Korie M. Leslie v. Jeremy D. Farmer , 2016 Ind. App. LEXIS 146 ( 2016 )

FILED
May 11 2016, 8:26 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Jonathan M. Young Warren C. Mathies
Law Office of Jonathan M. Young, Long & Mathies Law Firm, P.C.
P.C. Boonville, Indiana
Newburgh, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Korie M. Leslie, May 11, 2016
Appellant-Respondent, Court of Appeals Case No.
87A01-1508-JP-1164
v. Appeal from the Warrick Superior
Court
Jeremy D. Farmer, The Honorable Robert R.
Appellee-Petitioner. Aylsworth, Judge
Trial Court Cause No.
87D02-1002-JP-4
Brown, Judge.
Court of Appeals of Indiana | Opinion 87A01-1508-JP-1164| May 11, 2016 Page 1 of 13
[1] Korie M. Leslie (“Mother”) appeals the trial court’s order granting the request
of Jeremy D. Farmer (“Father”) to change the last name of B. (“Child”) to
Father’s last name. Mother raises one issue which we revise and restate as
whether the court abused its discretion in granting Father’s request. We affirm.
Facts and Procedural History
[2] Father filed a petition to establish paternity on February 5, 2010, requesting an
order for testing to determine if he was the biological father of Mother’s unborn
child. Child was born on August 30, 2010. An entry in the chronological case
summary (“CCS”) in February 2011 states the court was advised that one issue
remained unresolved and that, by agreement of the parties, a hearing was
scheduled on the issue of who will supervise Father’s parenting time. On July
20, 2011, the court entered an Agreed Order stating that, based on DNA
testing, Father is the biological father of Child, ordering that Mother have
primary physical and sole legal custody of Child, setting Father’s parenting
time, determining that Father shall pay Mother child support of seventy-one
dollars per week effective September 3, 2010, acknowledging that the parties’
agreement that Father’s support arrearage was $3,266 as of July 15, 2011, and
ordering Father to pay Mother $1,629.63 for childbirth expenses and $1,500 for
her attorney fees.
[3] Mother filed an information for contempt in September 2011, and a CCS entry
on October 18, 2011, states: “Mother and attorney appear. Father, appears pro
se. Agreement recited. Father has paid money due. No sentence on I/C
ordered and father to pay as recited.” Appellant’s Appendix, Volume 1, at 6.
Court of Appeals of Indiana | Opinion 87A01-1508-JP-1164| May 11, 2016 Page 2 of 13
An entry on October 20, 2011, states: “Agreed order on contempt entered. . . .
Court clarifies 10-18 minute to confirm father has made payments toward
amounts due, but all amounts due have not been made.” Id.
[4] Mother filed a petition to modify on February 14, 2012, and Father filed a
petition to modify on March 8, 2012. On April 17, 2012, the court entered an
Agreed Order of Modification stating that the parties withdrew their petitions
and would remain as joint legal custodians of Child, and setting forth Father’s
regular and holiday parenting time.
[5] In August 2014, Father sent an email message to Mother regarding changing
Child’s last name, stating that, with Child starting preschool and Mother about
to be married, he wanted Child’s last name changed from Mother’s last name
(“Maternal Name”) to Father’s last name (“Paternal Name”) since he expected
Mother to accept her new husband’s last name. Mother replied that Child’s last
name would not be changed. An entry in the CCS on October 15, 2014, reflects
that Mother filed an information for contempt, an entry in the CCS the
following day shows a hearing scheduled, and a later entry shows the hearing
was rescheduled for May 6, 2015.
[6] An entry on October 16, 2014, states that Father by counsel filed a petition for
change of name.1 An entry in the CCS which was input on May 7, 2015, states
that the parties and counsel appeared at a hearing on miscellaneous issues on
1
The petition is not included in the record.
Court of Appeals of Indiana | Opinion 87A01-1508-JP-1164| May 11, 2016 Page 3 of 13
May 6, 2015, that the information for contempt had been satisfied with the
payment of $1,450 paid by Father on that date, that the parties stipulated that
Father overpaid ninety-six dollars on his regular child support, and that the
court, upon request by Mother’s counsel, ordered Father to pay $500 toward
Mother’s attorney fees.
[7] On July 16, 2015, the court held a hearing on Father’s petition for change of
name. He testified that he had to fight to establish paternity, that he was
current on his child support, and that, throughout Mother’s different fiancés
and the different places where Child has lived, he has consistently exercised his
parenting time. He testified that Child would turn five years old on August
30th, that, at the time Child was born, Mother was with a man and they later
broke up, that Mother then became engaged to another man and they lived
together, and that she then became engaged to her current husband. Father
testified he had taken Child to Orlando, Florida three times in the last three
years, that he exercises parenting time every other weekend and every
Wednesday from 3:00pm to 7:00pm, and that he attended Child’s games.
