Backus v. Ellison ( 2016 )


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  •                      NOTICE: NOT FOR OFFICIAL PUBLICATION.
    UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
    AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
    IN THE
    ARIZONA COURT OF APPEALS
    DIVISION ONE
    SCOTT BACKUS, Plaintiff/Appellant,
    v.
    ANGELA ELLISON, Defendant/Appellee.
    No. 1 CA-CV 15-0019
    FILED 1-5-2016
    Appeal from the Superior Court in Yavapai County
    No. V1300CV201480372
    The Honorable David L. Mackey, Judge
    VACATED AND REMANDED
    APPEARANCES
    Scott Backus, Camp Verde
    Plaintiff/Appellant
    MEMORANDUM DECISION
    Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
    which Judge Kent E. Cattani and Judge John C. Gemmill joined.
    BACKUS v. ELLISON
    Decision of the Court
    J O H N S E N, Judge:
    ¶1            Scott Backus appeals the superior court's denial of his
    application to change the name of his minor daughter ("Daughter"). For the
    reasons that follow, we vacate the order denying the application and
    remand for further proceedings.
    FACTS AND PROCEDURAL BACKGROUND
    ¶2            Pursuant to Arizona Revised Statutes ("A.R.S.") section 12-601
    (2015), Backus applied to change Daughter's last name to "Backus."1
    Backus's application named Daughter's mother as a party to the judicial
    proceeding, but it does not appear from the record that he served her with
    the application. The superior court denied Backus's application without
    receiving a response and without taking evidence; the court also denied his
    subsequent motion for reconsideration. Backus timely appealed; we have
    jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) (2015) and -2101(A)
    (2015).
    DISCUSSION
    ¶3            Section 12-601(B) allows a parent to apply to change the name
    of a minor child and requires the court ruling on such application to
    "consider the best interests of the minor[.]" A.R.S. § 12-601(B). The statute
    requires that the application state whether the parent seeking the change
    has been convicted of a felony and whether any felony charges are pending
    against the parent for theft, forgery, credit-card fraud, business-fraud,
    racketeering or perjury. A.R.S. § 12-601(C)(1)-(2). We will uphold a
    superior court order on an application for a name change if it is supported
    by reasonable evidence. See Pizziconi v. Yarbrough, 
    177 Ariz. 422
    , 426 (App.
    1993).
    ¶4            Backus argues the superior court violated his due process and
    equal protection rights by denying him a fair opportunity to be heard on
    his request to change Daughter's name. We review de novo an alleged
    constitutional violation. State v. McGill, 
    213 Ariz. 147
    , 157-58, ¶ 45 (2006).
    ¶5           Backus’s interest in having his child share his name is not a
    property interest entitled to constitutional protection. See Laks v. Laks, 
    25 Ariz. App. 58
    , 60 (1975). Accordingly, Backus has not shown that he has an
    1     Absent material revision after the relevant date, we cite a statute's
    current version.
    2
    BACKUS v. ELLISON
    Decision of the Court
    interest entitled to due process protections. See Wedges/Ledges of Cal., Inc. v.
    City of Phoenix, 
    24 F.3d 56
    , 62 (9th Cir. 1994) ("A threshold requirement to a
    substantive or procedural due process claim is the plaintiff's showing of a
    liberty or property interest protected by the Constitution.").
    ¶6             Additionally, Backus has not established an equal protection
    violation. We infer Backus's argument to be that he has been treated
    differently from other fathers who have filed successful name-change
    applications for their children under § 12-601(B). This argument fails,
    however, because, among other things, Backus has not shown how the
    alleged disparate treatment limited his fundamental rights, implicated a
    suspect classification, or is not rationally related to a legitimate
    governmental interest. See Curtis v. Richardson, 
    212 Ariz. 308
    , 313, ¶ 18
    (App. 2006) ("To establish an equal protection violation, a party must
    establish (1) that it was treated differently than those who are similarly
    situated, and (2) when disparate treatment does not implicate fundamental
    rights or suspect classification, that the classification bears no rational
    relation to a legitimate state interest").
    ¶7            Nevertheless, Backus correctly asserts that the superior court
    provided no reason for denying his application. While the court could have
    denied the application for a number of valid reasons — for example, it could
    have found that Daughter's mother was an indispensable party and had not
    been served or that the unverified application was insufficient to support a
    finding that a name change was in Daughter's best interests — the court
    provided no explanation for its denial. Because we do not know the reason
    for the court's ruling, we are unable to determine whether the order is
    legally correct.
    3
    BACKUS v. ELLISON
    Decision of the Court
    CONCLUSION
    ¶8           For the foregoing reasons, we vacate the superior court's
    order denying the application for name change and remand for such
    additional proceedings as the court determines are required.2
    :ama
    2       As noted, the record does not disclose that Backus served Daughter's
    mother with the application for a name change. It does appear, however,
    that he mailed the mother a copy of his opening brief. Assuming for
    purposes of argument that the mother is a party to this appeal, we do not
    treat her failure to file an answering brief as a confession of error because,
    inter alia, Daughter's best interests are at issue. See Hoffman v. Hoffman, 
    4 Ariz. App. 83
    , 85 (1966).
    4
    

Document Info

Docket Number: 1 CA-CV 15-0019

Filed Date: 1/5/2016

Precedential Status: Non-Precedential

Modified Date: 4/18/2021