In re the Paternity of J.A.S.: H.S. v. N.L. (mem. dec.) ( 2015 )

MEMORANDUM DECISION
May 18 2015, 9:27 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke Mark J. Roberts
Wieneke Law Office, LLC Darren A. Craig
Plainfield, Indiana Abigail T. Rom
Frost Brown Todd LLC
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In re the Paternity of J.A.S.: May 18, 2015
Court of Appeals Case No.
H.S., 49A05-1407-JP-345
Appeal from the Marion Circuit
Appellant-Respondent,
Court
v. The Honorable Louis F. Rosenberg,
Judge
N.L., The Honorable Sheryl L. Lynch,
Master Commissioner
Appellee-Petitioner.
Cause No. 49C01-1112-JP-49079
Brown, Judge.
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[1] H.S. (“Mother”) appeals the trial court’s final order dated June 25, 2014.
Mother raises two issues, which we revise and restate as whether the court
abused its discretion in granting the request of N.L. (“Father”) to change the
last name of J. (“Child”) to Father’s last name and in not entering a child
support arrearage. We affirm.
Facts and Procedural History
[2] Child was born in November 2011. On December 30, 2011, Father filed a
Verified Petition to Establish Paternity, Parenting Time, Child Support and
Related Matters, and for an Order for Paternity Testing. In the petition, Father
requested the court to order the parties to cooperate in paternity testing for
Child, award him reasonable parenting time, order him to pay Mother a
reasonable amount of child support, and order that Child’s last name be
changed from Mother’s last name (“Maternal Name”) to Father’s last name
(“Paternal Name”).
[3] On March 12, 2012, following a hearing, the court ordered the parties to
complete DNA testing, and a subsequent a DNA test established that Father
was Child’s biological father. Following a hearing on August 15, 2012, the
court entered its Preliminary Agreed Order of August 15, 2012 Hearing,1
providing that Mother have primary physical custody of Child, that Father have
parenting time as set by the court, and that Father pay child support to Mother
1
The order was noted on the chronological case summary on September 24, 2012.
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of $246 per week until he begins overnight parenting time. The order stated
that the issue of the last name of Child and all other issues would be heard at
the final hearing.
[4] The court held evidentiary hearings on March 14, 2013, January 9, 2014, and
March 25, 2014, at which the parties presented evidence and arguments
regarding the issues of Child’s last name, parenting time, and child support. At
the March 14, 2013 hearing, Father testified that, prior to the birth of Child, he
and Mother had agreed that Child’s last name would be Paternal Name, but
that, after the birth of the Child, Mother would not sign an affidavit verifying he
was Child’s father or that the last name of Child would be Paternal Name. He
indicated that an arrearage accumulated prior to the preliminary hearing, and
when asked if he knew the amount of the arrearage, he testified “[t]he better;
just over seven thousand dollars, I believe.” Transcript at 45. Father then
indicated that he understood he had to work on the reduction of the arrearage
and that he was willing to pay an additional twenty dollars per week toward the
reduction of the arrearage.
[5] At the January 9, 2014 hearing, when asked why his requested name change
was in the best interest of Child, Father testified that “it is special to [him] that
[his] father’s name is in his kids[’] and grandkids[’] names” and that he did not
think Child “should be excluded from that,” that it was special to his family as
well, that he did not “want to have that conversation with [Child] when he is
older, or when he brings it up about why he doesn’t have [Father’s] last name as
a male,” and that he believed “it would help [Child] connect with his siblings
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because they do bear the last name of [Paternal Name].” Id. at 262. He
testified that he, his brother, his dad, and his grandparent all have Child’s first
name and Paternal Name and that “it is special to us to have that name within
our name, and I did not want [Child] to be excluded from that . . . .” Id. at 273-
274. The court asked “[s]o then everybody has the [Child’s first name] and the
[Paternal Name] in their name,” and Father testified “[r]ight, so that it was not
only special to me but special to other family members, and to [Child] himself.”
Id. at 274.
[6] Mother testified that Child’s last name on his birth certificate is Maternal
Name, that Child had been raised with Maternal Name and had started to say
his name using his Maternal Name, and that she “had him baptized when he
was two months old as [having the Maternal Name] and the Catholic belief is
once you are baptized with a name, you cannot be re-baptized.” Id. at 277.
Mother testified that she had heard Father and his family refer to Child using
Paternal Name numerous times and that mail from Father’s family referred to
Paternal Name. When asked why she believed it was in Child’s best interest to
continue to maintain the name of Maternal Name, Mother testified that Child
had been baptized and raised with Maternal Name, that he would be starting
school in two to three years, that all his cousins know him with the name of
Maternal Name, and that her last name “and her brother’s is the only [Maternal
Name], but it is no different than any other child out there that have separated
parents.” Id. at 282. When asked if she believed that, as long as she was the
custodial parent, Child ought to bear the last name of his mother, Mother
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testified affirmatively and that “[i]t would be easier for medical purposes, and
when he gets signed up for schooling and things like that.” Id.
