In re Change of Name of Bryan C. & Tyler C. ( 2023 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/31/2023 09:08 AM CDT
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IN RE CHANGE OF NAME OF BRYAN C. & TYLER C.
Cite as 32 Neb. App. 335In re Change of Name of Bryan C. and Tyler C.,
children under 18 years of age.
Kayla C., appellant, v.
Phillip C., appellee.
___ N.W.2d ___
Filed October 24, 2023. Nos. A-22-878, A-22-879.
1. Minors: Names: Appeal and Error. An appellate court reviews a trial
court’s decision concerning a requested change in the surname of a
minor de novo on the record and reaches a conclusion independent of
the findings of the trial court. Provided, however, that where credible
evidence is in conflict on a material issue of fact, the appellate court
considers and gives weight to the fact that the trial judge heard and
observed the witnesses and accepted one version of the facts rather
than another.
2. Minors: Names. The question of whether the name of a minor child
should be changed is determined by what is in the best interests of
the child.
3. Minors: Names: Proof. The party seeking the change in surname of a
minor child has the burden of proving that the change in surname is in
the child’s best interests.
4. Minors: Names. A court considering whether a name change is in the
child’s best interests will grant a name change only when the substantial
welfare of the child requires the surname to be changed.
5. ____: ____. Nonexclusive factors to consider in determining whether a
change of surname is in a child’s best interests include (1) misconduct
by one of the child’s parents; (2) a parent’s failure to support the child;
(3) parental failure to maintain contact with the child; (4) the length of
time that a surname has been used for or by the child; (5) whether the
child’s surname is different from the surname of the child’s custodial
parent; (6) a child’s reasonable preference for one of the surnames;
(7) the effect of the change of the child’s surname on the preserva-
tion and development of the child’s relationship with each parent; (8)
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IN RE CHANGE OF NAME OF BRYAN C. & TYLER C.
Cite as 32 Neb. App. 335the degree of community respect associated with the child’s present
surname and the proposed surname; (9) the difficulties, harassment, or
embarrassment that the child may experience from bearing the present
or proposed surname; and (10) the identification of the child as a part
of a family unit.
6. ____: ____. In cases where a party requests to change the surname of
a minor child, the best interests analysis is not a mechanical process
and the court must determine how much weight should be accorded to
each factor.
Appeals from the District Court for Scotts Bluff County:
Leo P. Dobrovolny, Judge. Affirmed.
Audrey M. Long, of A. Elliott Law, P.C., L.L.O., for
appellant.
No appearance by appellee.
Pirtle, Chief Judge, and Moore and Arterburn, Judges.
Arterburn, Judge.
INTRODUCTION
Kayla C., mother of Bryan C. and Tyler C., filed two peti-
tions seeking to change Bryan’s and Tyler’s surname from
their father’s surname to her maiden surname, Fry. Phillip C.,
the boys’ biological father, filed objections to the petitions.
The district court for Scotts Bluff County denied the requested
name changes. Based on the reasons that follow, we affirm.
BACKGROUND
Bryan and Tyler were both given Phillip’s surname at birth.
In May 2009, when Bryan was 2 years old and Tyler was 1 year
old, Phillip and Kayla divorced. Pursuant to an agreed-upon
decree of dissolution, Kayla was awarded legal and physical
custody of the boys. The parties further agreed that parenting
time with Phillip would take place as mutually agreed by the
parties. Bryan and Tyler have remained in Kayla’s custody at
all times since the decree was placed into effect.
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Cite as 32 Neb. App. 335In February 2010, pursuant to an agreed-upon order of
modification, Phillip was granted weekend and holiday parent-
ing time with Bryan and Tyler, contingent on his participation
in therapy with the boys. Phillip, Bryan, and Tyler successfully
completed a therapy program around March or April 2011.
As a result, the modified parenting time schedule was placed
into effect. Pursuant to the recommendation of the therapist,
Phillip and Kayla also agreed that in addition to the court-
ordered parenting time, Phillip should have parenting time
every Wednesday evening. However, Phillip’s parenting time
was inconsistent due to Tyler’s medical issues. Kayla did not
feel comfortable leaving Tyler in Phillip’s care, and she testi-
fied that Phillip did not take an interest in Tyler’s reoccurring
medical issues.