[8] On cross-examination, Father indicated he had not had any problems with
access to Child’s school records due to having a different last name than Child.
When asked if he thought Mother was “a good mom,” Father replied “100%.”
Transcript at 14. He stated that he had worked with Child on writing her
Paternal Name just as Mother had worked with her on writing her Maternal
Name. When asked if he thought that was confusing to Child, he replied “[n]ot
any more confusing than having three different fiancés in four years,” and when
Court of Appeals of Indiana | Opinion 87A01-1508-JP-1164| May 11, 2016 Page 4 of 13
asked if both were confusing, Father answered “[y]es . . . they are both
confusing at different levels.” Id. at 16-17. When asked if the only time he had
been current in child support in Child’s life was from May 2015 until the
hearing, Father answered that, since he was unable to see Child for the first six
months of her life, he had started out in arrears, that he had to pay Mother’s
attorney fees, and that he had been paying his arrearage until a year earlier. He
stated that his parents, grandparents, brother, sister, and an aunt and two uncles
have the Paternal Name, and that, except for one uncle, they all lived in the
Evansville area. Father indicated that he had been arrested four times, he had
two DUIs, and that a charge of battery resulting in bodily injury as a class A
misdemeanor from May 2013 was set for trial. He also acknowledged a
collection matter involving a $500 credit card bill. When asked if he had two
other opportunities to ask for Child’s name to be changed, Father answered that
he was “advised by [his] lawyer the first time that we agreed to . . . the order
that since she was dating a guy and gonna be married to him soon that we
should do what we could to get as much time with her as we could,” that “then
once they got married her name changed and we’d switch,” and that “[t]he
same thing has happened two more times since then.” Id. at 25.
[9] Mother testified that Child was enrolled in preschool under the Maternal
Name, she has health insurance for Child under the Maternal name, Child is
known in the community and identified by her doctor by that name, Child has
savings bonds in that name which were purchased by Mother’s grandmother,
and that Child’s birth certificate bears her Maternal Name. Mother further
Court of Appeals of Indiana | Opinion 87A01-1508-JP-1164| May 11, 2016 Page 5 of 13
testified that she married her current husband in September 2014 and that her
last name is hyphenated, using Maternal Name as the first portion and her
current husband’s name as the second portion. She also indicated that she uses
the Maternal Name on her business cards and that she had no criminal record
above an infraction.
[10] On cross-examination, when asked if the new baby she was carrying was going
to take the name of Maternal Name, or a hyphenated name, Mother answered
that “[w]e’re still deciding the child’s name.” Id. at 45. When asked why she
did not take her current husband’s name, Mother testified that she kept the
Maternal Name because it was Child’s last name and that she kept the Maternal
Name on her business card because she was known by that name in connection
with her job and it was just simpler.
[11] Following arguments by counsel, the court stated:
I think that current state of the law basically settles the issue for
the court. The facts of this case are very similar, I think to [In re
Paternity of N.C.G., 994 N.E.2d 331 (Ind. Ct. App. 2013),] where
the court of appeals unanimously reversed the Allen County
court that refused to change the name to the father’s surname.
Judge Baker’s opinion appears very clear as to the current state of
the law when the father pays his child support, there is no
evidence other than [Father] is currently current in the payment
of his support, has been actively involved in the child’s life and
demonstrated that he wants to solidify his bond with the child.
Judge Baker . . . writes that . . . an examination of our evolving
case law indicates that so long as the father pays child support,
exercises parenting time and actively participates in the child’s
life, then the best interest of the child may be served by giving the
Court of Appeals of Indiana | Opinion 87A01-1508-JP-1164| May 11, 2016 Page 6 of 13
child the father’s surname to reinforce the bond between the
father and his non-marital child, particularly if the father is the
non-custodial parent such as we have here. Because the father
has paid child support, exercised parenting time, actively
participated in NCG’S life and demonstrated that he wants his
son to have his name to solidify the bond that father has with his
non-custodial son, we reverse the judgment of the trial court that
refused to grant the father’s petition.
The father in this case in fact filed the petition to establish his
own paternity over [Child] and has pursued his rights throughout
the case regarding his daughter. The parties[’] relationship has
been difficult throughout, sometimes that may be an
understatement but has been and continues to be difficult
between [M]other and [F]ather of [Child] here. [Father] has
proved that the change is in [Child’s] best interest at this time.
