Vice’s name-change request. 

{¶25} We use an abuse-of-discretion standard to review a trial court’s name-change 

decision. Jones v. Smith, Lawrence App. No. 10CA4, 2010-Ohio-4461, at ¶5. We will 

not substitute our judgment for that of the trial court, and we will reverse only if the trial 

court abused its discretion. Id. “An abuse of discretion is more than an error of 

judgment; it is an attitude on the part of the court that is unreasonable, unconscionable, 

or arbitrary.” Id.; In re Change of Name of Simers, Washington App. No. 06CA30, 

2007-Ohio-3232, at ¶8. 

{¶26} A request to change a child’s name “should be granted only upon finding [by 

the trial court] that it is ‘in the best interest of the child.’” Bobo v. Jewell (1988), 38 Ohio 

St.3d 330, 334. When determining the best interests of the child in a name-change 

case, “the trial court should consider the following factors: the effect of the change on 

the preservation and development of the child’s relationship with each parent; the 

identification of the child as part of a family unit; the length of time that the child has 

used a surname; the preference of the child if the child is of sufficient maturity to 

express a meaningful preference; whether the child’s surname is different from the 

surname of the child’s residential parent; the embarrassment, discomfort, or 
Scioto App. No. 10CA3371 8 

inconvenience that may result when a child bears a surname different from the 

residential parent’s; parental failure to maintain contact with and support of the child; 

and any other factor relevant to the child’s best interest.” In re Willhite, 85 Ohio St.3d 

28, 1999-Ohio-201, at paragraph two of the syllabus. See, also, Bobo at 335. 

{¶27} Additionally, in Bobo, the Court warned against favoring the father’s interests 

based on tradition. “We caution the courts, however, to refrain from defining the bestinterest-of-the-child test as purporting to give primary or greater weight to the father’s 

interest in having the child bear the paternal surname. While it may be a custom to 

name a child after the father, giving greater weight to the father’s interest fails to 

consider that, where the parents have never been married, the mother has at least an 

equal interest in having the child bear the maternal surname. In these times of parental 

equality, arguing that the child of unmarried parents should bear the paternal surname 

based on custom is another way of arguing that it is permissible to discriminate because 

the discrimination has endured for many years.” Bobo at 334. 

{¶28} Sexton argues that the trial court’s decision was based on the “societal norm,” 

which gives preference to the father’s interests. The record, however, demonstrates 

that the trial court based the decision on the best-interests-of-the-child test. 

{¶29} The trial court’s decision relied on the best-interest-of-the-child test from In re 

Willhite. Mag. Dec. at 2-3. The court found that because Sarah Michelle was only three 

years old at the time of the hearing, she “is obviously too young to offer an opinion or 

preference as to her name.” Id. at 3. Additionally, the trial court determined that 

changing Sarah Michelle’s name now “is the best time to do so to avoid future confusion 

and embarrassment.” Id. at 4. The court found that hyphenating Sarah Michelle’s 
Scioto App. No. 10CA3371 9 

name was “clearly NOT in [her] best interests” because “the name Sexton-Vice, or ViceSexton, would both lend to embarrassment and ridicule quite easily.” Id. at 5. The court 

also noted that Sexton “could very easily decide to get married and take her husband’s 

name which would leave the child with a name different from her residential parent.” Id. 

The trial court ruled that “[c]hanging [Sarah Michelle]’s name to that of her Father would 

serve to further strengthen the bonds that are being established between Father and 

child currently.” Id. Finally, the court noted that a name change would allow Sarah 

Michelle to “share a familial connection with her half-brother.” Id. at 5-6. 

{¶30} We cannot substitute our judgment for that of the court below. “Whether or 

not we would have arrived at a different conclusion if we were undertaking a de novo 

review is not the issue.” Jones, 2010-Ohio-4461, at ¶17. The trial court applied the 

proper test, and we find nothing unreasonable, unconscionable, or arbitrary about the 

trial court’s decision. Accordingly, the trial court did not abuse its discretion when it 

granted Vice’s name-change request, and we overrule Sexton’s “second assignment of 

error.” 

{¶31} Having overruled Sexton’s assignments of error, we affirm the decision of the 

trial court. 

JUDGMENT AFFIRMED. 
Scioto App. No. 10CA3371 10 

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE AFFIRMED. Appellant shall pay the costs 

herein taxed. 

The Court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this Court directing the 

Scioto County Court of Common Pleas, Domestic Relations Division, to carry this 

judgment into execution. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 

27 of the Rules of Appellate Procedure. Exceptions. 

 Harsha, P.J. and McFarland, J.: Concur in Judgment and Opinion. 

For the Court 

 

 

 BY:_____________________________ 

 Roger L. Kline, Judge 

NOTICE TO COUNSEL 

Pursuant to Local Rule No. 14, this document constitutes a final judgment 

entry and the time period for further appeal commences from the date of filing 

with the clerk.