In 2012, the licensed psychologist who oversaw Phillip’s
therapy reported that Phillip “was a cooperative and willing
participant and willing to do what was necessary to be involved
in his children’s lives and have the [strongest] relationship
possible. He not only professed his love for his children, but
worked to put that love into meaningful action.” The record
suggests that parenting time between Phillip and the boys con-
tinued, albeit sporadically, for the next 4 years.
Around 2016, Tyler began refusing to visit Phillip because
of events he found to be traumatic that had taken place when
he was with Phillip. Kayla stopped overnight visits with Phillip
after she learned that Phillip had shoved his girlfriend in
an incident where Phillip had become angry with the boys.
The girlfriend was shoved when she had sought to intervene
between Phillip and the boys. All these events occurred in the
presence of both Bryan and Tyler. Kayla wanted to scale back
to daytime visits to help the boys reacclimate to Phillip and
become less fearful of staying in his home. Bryan and Tyler
never resumed overnight visits.
Beginning with this same timeframe, Kayla allowed the
boys to decide when to see Phillip. She testified that the boys’
therapist recommended giving them a choice in whether to
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IN RE CHANGE OF NAME OF BRYAN C. & TYLER C.
Cite as 32 Neb. App. 335attend visits with Phillip and that forcing them to attend visits
against their will was traumatizing for them. They would hide
under the bed, refuse to come out of the house, refuse to get
out of the car, and ultimately refuse to visit Phillip. Kayla also
testified that Phillip would get upset at their refusals, which in
turn made the boys more upset.
Phillip testified that beginning in late 2015 or early 2016,
he would show up for custody exchanges and neither Kayla
nor the boys would arrive at the designated exchange meeting
place. He further testified that he did not receive any texts,
emails, or notifications about these canceled visits beforehand.
Phillip said that sometimes Kayla would tell him after the fact
that the boys were sick or had a function to attend, but that
other times, she never responded to his inquiries about the
boys’ absence. Eventually, Phillip also stopped going to the
designated exchange location for the Wednesday and weekend
visit exchanges, because the boys had not attended a visit with
him in months and he inferred that the boys were no longer
participating in visits. He has had only occasional contact with
Bryan and Tyler since 2016.
In June 2022, Kayla filed two petitions seeking to change
Bryan’s and Tyler’s surname from Phillip’s surname to her
maiden surname, Fry. When she filed them, her legal surname
was still Phillip’s surname. Phillip filed objections to the name
changes. The cases were consolidated on the district court’s
docket, and trial was held in August 2022.
At the time of trial, Bryan was 16 years old and a junior
in high school. Bryan testified that every few months, Kayla
encouraged him to have a relationship with Phillip and
reminded him that he could visit Phillip whenever he wanted.
However, Bryan stated that he does not visit often with Phillip
and that when he does, it does not go well. He elaborated that
during visits, Phillip talked about Kayla disparagingly, saying
she was out getting drunk. Tyler stopped going to visits first,
and Bryan stopped going shortly thereafter. Bryan described
his relationship with Phillip as “not very good.” He said
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Cite as 32 Neb. App. 335Phillip texted him from time to time, but rarely called him.
Phillip was the one to initiate conversations and would regu-
larly reach out around holidays and birthdays.
Bryan is involved in football, wrestling, and golf and has
participated in other sports in the past. He testified that while
Kayla and her relatives attend his games, Phillip does not.
Bryan said Phillip’s absence makes him frustrated, sad, and
disappointed. In addition, Phillip did not attend any of Bryan’s
medical appointments related to his recent wrist surgery.
Bryan testified he wanted to change his surname to Fry.
