Matter of Handford ( 1990 )

No. 90-130
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990
IN RE THE MATTER OF JOSEPH HANDFORD, nka
ERNEST MICHAEL HANDFORD, Natural Father and
-vs-
ROBERTA M. ANDERSON, Natural Mother and Respondent,
and
DEPARTMENT OF REVENUE, Interested Party.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Joel G. Roth, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Brett C. Asselstine, Great Falls, Montana
For Respondent:
Debra J. Upton, Montana Legal Services and John
Koch, Child Support Enforcement Division, Great
Falls, Montana
Submitted: October 26, 1990
Decided: November 15, 1990
Filed:
Clerk
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Justice John C. Sheehy delivered the Opinion of the Court.
The natural mother, Roberta M. Anderson, filed a motion to
allow her minor child, Joseph Anderson, to retain Anderson as his
surname. A hearing on the matter was held and on January 4, 1990,
the District Court for the Eighth Judicial District, Cascade
County, granted Anderson's motion. The natural father, Ernest
Michael Handford appeals the District Court's order. We affirm.
Anderson and Handford have entered into a stipulation
concerning paternity, visitation, and child support. The sole
issue in dispute is the last name of the minor child, Joseph
Anderson.
In 1987, the parties were planning on marrying, but
unfortunately the wedding was cancelled. Soon thereafter, Anderson
informed Handford that she was pregnant. Handford suggested an
abortion. Anderson disregarded Handford's advice, and the child
was born on May 20, 1988. Anderson gave Joseph her surname.
The record reveals Handford failed to pay any of Anderson's
and Joseph's medical expenses. Handford provided no child support
and Anderson was forced to apply for AFDC. Handford had no contact
with the child until he was reached by the Department of Revenue,
Child Enforcement Bureau, in 1989 for collection of child support.
In the past, this Court has held that "in contested cases when
one parent seeks to change his or her child's name, the court shall
determine whether the best interest of the child will be served."
In re Marriage of Firman (1980), 187 Mont. 465, 470, 610 P.2d 178,
181; In re the Marriage of Overton (1983), 207 Mont. 292, 295, 674
2
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P.2d 1089, 1091; Matter of Iverson (Mont. 1990), 786 P.2d 1, 13,
47 St.Rep. 146, 147. The District Court's decision regarding the
best interest of the cild will not be overturned on appeal unless
there is a clear abuse of discretion. Iverson, 786 P.2d at 2.
Handford claims it is in Joseph's best interest to adopt the
surname Handford. Handford argues that the surname of Handford
would encourage his son to get to know the paternal side of his
heritage. Handford also contends that the District Court created
an unnatural barrier between him and his son by allowing the child
to retain the surname Anderson. We disagree with Handford, and we
affirm the District Court's reasoning set forth in its Order:
It is in the best interests of the minor child to retain
the last name of Anderson. The petitioner-father showed
little interest in the child prior to being forced to
live up to his paternal obligations by the Department of
Revenue. The child will be living with the mother and
it will benefit and ease the child's social functioning
to maintain the mother's last name. This Court does not
believe that an artificial barrier will be created
between the child and the father by the child retaining
the mother's last name. The obligation to pay child
support does not automatically entitle the father to have
the child's last name changed to the father's last
name.
In the circumstances here, the mother should have the
privilege of giving the child her surname.
Affirmed. Let remittitur issue forthwith. See Rules 34 and
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1988 Internal Operating Rules, this decision shall not be cited as
precedent and shall be published by its filing as a public document
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with the Clerk of the Supreme Court and by a report of its result
to Montana Law Week, State Reporter and West Publishing Company.
Justice
We Concur: A
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