[7] On June 25, 2014, the court entered a final order addressing Child’s last name,
parenting time, and child support. The court ordered that Mother and Father
have joint legal custody, that Father pay $177 per week for current child
support, and that Father have certain parenting time as set forth in the order.
With respect to the issue of arrearage, the court stated in Paragraph 48:
“Mother did not present evidence of Father having retro-active child support
arrears. It is the Court’s determination that Mother accepted all the gifts on
Father’s behalf to settle any retro-active child support arrears.” Appellant’s
Appendix at 27. With respect to Child’s name, the order provided:
55. The Court has carefully considered the evidence presented, and
related Indiana case law and the demeanors of Mother and Father as
well as their credibility. In addition, the Court has carefully
considered the best interest of the child for a surname change.
56. Father was present at the hospital when the child was born. Father
wanted to sign the paternity affidavit but he was unsuccessful at
getting Mother’s permission.
57. Father testified that the [Paternal Name] surname has a family
history.
58. The child has been baptized in the Catholic faith with the surname
of [Maternal Name] at two (2) months old.
59. Father asserts it is in the best interest for the child to have his
surname, because this child should not be excluded from the family
heritage of the surname of [Paternal Name] that was demonstrated
through the overall testimony. Father further asserted that it is special
for all relatives of the [Paternal Name] family heritage to have the
name [Child’s first name] and [Paternal Name]. Father does not want
to have the conversation later to the child why he does not have his
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Father’s surname like other boys of his age. All relatives in Father’s
family have a part of their life heritage to have the [Paternal Name]
surname.
60. Father feels it is important for his son to not be confused with other
kids that have their Father’s surname.
61. Father further testified that the child having his surname would
help connect him with his half sibling on Father’s side.
62. The child at this time does not have any siblings on Mother’s side
of the family with the surname “[Maternal Name].” The child has a
younger biological sibling with Father that has the surname of
[Paternal Name].
63. Father has met his burden in the best interest of the child to carry
his surname of [Paternal Name].
64. The Court notes that the child is currently two (2) years old and
almost three (3) at the time of this order. There was no evidence
presented that the child could not learn his new surname of “[Paternal
Name].” Notwithstanding this was not a burden for Mother to present
to the Court.
Id. at 28-29. The court granted Father’s request that Child’s last name be
changed to Paternal Name.
Discussion
[8] The issue is whether the trial court abused its discretion in granting Father’s
request to change the last name of Child to Paternal Name and in not entering a
child support arrearage. With respect to the court’s ruling as to Child’s name,
Mother asserts that the court relied upon improper factors in granting Father’s
name change request. She argues that family heritage is not an appropriate
factor and is irrelevant to the best interest of Child, that the assumption that
other children the age of Child will all have their fathers’ surnames is not
enumerated as one of the factors considered by this Court, and this is likely
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because the assumption does not hold true, and that the strength of a
relationship between siblings has nothing to do with whether they share the
same last name. Mother also argues that, given that Child was baptized in the
Catholic faith under the Maternal Name and cannot be re-baptized, that Child
has started saying his name using Maternal Name, and that Mother carries
health insurance on Child and the medical records are all under the name of
Maternal Name, the court erred in granting Father’s request to change Child’s
name.
[9] Father maintains that the court’s findings and order are supported by evidence
that his requested name change is in the best interest of Child. He notes that he
presented evidence that the Paternal Name will connect Child to his family
heritage and half-sibling and is special to the father-son relationship, that he
asserted paternity and first sought a name change approximately one month
after Child was born, and that he has exercised parenting time, paid child
support, and has joint legal custody. Father argues that Mother asks this court
to reweigh the evidence and that he has shown that having the surname of
Paternal Name will connect Child, not only to his noncustodial parent, but to
his family heritage and half-sibling that bears the surname.
[10] 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. The trial court here entered
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findings of fact, and we may not set aside the trial court’s findings of fact unless
they are clearly erroneous. 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.
[11] “A child born out of wedlock shall be recorded . . . under the name of the
mother . . . .” Ind. Code § 16-37-2-13. “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).
[12] 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”).
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Id. We further indicated that, as observed in C.B. v. B.W., 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. v. B.W.,
985 N.E.2d 340, 348 (Ind. Ct. App. 2013), trans. denied).
[13] In C.B., this court 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 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 in that case 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.
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[14] The record reveals that, while Child was baptized as having the last name of
Maternal Name at two months of age, Father filed his petition seeking to
establish paternity approximately one month after the birth of Child and asked
the court to award him reasonable parenting time and order him to pay Mother
a reasonable amount of child support, and the court subsequently granted
Father visitation and ordered him to pay support in its September 2012
preliminary order. Father testified that Child’s first name and Paternal Name
were a part of his own name as well as the names of his brother, his father, and
his grandparent. The court also noted that Child at this time does not have any
siblings on Mother’s side of the family with the Maternal Name and that the
Child has a younger biological sibling with Father who has Paternal Name. In
addition, Father shares joint legal custody of Child, and Mother has primary
physical custody.