He stated he and Tyler came up with this idea together. Bryan
desired this name change, in part, because of Phillip’s past
abuse of women, including Kayla. Bryan recalled Phillip’s
pushing Kayla down the stairs and destroying doors when
he was angry with her. He also recalled a Thanksgiving with
Phillip where he asked to go home and Phillip became angry;
Phillip’s girlfriend intervened, and Phillip shoved her. Further,
Bryan testified that Phillip would often tell him and Tyler that
Kayla did not care for them, was trying to take them from
Phillip, was getting drunk, and did not love them. Bryan also
wanted a name change because of Phillip’s absence in his
life and Phillip’s failure to support him. Bryan testified that
he believes Phillip does not care about him or Tyler and that
Phillip only tries to have relationships with his daughters.
As for positive reasons to change his surname to Fry, Bryan
explained he has a very good relationship with his mater-
nal grandfather, Fletcher Fry. Fletcher has taken him fishing,
taught him how to play poker, and regularly spends time with
him when he is having a bad day. Bryan described Fletcher as
his hero and the father figure in his life.
Bryan further testified, “I feel that I am a Fry.” For the past
couple of years, he had used the Fry surname in sports activi-
ties and requested that it be put on his uniforms. Bryan testi-
fied that while he prefers that people address him as “Bryan
Fry,” he uses Phillip’s surname on assignments at school
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Cite as 32 Neb. App. 335because it is mandatory. He also uses Phillip’s surname on his
driver’s license, bank accounts, and Social Security card.
Tyler had just turned 15 years old at the time of trial and
was a freshman in high school. Like Bryan, Tyler testified that
Kayla offered to arrange visits with Phillip, but he stated he
did not take her up on those offers. He explained that he does
not want to see Phillip and does not view Phillip as his father;
he sees him only as his biological father, since Phillip did not
raise him.
Tyler does not have a good relationship with Phillip. He
admits that his relationship with Phillip is more strained than
the relationship between Bryan and Phillip. Tyler blocked
Phillip’s number on his phone because Tyler does not want to
have contact with him whatsoever. Tyler described Phillip as
unstable and a bad influence. Tyler testified that Phillip told
him and Bryan that Kayla was a “horrible woman,” that she
was trying to take them away from him, that she was out get-
ting drunk, and that she was a “whore.” Tyler could not recall
experiencing any fun events with Phillip. Further, Tyler stated
Phillip has never been there for him.
Tyler has had ongoing medical issues since he was a young
child. In addition to frequent doctor visits, his ailments have
resulted in several surgeries. Most recently, in April 2022,
Tyler had a hip surgery. He did not recall Phillip’s attending
any of his medical appointments. Additionally, Tyler plays
football and has also played basketball and been involved in
wrestling and track in the past. He did not recall Phillip’s ever
attending one of his games.
Tyler testified that his maternal relatives, including Fletcher,
his grandmother, and his uncles, made up his family and sup-
port system. Tyler has a very good relationship with Fletcher.
Tyler testified he began desiring a name change about 6 years
before the trial, when he realized he did not share Fletcher’s
surname. He wanted his name to match Fletcher’s because
Fletcher is his “favorite person,” Fletcher helped raise him,
and he wants to honor Fletcher. Tyler already uses the Fry
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Cite as 32 Neb. App. 335surname in sports settings. However, Tyler acknowledged that
his legal surname is Phillip’s surname and that he uses that
name on documents, school report cards, tests, his learner’s
permit, and bank accounts.
Given their estranged relationship, Tyler did not want to
maintain Phillip’s surname. Tyler testified that he does not
want a relationship with Phillip, that there is no rebuilding
the broken bridge between them, and that he does not want
Phillip involved in his life. Tyler also admitted that his rela-
tionship with his half sister Taylor C. has suffered in part
because she has attempted “to push [Phillip] on” him.
Fletcher confirmed at trial that he has been heavily involved
in the boys’ lives and described himself as one of their caretak-
ers. He sees them frequently, teaches them right from wrong,
mediates their disagreements, and attends as many of their
sports games as he is able. He has no opposition to Bryan’s and
Tyler’s adopting his surname.
Kayla also supports Bryan’s and Tyler’s desire to change
their surname to Fry. She testified she believes they are mature
for their ages and that their reasoning is reasonable. Further,
she testified that they have desired these name changes for
years prior to her instituting these legal proceedings.