The court would grant [Father’s] petition for the change of name
to [Paternal Name], and [Child’s] birth records should be
amended to reflect the order change of the surname to [Paternal
Name]. The court of appeals in the NCG on a subsequent page
indicated that the change of name was a tangible reminder that a
child has two parents, and not just one parent, I think that applies
in this case as well especially because of the difficult relationship
between the parties. It’s the right time to do this before [Child]
enters public school and with the parties[’] help she should adjust
quickly, so, I think under the current state of the law as I
understand it to be and based upon the facts and circumstances of
the case, [Father] has proved it is in his daughter’s best interest to
have the change of name be done to [Paternal Name] and the
court will grant the petition, enter the order accordingly. . . .
Id. at 55-57. The court entered a written order dated July 16, 2015, granting
Father’s request that Child’s last name be changed to the name of Paternal
Name.
Court of Appeals of Indiana | Opinion 87A01-1508-JP-1164| May 11, 2016 Page 7 of 13
Discussion
[12] The issue is whether the trial court abused its discretion in granting Father’s
request to change the last name of Child to the name of Paternal Name. We
review a trial court’s order granting or denying a biological father’s request to
change the name of a nonmarital child for an abuse of discretion. In re Paternity
of N.C.G., 994 N.E.2d 331, 334 (Ind. Ct. App. 2013). An abuse of discretion
occurs when the decision is clearly against the logic and effect of the facts and
circumstances before the court. Id. Findings of fact are clearly erroneous when
the record contains no evidence to support them directly or indirectly. Id. at
334-335. A judgment is clearly erroneous when the findings of fact do not
support the conclusions of law or the conclusions of law do not support the
judgment. Id. at 335.
[13] Mother contends that the change of Child’s name is not in Child’s best interests,
that Father only became current on child support in May 2015 after filing his
petition for name change, and that his support payment history was sporadic
prior to catching up just prior to the hearing. She argues that Father has a
criminal history, Child would be confused if her name were to change, Child
holds property in the name of Maternal Name, and that Child is known in her
community and school by that name. Mother further argues that “[t]here has to
be consideration for the child’s age and whether the child’s confusion resulting
from changing its identity would outweigh any benefit associated with
strengthening the child’s bond with the Father,” Appellant’s Brief at 10, that
claim preclusion applies as the parties already agreed Child’s last name was that
Court of Appeals of Indiana | Opinion 87A01-1508-JP-1164| May 11, 2016 Page 8 of 13
of Maternal Name in the July 20, 2011 Agreed Order Entry, and that the
doctrine of laches applies as Father inexcusably delayed in filing his petition.
She also claims this case presents the perfect opportunity for this court to
impose a requirement that Father should be required to show a substantial
change in circumstances warranting the name change similar to the standard of
seeking to modify child support.
[14] Father maintains that he has always exercised as much parenting time as
allowed, he actively participates in Child’s life, he is current on his support
payments, and that Child having Paternal Name serves her best interests.
Father asserts that Child sharing his name reinforces her bond with him as the
noncustodial parent, that the reinforcement is needed because of Mother’s
repeated attempts to alienate Father from Child, that Mother has lived with
four boyfriends since Child’s birth and has been engaged to three of them, and
that he has had to fight to be recognized as Child’s father and for every minute
of parenting time.
[15] Ind. Code § 16-37-2-13 provides in part that “[a] child born out of wedlock shall
be recorded . . . under the name of the mother; or . . . as directed in a paternity
affidavit . . . .” “Nevertheless, a biological father seeking to obtain a name
change of his non-marital child bears the burden of persuading the court that
the change is in the child’s best interests. Absent evidence of the child’s best
interests, the father is not entitled to obtain a name change.” In re Paternity of
N.C.G., 994 N.E.2d at 335 (internal quotation marks, brackets and citation
omitted).
Court of Appeals of Indiana | Opinion 87A01-1508-JP-1164| May 11, 2016 Page 9 of 13
[16] In In re Paternity of N.C.G., this Court stated:
In what appears to be an effort to encourage a paternal
connection with a father’s nonmarital and noncustodial child,
recent cases have concluded that it is in the child’s best interest to
give the child the father’s surname when certain indicators are
present such as the father pays child support, exercises parenting
time, and participates in the child’s life. See C.B. v. B.W., 985
N.E.2d 340, 348 (Ind. Ct. App. 2013) (stating that “Father’s
surname will connect the child with his non-custodial parent and
is a tangible reminder to the child that the child has two parents
who care for him, which is in the child’s best interests”)[, trans.
denied]; see also Petersen v. Burton, 871 N.E.2d 1025, 1029 (Ind. Ct.
App. 2007) (opining that “the indicators that complying with
Father’s request [for a name change] is in the child’s best interest
are that he does pay support, has visitation and participates in the
life of his child”).