[15] In the exercise of its discretion, the trial court considered the totality of the
circumstances in determining what was in Child’s long-term best interest.
Based upon the factors discussed above and upon 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 that the father explained that
he had been trying to effect a name change almost since the child’s birth and
that 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
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change his child’s surname should have been granted); C.B., 985 N.E.2d at 347-
348 (observing that 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, all of which evidenced that his request to change
the child’s name was in the child’s best interest, and concluding that the father’s
surname would connect the child with his non-custodial parent, which is in the
child’s best interests).2
[16] With respect to the issue of a child support arrearage, Mother asserts that the
court incorrectly concluded that Father was not obligated to pay a support
arrearage. She argues that she did not present any additional evidence of
Father having a child support arrearage because Father admitted during his
testimony at the first evidentiary hearing that he owed just over seven thousand
dollars in child support arrearage and that, moreover, there was no evidence
presented regarding any gifts that she accepted on Father’s behalf in lieu of
child support. Father argues that, because Mother failed to present evidence to
2
In support of her position, Mother cites In re Paternity of M.O.B., 627 N.E.2d 1317 (Ind. Ct. App. 1994). In
that case, the father testified that his surname “was an honorable name that he would ‘truly like’ to have
carried on,” and the court ordered that the child assume the father’s surname. 627 N.E.2d at 1318-1319. On
appeal, we noted the evidence presented by the mother regarding the child’s name and, with respect to the
father’s reason for a name change, found that “[e]ssentially, [the f]ather presented evidence that it was in his
([the f]ather’s) best interests that [the child] assume the [father’s] surname,” but that the father “failed to
present any evidence that the name change was in the best interests of [the child].” Id. at 1319. In this case,
Father presented evidence, in addition to his testimony regarding his own wish, that it would be in Child’s
best interest for his last name to be Paternal Name, and we find M.O.B. to be distinguishable. See In re
Paternity of N.C.G., 994 N.E.2d at 336 (noting that the father testified that giving the child his surname would
cement the parental bond between himself as the noncustodial parent and the child, that this was unlike the
father in M.O.B., and that “[t]he distinction is that the latter has nothing to do with the child’s best interest,
but rather, concerns only the father’s interest”).
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the trial court concerning a support arrearage or to develop any argument to
this Court, she waived her claim. Specifically, he argues that Mother concedes
that she did not present any evidence of Father having a child support
arrearage, that his statement at the hearing that he owed support was elicited by
Father’s trial counsel and was presented in the context of explaining how he
reached his proposed child support payment, that at none of the hearings did
Mother assert that an arrearage was actually owed, and that there is no
evidence in the record supporting that Father owed or owes an arrearage apart
from Father’s statement.
[17] The court found in its order that “Mother did not present evidence of Father
having retro-active child support arrears” and that “[i]t is the Court’s
determination that Mother accepted all the gifts on Father’s behalf to settle any
retro-active child support arrears.” Appellant’s Appendix at 27. The record
reveals that, at the March 14, 2013 hearing, Father’s counsel called Father as a
witness and presented evidence of the weekly gross income of Father and
Mother for the purpose of calculating Father’s weekly child support obligation.
Father testified as to his regular employment earnings, his part-time earnings,
and Mother’s employment earnings, and he presented a child support
obligation worksheet. After Father’s worksheet was admitted into evidence, he
indicated in response to his counsel’s questions that an arrearage accumulated
prior to the preliminary hearing. When asked by his counsel if he knew the
amount of the arrearage, Father testified: “The better; just over seven thousand
dollars, I believe.” Transcript at 45. Father then indicated that he understood
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he had to work on the reduction of the arrearage. When asked, “[o]n top of
what you are suggesting as being an appropriate child support amount of one
hundred and sixty seven, are you willing to pay an additional twenty dollars per
week toward the; that would go towards the reduction of that arrearage,”
Father answered “Yes.” Id.
[18] Mother does not point to the record to show evidence of an order to pay child
support that existed prior to the court’s Preliminary Agreed Order of August 15,
2012 Hearing. Additionally, the August 15, 2012 order makes no reference to a
child support arrearage having accumulated as of that date. Further, Mother
does not point to the record to show that she presented any evidence of Father
having a child support arrearage or the amount of any such arrearage, and in
fact she acknowledges on appeal that she did not present any such evidence.
Moreover, she did not request the court to make a determination of the amount
of any arrearage. See Ind. Code § 31-16-12-3 (providing that the court, upon
request of a person or an agency, may issue an order that contains a
determination of the amount of child support arrearage due). We cannot say
the court erred in finding that Mother did not present evidence of Father having
a child support arrearage, and in therefore finding no arrearage.
Conclusion
[19] For the foregoing reasons, we affirm the court’s June 25, 2014 final order.
[20] Affirmed.
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Crone, J., and Pyle, J., concur.
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