Kayla assumed only minimal responsibility for the current
relationship status between Phillip and the boys. She con-
firmed that Phillip was almost current on his child support
as it related to Bryan and Tyler. However, she testified that
he still owed her a significant amount of money for medical
reimbursements. She also testified that while the boys have not
been harassed for sharing Phillip’s surname, they do feel upset
when people discover their surname. The boys have received
compliments directed at Phillip or their paternal grandmother
when people learn their surname. Because the boys do not
share these sentiments as to Phillip and his family, these com-
ments upset them.
At the time of trial, Kayla was engaged to Timothy Milton
(Timothy). Although her surname was still the married name
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Cite as 32 Neb. App. 335she shared with Phillip, she said that everyone called her
Kayla Fry and that her name on social media included both
Fry and Phillip’s surname. Kayla testified that when she mar-
ried Timothy, she would “probably” hyphenate her name as
follows: “Kayla Fry[-]Milton.” Timothy, however, testified that
Kayla would change her surname to Milton when they married.
On cross-examination, Kayla also admitted that if the name
changes happened on the day of the trial, Bryan and Tyler
would have different surnames from both parents.
Phillip does not believe it is in Bryan’s or Tyler’s best inter-
ests to change their surname to Fry. He believes that Tyler is
the driving force behind the requests to do so and that Tyler
is making this decision based on his emotions, rather than on
rational reasoning. He objects to the name changes because
he wants to reestablish his relationship with the boys and be a
father figure for them. Additionally, to his knowledge, there is
nothing in his past that would cause Bryan or Tyler to suffer
embarrassment or harassment because they share his surname.
At trial, Phillip admitted that his communication with
Kayla is not ideal. He also admitted there were changes he
could make to have a better relationship with Bryan and
Tyler. Phillip acknowledged he failed to maintain consistent
contact with Bryan and Tyler over the years. Before trial,
Phillip’s last physical contact with the boys occurred in
March 2022. At that time, Bryan agreed to attend two din-
ners and Tyler agreed to attend one dinner at restaurants with
Phillip and their two half sisters. Phillip testified that he has
respected Bryan’s and Tyler’s wishes not to see him over the
last several years because he felt that pressuring them for
parenting time would cause more damage rather than improve
their relationship.
Phillip also acknowledged that he was behind on reimburse-
ment payments for Bryan’s and Tyler’s medical, dental, and
vision expenses. He noted, however, that even though he is not
required to help pay for the boys’ extracurricular activities, he
contributes to those expenses.
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Cite as 32 Neb. App. 335Phillip testified that he was not worried about any negative
impact on his relationship with the boys if the name changes
were granted. Nevertheless, Phillip was concerned that the
name changes would negatively impact Bryan’s and Tyler’s
relationships with their half sisters. Phillip explained that the
half sisters, his daughters Taylor and Jordynn C., were not
happy that Bryan and Tyler wanted different surnames.
After taking the case under advisement, the district court
entered an order in November 2022 denying Kayla’s petition
to change Bryan’s and Tyler’s surname. The court found that
although the boys’ preferences for a name change were reason-
able, the evidence as a whole did not show that a name change
was in their best interests. The court further found that the
evidence failed to show a name change was necessary for the
substantial welfare of either minor child. Kayla now appeals.
ASSIGNMENTS OF ERROR
Kayla asserts that the district court abused its discretion by
denying her request to change Bryan’s and Tyler’s surname
from Phillip’s surname to her maiden surname of Fry.
STANDARD OF REVIEW
[1] An appellate court reviews a trial court’s decision con-
cerning a requested change in the surname of a minor de novo
on the record and reaches a conclusion independent of the
findings of the trial court. In re Change of Name of Slingsby,
276 Neb. 114, 752 N.W.2d 564 (2008). Provided, however,
that where credible evidence is in conflict on a material issue
of fact, the appellate court considers and gives weight to the
fact that the trial judge heard and observed the witnesses and
accepted one version of the facts rather than another. Id.ANALYSIS
[2-4] The question of whether the name of a minor child
should be changed is determined by what is in the best inter-
ests of the child. State on behalf of Connor H. v. Blake G.,
289 Neb. 246, 856 N.W.2d 295 (2014); Westerhold v. Dutton,
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Cite as 32 Neb. App. 33528 Neb. App. 17, 938 N.W.2d 876 (2020). The party seek-
ing the change in surname has the burden of proving that the
change in surname is in the child’s best interests. Westerhold v.