Id. We further indicated that, as observed in C.B., having a father’s surname
under certain circumstances may be in a child’s best interest because it is a
tangible reminder that the child has two parents and that this is particularly true
when the father is the noncustodial parent. Id. at 336 (citing C.B., 985 N.E.2d
at 348).
[17] In C.B., we observed that, when a surname change is sought in a paternity
action, among other factors the trial court may properly consider are whether
the child holds property under a given name, whether the child is identified by
public and private entities and community members by a particular name, the
degree of confusion likely to be occasioned by a name change, the child’s
desires if the child is of sufficient maturity, the birth and baptismal records of
Court of Appeals of Indiana | Opinion 87A01-1508-JP-1164| May 11, 2016 Page 10 of 13
the child, the school records of older children, health records, and the impact of
a name change when there are siblings involved whose names would not be
changed. C.B., 985 N.E.2d at 343. We concluded that, “like all children, a
child born out of wedlock is better served when he knows and is identified with
both parents, and both parents are engaged in his upbringing” and that “[a]
child’s surname connects the child with the parent.” Id. at 348. We held that
the mother would “have physical custody of the child and, as such, the child
will continue to be identified with her and will be connected with her in
countless ways, large and small, on a daily basis” and that the father’s
“surname will connect the child with his non-custodial parent and is a tangible
reminder to the child that the child has two parents who care for him, which is
in the child’s best interests.” Id.
[18] The record reveals that, while Child was given the last name of Maternal Name
at birth, Father filed his petition seeking to establish paternity over six months
prior to the birth of Child, and the court subsequently entered the July 20, 2011
Agreed Order which established Father as the father of Child, granted him
parenting time, and ordered him to pay support of seventy-one dollars per week
effective September 3, 2010. The July 20, 2011 and April 17, 2012 orders did
not indicate that Father had made a request, or that the court had made a
determination, with respect to a change of Child’s last name from that of
Maternal Name to that of Paternal Name, and Father testified that he had
focused on obtaining parenting time and had decided to wait until Mother was
married to request that Child’s last name be changed.
Court of Appeals of Indiana | Opinion 87A01-1508-JP-1164| May 11, 2016 Page 11 of 13
[19] The record further reveals that Father consistently exercised his parenting time,
took Child on other trips and attended Child’s games, that Father’s parents,
grandparents, and siblings have the Paternal Name and live in the Evansville
area, and that Father and Mother share joint legal custody of Child.
[20] As to Father’s payment of child support, at the July 16, 2015 hearing, the court
took judicial notice of two exhibits admitted at the May 6, 2015 hearing, one of
which was a receipt for Father’s payment of $1,450 on May 6, 2015, to bring
him current on his support, and the other of which contained a history of his
support payments showing total distributions of $15,828 and that his first
payment was made on September 1, 2011.
[21] The court found Father was current in the payment of his support, is the
noncustodial parent, is actively involved in Child’s life, demonstrated that he
wants to solidify his bond with Child, and had filed the petition to establish his
paternity and pursued his rights throughout the case. The court further
indicated that the idea in In re Paternity of N.C.G. that a change of name was a
tangible reminder that a child has two parents is applicable in this case and that
it was the right time to change Child’s name before she entered public school
and with the parties help should adjust quickly. The court found that, based
upon the facts and circumstances of the case, Father has demonstrated it is in
Child’s best interest to have the last name of Paternal Name.
[22] The trial court, in the exercise of its discretion, considered the totality of the
circumstances in determining what was in Child’s long-term best interest.
Court of Appeals of Indiana | Opinion 87A01-1508-JP-1164| May 11, 2016 Page 12 of 13
Based upon the factors discussed above and the evidence in the record, we
cannot say the trial court’s decision is clearly against the logic and effect of the
facts and circumstances before it. Accordingly, the court did not abuse its
discretion in granting Father’s request for a name change for Child. See In re
Paternity of N.C.G., 994 N.E.2d at 334-336 (noting the trial court had found that
the father had been paying child support and exercised regular parenting time
and holding that the father’s petition to change his child’s surname should have
been granted); C.B., 985 N.E.2d at 347-348 (noting the father filed a petition to
establish paternity, paid support, exercised visitation, participated in the life of
the child, and shared joint legal custody of the child, and concluding that the
father’s surname would connect the child with his noncustodial parent, which is
in the child’s best interests).
Conclusion
[23] For the foregoing reasons, we affirm the court’s order granting Father’s petition
and ordering that Child’s last name shall be that of Paternal Name.
[24] Affirmed.
Baker, J., and May, J., concur.
Court of Appeals of Indiana | Opinion 87A01-1508-JP-1164| May 11, 2016 Page 13 of 13