In Re: the Paternity of: N.C.G., B.G. v. N.G. , 2013 Ind. App. LEXIS 450 ( 2013 )

Sep 19 2013, 5:33 am
FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
THOMAS C. ALLEN SARA L. SEIBERT
Fort Wayne, Indiana Eberhard & Weimer, P.C.
Angola, Indiana
IN THE
COURT OF APPEALS OF INDIANA
IN RE: THE PATERNITY OF: )
N.C.G. )
)
B.G., )
)
Appellant-Respondent, )
)
vs. ) No. 02A04-1301-JP-21
)
N.G., )
)
Appellee-Petitioner. )
APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable Eve S. Scott, Judge Pro Tem
Cause No. 02D07-1006-JP-381
September 19, 2013
OPINION – FOR PUBLICATION
BAKER, Judge
In the instant case, after appellant-respondent B.G. (Father) established paternity
over his son, he and appellee-petitioner N.G. (Mother), through mediation, agreed on
almost every issue except N.C.G.’s surname, which was fervently contested. The issue of
N.C.G.’s surname was deferred until Father filed a verified petition to change his name.
After a hearing on the petition, the trial court entered findings of fact, essentially
determining that the parents were in equipoise but denying Father’s petition because the
child had been known by Mother’s surname for about two and one-half years, which was
the approximate time that the issue had been under some form of mediation between the
contentious parties.
An examination of our evolving caselaw indicates that so long as a father pays
child support, exercises parenting time, and actively participates in the child’s life, then
the best interests of the child may be served by giving the child the father’s surname to
reinforce the bond between father and his nonmarital child, particularly if father is the
noncustodial parent. Because Father has paid child support, exercised parenting time,
actively participated in N.C.G’s life, and demonstrated that he wants his son to have his
name to solidify the bond that Father has with his noncustodial son, we reverse the
judgment of the trial court.
FACTS
N.C.G. was born on May 13, 2010. At the time of N.C.G.’s birth, he was given
Mother’s surname. On August 3, 2010, the trial court issued an order establishing
Father’s paternity. In the order, Mother was granted sole legal custody and primary
2
physical custody of N.C.G., and Father was ordered to pay $155 per week in child
support. Father was granted visitation to be supervised by a third party. Father and
Mother were ordered to attend mediation for all other issues.
On September 23, 2010, Mother and Father attended mediation and submitted a
proposed agreement to the trial court. This agreement was made an order of the trial
court on October 27, 2010. Under the agreement, Mother retained sole legal custody of
N.C.G. and Father was granted parenting time pursuant to the Indiana Parenting
Guidelines with the following limitations:
(a) Father shall immediately enroll in a parenting class for infant care.
Upon completion, he shall provide the Court and Mother with a copy of
his certificate of completion.
(b) Father shall insure he has the items needed for an infant including, but
not limited to, a crib, mattress, car seat, toys, and high chair. Father
shall provide Mother with a picture of said items within 10 days of the
date of this agreement.
(c) Until such time as Father completes his parenting class, his parenting
time shall be each Monday and Wednesday from 5:30 p.m. to 8:30 p.m.
at the home of Mother which shall be supervised by the maternal
grandmother . . . and each Sunday from 5:00 p.m. to 8:00 p.m. The
Sunday parenting time shall not be supervised and will take place
outside Mother’s home. Father’s parenting time shall not be supervised
after he completes his parenting class.
(d) The above schedule will continue until the child is one (1) year old. At
one (1) year Father shall have one (1) overnight per week on one of his
scheduled days.
Appellant’s App. p. 14.
3
Father’s child support was modified to $120 per week effective September 24,
2010, and he was ordered to provide health insurance for the child. Father was also
ordered to pay 61% of the uninsured medical expenses. The determination of N.C.G.’s
surname was deferred.
On May 29, 2012, Father filed his verified petition for change of name of minor
child. On September 17, 2012, Mother filed a verified petition for contempt for
nonpayment of uninsured medical expenses.
On December 14, 2012, the trial court held a hearing on Father’s petition for
change of name. At the beginning of the hearing, Father was served in open court with
Mother’s petition for contempt along with copies of medical bills allegedly owed by
Father. A hearing on Mother’s petition was scheduled for February 11, 2012.
During the hearing, Father testified that he had been paying child support and
visiting with N.C.G. Tr. p. 8. Additionally, Father stated that he wanted N.C.G. to have
his surname because it would “help cement in [N.C.G’s] mind who his biological father
is.” Id.
Mother testified that because she had “full and physical custody,” of the child, she
thought that the child’s surname should remain the same. Id. The trial court then asked
if N.C.G.’s name was the name that he was given in the hospital, to which Mother replied
that it was. Father explained that there were questions surrounding the child’s paternity
and that he had been waiting on the results of a DNA test before establishing paternity.
Id. at 9.
4
Further, Father explained that he had been trying to work with Mother for the past
two years to get N.C.G.’s name changed but that the relationship was very contentious.
Instead of refuting this claim, Mother immediately tried to negate Father’s attempt to
establish that he is involved in the child’s life. She pointed out that Father had gotten
married and had not requested the child’s presence at the wedding.