Dutton, supra. Cases considering this question have granted a
change only when the substantial welfare of the child requires
the surname to be changed. See id.
[5] The Nebraska Supreme Court has set forth a list of non-
exclusive factors to consider in determining whether a change
of surname is in the child’s best interests. See, In re Change of
Name of Slingsby, supra; In re Change of Name of Andrews,
235 Neb. 170, 454 N.W.2d 488 (1990). These factors are (1)
misconduct by one of the child’s parents; (2) a parent’s failure
to support the child; (3) parental failure to maintain contact
with the child; (4) the length of time that a surname has been
used for or by the child; (5) whether the child’s surname is
different from the surname of the child’s custodial parent; (6)
a child’s reasonable preference for one of the surnames; (7)
the effect of the change of the child’s surname on the preser-
vation and development of the child’s relationship with each
parent; (8) the degree of community respect associated with
the child’s present surname and the proposed surname; (9) the
difficulties, harassment, or embarrassment that the child may
experience from bearing the present or proposed surname; and
(10) the identification of the child as a part of a family unit.
See id.Applying these factors below, we find that Kayla did not
meet her burden of demonstrating that the substantial welfare
of the boys requires that their surname should be changed.
Thus, she has failed to show that changing the boys’ surname
to Fry is in their best interests.
Parental Misconduct
The district court found that Phillip has a history of
parental misconduct. We agree. Bryan testified that Phillip
was abusive to Kayla during their marriage. Bryan recalled
Phillip’s pushing Kayla down the stairs and destroying doors
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Cite as 32 Neb. App. 335when he was angry with her. He also recalled a Thanksgiving
where Phillip became angry and shoved his girlfriend. In
addition to the physical misconduct, the evidence showed that
Phillip also disparaged Kayla in the presence of the boys.
Bryan testified that Phillip would often tell him and Tyler that
Kayla did not care for them, that she was trying to take them
from Phillip, that she was getting drunk, and that she did not
love them. In the same vein, Tyler testified that Phillip told
him and Bryan that Kayla was a “horrible woman,” that she
was trying to take them away from him, that she was out get-
ting drunk, and that she was a “whore.”
Phillip also admitted that his communication with Kayla is
not ideal. After reviewing the text message exhibits, it appears
that at times, both Phillip and Kayla engaged in callous com-
munication with each other. However, we ultimately find this
factor cuts in favor of granting the name changes, as both
Bryan and Tyler have cited Phillip’s misconduct as a reason for
the desired name changes.
Parental Failure to Support Child
Kayla, as the custodial parent, has supported and provided
for the boys since their birth. At the time of the hearing, Phillip
was essentially current on his child support as it related to
Bryan and Tyler. The child support payment history received
into evidence demonstrated that Phillip had generally paid
child support in a timely fashion. Phillip admitted he was
behind on reimbursement payments for their medical expenses,
but asserted he also contributed to extracurricular expenses
that he was not court ordered to pay.
The district court found that while Phillip had a small
arrearage due, he was not delinquent. We agree. Although
Phillip had not fully satisfied his financial support obliga-
tions, particularly with relation to the boys’ medical expenses,
the evidence also shows he had provided some funding for
extracurricular activities when able. Therefore, given the
totality of the circumstances, we find that Kayla has not met
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cially support the boys.
Parental Failure to Maintain
Contact With Child
Phillip admits that he failed to maintain consistent contact
with Bryan and Tyler. However, for the past 6 years, Kayla has
permitted the boys to choose whether they see Phillip, which
has contributed to their attenuated relationship with him. At
trial, both Phillip and Kayla assumed some responsibility for
Phillip’s strained relationship with Bryan and Tyler.
Phillip communicates with Bryan through texting. Typically,
Phillip initiates conversations, and he regularly reaches out
around birthdays and holidays. Phillip is unable to communi-
cate directly with Tyler because Tyler blocked Phillip’s phone
number. Prior to the trial in August 2022, Phillip’s last physi-
cal contact with the boys occurred in March. Neither Bryan
nor Tyler recalled Phillip’s ever attending one of their medi-
cal appointments. The boys also testified that Phillip does not
attend their sporting events.
Bryan’s relationship with Phillip is better than Tyler’s rela-
tionship with Phillip, but both boys have reservations when it
comes to Phillip. These reservations largely arise from Phillip’s
misconduct as outlined above. The evidence shows Phillip
made efforts to address some of these issues soon after divorc-
ing Kayla.
In 2010 and 2011, Phillip participated in child-parent psy-
chotherapy with Bryan and Tyler to strengthen his relation-
ship with them and earn regular parenting time. After the
therapy concluded, the psychologist reported that Phillip “was
a cooperative and willing participant and willing to do what
was necessary to be involved in his children’s lives and have
the [strongest] relationship possible. He not only professed
his love for his children, but worked to put that love into
meaningful action.” Phillip testified that once he completed
these therapy sessions, parenting time occurred regularly
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Cite as 32 Neb. App. 335on Wednesdays and weekends, but stopped in late 2015 or
early 2016 when Kayla and the boys stopped appearing at the
designated exchange location. Further, Phillip has respected
Bryan’s and Tyler’s wishes not to see him over the past sev-
eral years because he felt that pressuring them for parenting
time would cause further damage to their relationship.
As the district court found, the evidence demonstrates that
Phillip has failed to maintain regular contact with the boys
and has been far from proactive in making any concerted
effort to reestablish a positive relationship with the boys. The
fault is not his alone, however. Kayla has allowed the boys
to choose when to see Phillip. Her efforts at encouraging
contact occurred sporadically and were not consistent. Tyler
has blocked Phillip’s phone number so that Phillip cannot
call him. And the tumultuous relationship between Phillip
and Kayla further divides Bryan and Tyler from Phillip.
Ultimately, based on the totality of the evidence, we find
that Phillip bears the greater blame for the lack of contact. In
recent years, he has not shown interest in the boys by attend-
ing their games or otherwise showing interest in their health,
education, or general well-being. Thus, while Kayla is not
blameless here, we find that this factor favors the allowance
of a name change.
Length of Time Surname
Has Been Used
Bryan and Tyler have used Phillip’s surname since birth.
They have also used the Fry surname in some public settings
in the past 2 years, including their sports activities. However,
Tyler acknowledged that his legal surname is Phillip’s and
that he used that name on documents, school report cards,
tests, his learner’s permit, and bank accounts. Bryan testified
that he prefers it when people address him as “Bryan Fry,”
but that he uses Phillip’s surname on assignments at school
because it is mandatory. He also uses Phillip’s surname on his
driver’s license, bank accounts, and Social Security card.
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Cite as 32 Neb. App. 335The district court ultimately found that although Bryan and
Tyler have recently opted to use the Fry surname in certain
settings, they have used Phillip’s surname since birth and
continued to use it at the time of trial. We agree with the
district court that this factor weighs against the petitions for
name change.
Whether Child’s Surname Is Different
From Surname of Custodial Parent
At the time of trial, Kayla was still using Phillip’s surname,
as demonstrated by her various filings in this case as well as
her trial testimony. Timothy, who was engaged to Kayla, testi-
fied that Kayla would change her surname to Milton when they
married. Alternatively, Kayla testified she would “probably”
hyphenate her name as follows: “Kayla Fry[-]Milton.” While
Timothy stated that the parties were considering a wedding
date the following spring, no specific date had been set.
The district court stated it would not be appropriate for it to
speculate as to whether Kayla would marry and what her name
would be after marriage. The court thus considered this issue
only in light of the parties’ surnames as of the time of trial. We
find that while the testimony regarding Kayla’s possible future
name change was likely sincere, it remained speculative. The
record clearly shows that at the time of trial, Kayla, as the cus-
todial parent, shared Phillip’s surname, as did Bryan and Tyler.