After hearing testimony from Mother and Father, the trial court observed that
I totally understand the father’s position regarding wanting his first-born
son to carry his name. However, I think in light of the fact that I need to
look at it for what’s best for the child, not what’s best for you or the
mother, and since the child is 2 and a half years old and has gone by the
name [N.C.G.], I think I’m going to deny, I’m going to deny the Petition
for Change of Name and leave his name as [N.C.G.]
Tr. p. 12.
In the trial court’s written order, it made the following findings:
C. The Court finds that the minor child is Father’s first-born and only son.
D. The Court finds that Father has been paying child support since 2010.
E. The Court finds that Father has exercised regular parenting time with the
minor child.
F. The Court finds that the minor child is two (2) years of age and is
Mother’s first born and her only son.
G. The Court finds that Mother is not in agreement that the minor child’s
surname be changed.
Appellant’s App. p. 11.
As in open court, the trial court denied Father’s petition in the written order.
Father now appeals.
5
DISCUSSION AND DECISION
Father’s sole argument on appeal is that although “the court’s findings of fact were
adequately supported by evidence[,] . . . the conclusions derived from the findings of fact
are clearly erroneous” such that the trial court erred by not changing N.C.G.’s name.
Appellant’s Br. p. 6. 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 M.O.B., 627 N.E.2d 1317, 1318 (Ind. Ct. App. 1994). An abuse of discretion
occurs when the decision is clearly against the logic and effect of the facts and
circumstances before the court. In re Paternity of Tibbitts, 668 N.E.2d 1266, 1268 (Ind.
Ct. App. 1997). Additionally, a biological father seeking to change the name of a non-
marital child has the burden of persuading the court that the change is in the best interests
of the child. M.O.B., 627 N.E.2d at 1318.
Here, the trial court entered findings of fact pursuant to Trial Rule 52(A), which
we may not set aside unless they are clearly erroneous. Menard, Inc. v. Dage-MTI, Inc.,
726 N.E.2d 1206, 1210 (Ind. 2000). Findings of fact are clearly erroneous when the
record contains no evidence to support them directly or indirectly. Quillen v. Quillen,
671 N.E.2d 98, 102 (Ind. 1996). 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.Indiana Code section 16-37-2-13 provides, in relevant part, that “[a] child born out
of wedlock shall be recorded . . . under the name of the mother.” Nevertheless, “a
6
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.”
MOB, 627 N.E.2d at 1318.
In M.O.B., paternity was established when the child was about five months old,
but a hearing was not scheduled until one year later on the contested issue of the child’s
surname. 627 N.E.2d at 1318. The mother presented evidence that United States Savings
Bonds, health insurance coverage, and a social security card had all been obtained under
her surname. Id. at 1319. The mother also stated that the child was identified in the
community, by his family, and by certain organizations by her surname. Id. Finally, the
mother asserted that she would be the parent to enroll him in school and obtain medical
treatment on his behalf and a written recommendation from a doctor stated that the child
should retain the mother’s surname. Id.
The father, on the other hand, testified that the child was his only son and that his
surname was an honorable one that he truly wanted to have carried on. Id. On appeal, a
panel of this Court concluded:
Father clearly failed to sustain his burden of persuasion that a name change
was in the best interests of M.O.B. Therefore, the trial court abused its
discretion as a matter of law when it erroneously ordered that M.O.B.
assume Father’s surname.
Id. at 1319. Thus, the M.O.B. Panel reversed the trial court’s order changing the child’s
name to Father’s surname. Id.
7
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”); 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”).
This Court has noted that this is conduct that society wants to encourage.
Peterson, 871 N.E.2d at 1029. More particularly, The Petersen Panel reasoned that as
applied to that case, the father’s testimony reflected his belief that his son would feel a
greater connection to him as his father by sharing his name. Id. at 1031. Thus, the panel
affirmed the trial court’s decision to change the child’s surname to that of the father. Id.In the instant case, even though N.C.G. was given Mother’s name at the hospital,
Father explained that he had been trying to effect a name change almost since the child’s
birth. Tr. p. 11. Likewise, although the trial court reasoned that N.C.G. had been using
his mother’s surname for over two years, it also recognized that the issue of the child’s
surname had to be taken through a lengthy mediation process. Tr. p. 7. These facts
8
highlight the contentious relationship between Father and Mother rather than the best
interests of the child.
Furthermore, Father testified that giving N.C.G. his surname would cement the
parental bond between himself, as the noncustodial parent, and the child. Tr. p. 8. This
is unlike the father in M.O.B. who merely wanted to change his child’s surname because
it was an honorable one that he wanted to pass on. 627 N.E.2d at 1319. The distinction
is that the latter has nothing to do with the child’s best interest, but rather, concerns only
the father’s interest. Id.
Similarly, as observed in C.B., having a father’s surname under circumstances
such as those presented in the instant case is in a child’s best interest because it is a
tangible reminder that the child has two parents. 985 N.E.2d at 348. This is particularly
true when the father is the noncustodial parent. Id. Accordingly, we conclude that the
trial court erred by not granting Father’s petition to change N.C.G.’s surname. Thus, we
reverse the trial court’s order and remand with instructions to the trial court to enter an
order changing N.C.G’s surname to Father’s surname.
The judgment of the trial court is reversed.
FRIEDLANDER, J., and VAIDIK, J., concur.
9