Therefore, this factor weighs in favor of denying the petitions
for name change.
Child’s Reasonable Preference
Bryan was 16 years old and Tyler was 15 years old at the
time of trial. Kayla stated that they had desired name changes
for years prior to her filing of the present actions. Bryan and
Tyler both testified that they preferred the Fry surname. The
district court found that their reasoning was quite similar and
could be boiled down into two main points. We agree and
reiterate those points here. For one, both boys have a strong
relationship with their maternal grandfather, Fletcher. Bryan
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favorite person. They both feel supported by Fletcher, see him
as a father figure, and want to honor him and the rest of the Fry
family with the requested name change.
The boys also want this name change because they want
to distance themselves from Phillip. Bryan explained that
Phillip’s abusive actions toward women and Phillip’s failure
to support him throughout his life had strained their relation-
ship. Tyler described Phillip as unstable and a bad influence.
Tyler also stated that Phillip has never been there for him and
that he could not recall any fun memories involving Phillip.
Simply put, Tyler does not want Phillip involved in his life.
We find these preferences reasonable, and thus, this factor
weighs in favor of granting the petitions for name change.
Effect on Preservation and Development of
Child’s Relationship With Each Parent
As the district court found, if Bryan and Tyler were granted
leave to change their surnames to Fry, their relationships with
Kayla would remain unchanged. Kayla has legal custody and
physical custody of both boys. The record reflects the boys
have, and will continue, close relationships with Kayla and her
side of the family. There was no evidence presented that this
name change would further enhance the boys’ relationships
with Kayla.
Predicting how Bryan’s and Tyler’s relationships with
Phillip would be affected is much more difficult. Bryan cur-
rently has a very strained relationship with Phillip. Tyler
wants no relationship with Phillip at all. Phillip testified that
he would like a closer relationship with the boys, but in the 5
years leading up to trial, he has only occasionally acted pro-
actively to establish contact. Moreover, he has shown little,
if any, interest in their health, activities, or day-to-day lives.
Allowing Bryan and Tyler to change their names may cause
them to identify even less with Phillip. Phillip, however, testi-
fied that he was not worried about any negative impact on his
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IN RE CHANGE OF NAME OF BRYAN C. & TYLER C.
Cite as 32 Neb. App. 335relationships with the boys if the name change were granted
and stated his intent to become more supportive by attending
the boys’ athletic events.
Alternatively, an argument can be made that denial of the
name change could cause further deterioration of the rela-
tionship between Phillip and the boys. Bryan and Tyler are
acutely aware that the only reason their names would not be
changed is that Phillip has opposed their petitions. When the
court asked Phillip why he was opposing the name change
petitions, his only statement was that he had not had a “fair
shot” over the last 6 to 7 years to “be [a] dad” to the boys.
Portions of the evidence support his view. The email and text
messages between Phillip and Kayla demonstrate a toxic rela-
tionship. Kayla gave the boys control of when they would see
Phillip and only occasionally reminded them that they could
do so. On the other hand, Phillip has done very little to attain
a more active role in the boys’ lives. Ultimately, we find it
telling that Phillip, in answering the court’s question, focused
on himself rather than the boys. He did not explain how their
best interests would be harmed by allowing them to change
their names. He solely focused on what he perceived to be
injustices to him.
Granting the name change could harm the relationship
between Phillip and the boys. Not granting the name change
may also harm that relationship. To some degree, this fac-
tor should weigh as neutral. However, to the degree that it
is Kayla’s burden to show that the relationships between the
children and each parent would not be negatively affected, that
burden has not been met.
Degree of Community Respect Associated
With Child’s Present Surname
and Proposed Surname
The district court found that there was no direct evidence
demonstrating the degree of community respect associated
with either Phillip’s surname or the Fry surname. We agree,
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IN RE CHANGE OF NAME OF BRYAN C. & TYLER C.
Cite as 32 Neb. App. 335and because Kayla had the burden in this case, we find this
factor weighs in favor of denying the name change.
Difficulties, Harassment, or Embarrassment
That Child May Experience From
Bearing Either Surname
The district court also found that there was no evidence
the boys would experience any difficulties, harassment, or
embarrassment if they adopted the Fry surname. We agree. As
for Phillip’s surname, Phillip testified that to his knowledge,
there is nothing in his past that would cause the boys to suffer
embarrassment or harassment because they share his surname.
Alternatively, Kayla testified that while the boys have not been
harassed, they have experienced some discomfort from bearing
Phillip’s surname. She testified that when some people learn
the boys’ surname, they tell them what a great father or pater-
nal grandmother they have. This upsets the boys because they
do not share these sentiments.
While the evidence shows the boys may experience some
discomfort from bearing Phillip’s surname, this discomfort is
not based on harassment from their peers or embarrassment in
the community. Thus, we find that Kayla has not met her bur-
den of proof on this factor.
Identification of Child as
Part of Family Unit
The district court found that a name change was not neces-
sary for the boys to identify with the Fry family, and we agree.
At the time of trial, Bryan and Tyler strongly identified with
the Fry family unit. Bryan testified, “I feel that I am a Fry,”
and Tyler testified that his extended maternal relatives, includ-
ing Fletcher, his grandmother, and his uncles, made up his
family, not Phillip.
On the other hand, the evidence suggests that shedding
Phillip’s surname could further distance the boys from his
family. Phillip was concerned that if the boys changed their
surnames, it would negatively impact their relationships with
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Nebraska Court of Appeals Advance Sheets
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IN RE CHANGE OF NAME OF BRYAN C. & TYLER C.
Cite as 32 Neb. App. 335their half sisters. He explained that the half sisters, Taylor and
Jordynn, were displeased that Bryan and Tyler wanted differ-
ent surnames. Tyler also mentioned that his relationship with
Taylor has suffered over the years in part because she has
attempted “to push [Phillip] on” him. We therefore find this
factor favors the boys’ retaining Phillip’s surname.
Resolution
As the 10 factors are nonexclusive, we note that a factor
not included in our prior analysis, but considered by the dis-
trict court, is the age of each child. Bryan and Tyler will both
become legal adults in a few years. At that point, if they wish,
they may change their names without any best interests analy-
sis or legal resistance from Phillip. The district court noted this
point as supporting its denial of the petitions. While we believe
that the boys’ ages are a proper consideration, we also note
that in general, children’s wishes with regard to issues affecting
them are usually given more weight as they age and mature. As
such, we do not give this factor great weight.
[6] Overall, we find that 7 of the 10 factors weigh against
the petitions for name change. Three factors weigh in favor
of changing the boys’ surnames. We note, however, that this
analy­sis is not a mechanical process, and the court must deter-
mine how much weight should be accorded to each factor.
When due weight is given to each factor, one can only con-
clude that this is a close case.
Ultimately, we must look to the burden of proof. As the
party seeking the name change, Kayla had the burden to show
that changing Bryan’s and Tyler’s surname was in their best
interests and that their substantial welfare required the name
changes. Having applied the factors and reached varied out-
comes as outlined above, we find that Kayla did not meet this
burden. The evidence did not show that either child’s sub-
stantial welfare requires the name change, and as explained
above, this is a necessary finding to grant the request. See
Westerhold v. Dutton, 28 Neb. App. 17, 938 N.W.2d 876- 353 -
Nebraska Court of Appeals Advance Sheets
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IN RE CHANGE OF NAME OF BRYAN C. & TYLER C.
Cite as 32 Neb. App. 335(2020). Further, although this is a de novo review, we recog-
nize that the district court observed the witnesses testify and
was in the best position to assess the conflicting evidence in
this case. For all of the foregoing reasons, we can find no
error in the district court’s ultimate conclusion and affirm its
order denying the petitions for name change.
CONCLUSION
Based on our review of the record, we affirm the district
court’s order denying Kayla’s request to change Bryan’s and
Tyler’s surname.
Affirmed.