Hamman v. County Court in & for the County of Jefferson , 12 Brief Times Rptr. 578 ( 1988 )

LOHR, Justice,

concurring in part and dissenting in part:

I agree with the majority that the county court had jurisdiction to rule on the name change of a minor child of divorced parents under section 13-15-101, 6 C.R.S. (1973). I do not agree with the majority, however, that the petitioner, a noncustodial father, was entitled to notice of a name-change proceeding with respect to his minor child under the provisions of sections 13-15-101 and -102, 6 C.R.S. (1973). Furthermore, I would hold that such notice is not constitutionally required. I would therefore hold that the county court did not err in ordering the name change requested by the mother, who had legal and physical custody of the child, without providing notice to the petitioner.

Section 13-15-101, 6 C.R.S. (1973), which governs name changes in Colorado,¹ provides:

Every person desiring to change his name may present a petition to that effect, verified by affidavit, to the district, superior, or county court in the county of the petitioner’s residence. The petition shall set forth the petitioner’s full name, the new name desired, and a concise statement of the reason for such desired change. The court shall order such change to be made, and spread upon the records of the court in proper form, if the court is satisfied that the desired change would be proper, and not detrimental to the interests of any other person.

Section 13-15-102, 6 C.R.S. (1973), the notice provision of the name change statute, states:

Public notice of such change of name shall be given at least three times in a newspaper published in the county where such person is residing within twenty days after the order of the court is made, and if no newspaper is published in that county, such notice shall be published in a newspaper in such county as the court directs.

This statute contains no provision for notice to be given to anyone in advance of a hearing on a petition for a change of name. Only after a name change has been granted is notice required, and that notice is to be accomplished by publication. Therefore, there is no basis in the language of the statute to support the petitioner’s contention that he was entitled to notice and an opportunity to be heard concerning a petition for change of name of his minor child.

The petitioner concedes that the statute contains no express requirement that notice be given to him prior to a hearing on the petition for change of name. The petitioner argues, however, that such a notice requirement is implicit in section 13-15-101. The petitioner refers to the language of section 13-15-101 that provides that “[t]he court shall order [a name] change to be made ... if the court is satisfied that the desired change would ... not [be] detrimental to the interests of any other person.” The petitioner contends that a court cannot make such a determination without giving an interested noncustodial parent notice of the hearing and an opportunity to be heard.

The petitioner’s argument, which the majority appears to accept, see majority op. at 748 n. 8, ignores the plain language of the statute. The statute contains no requirement that notice be given to all persons whose interests might be detrimentally affected by a change of name. When the language of a statute is clear, a court must give effect to the statute as written. E.g., Trinity Universal Ins. Co. v. Hall, 690 P.2d 227, 230 (Colo.1984). Moreover, the legislature’s inclusion of a provision for notice after entry of an order for change of name shows that it considered the notice question. Had it desired to include a requirement for notice in advance of the hearing, the legislature could have done so within the text of the notice provision. The legislature chose not to provide such a requirement. I would hold, therefore, that neither section 13-15-101 nor section 13-15-102 requires that notice be given to a noncustodial parent before a court orders a name change for that parent’s minor child.

The petitioner argues that if the statute contains no requirement for notice to him in advance of the hearing, it violates the due process clause of the Colorado Constitution.² Article II, section 25, of the Colorado Constitution provides that “[n]o person shall be deprived of life, liberty or property, without due process of law.” The resolution of a due process question involves a two step analysis. The first question is whether the petitioner was deprived of a constitutionally protected interest. People v. Lamb, 732 P.2d 1216, 1221 (Colo.1987). Only if the interest is determined to be constitutionally protected does the question of how much process is due arise. See People v. Chavez, 629 P.2d 1040, 1045-46 (Colo.1981). The petitioner’s argument assumes that he has some constitutionally protected interest in his minor child’s name. The petitioner does not make clear the exact nature of the interest.³ Presumably, the only possible type of interest the petitioner would have in his daughter’s name is some sort of quasi-property interest. I would hold that whatever may be the correct characterization of the petitioner’s interest, it is not an interest in “life, liberty or property” within the meaning of the due process clause of the Colorado Constitution.

At common law, there is no property right to the use of a name. Rio v. Rio, 132 Misc.2d 316, 504 N.Y.S.2d 959, 960 (Sup.Ct.1986) (at common law, no one has a property right to a personal name such that one can keep another from using it); Petition of Falcucci, 355 Pa. 588, 50 A.2d 200, 202 (1947) (same). Although hereditary surnames are customary, that custom has never amounted to a common law legal right of a father to require that his children bear his surname. Laks v. Laks, 25 Ariz.App. 58, 540 P.2d 1277, 1279 (1975). Thus, at common law a minor could change his name without resorting to legal formality. Laks, 540 P.2d at 1279. For purposes of a due process analysis, while a father may have “a recognized interest in having his child bear his surname,” Cohan v. Cunningham, 104 A.D.2d 716, 480 N.Y.S.2d 656, 657 (1984), the interest is not a property interest entitled to due process protection. Laks, 540 P.2d at 1279 (father’s interest is not property interest entitled to constitutional protection; rather, surname reflects custom of persons to bear the names of their parents).

In Fulghum v. Paul, 229 Ga. 463, 192 S.E.2d 376 (1972), the Georgia Supreme Court considered this issue in the context of a fact situation somewhat similar to that of the present case. In Fulghum, the state name change statute required advance notice by publication of a petition for name change but contained no requirement that actual notice be given. The plaintiff, a divorced noncustodial father, sought to vacate a judgment changing the surname of his minor child to that of the child’s stepfather. The plaintiff contended that the statute was unconstitutional under the due process clauses of the state and federal constitutions because it did not require personal service upon him as the biological father of the child. The court stated that as a policy matter, it would seem appropriate that a father present in the state with a known address should receive notice of his minor child’s petition for name change. The court also conceded that the father had a certain protectible interest in his child's name. The court held, however, that the interest was not a property right as contemplated by the due process clause of either the federal or state constitution. Fulghum, 192 S.E.2d at 377-78. Therefore, it was the prerogative of the legislature “to prescribe what notice, if any, is required prior to the court’s action upon a petition for change of name.” Id. at 377.⁴

I would follow the reasoning of the Georgia court. The interest of a noncustodial parent in his or her child’s name, while certainly important to the parent, is not of constitutionally protected magnitude. Therefore, the lack of an actual notice provision in Colorado’s name change statute does not violate due process under our constitution. This is not to affirm the wisdom of the present notice requirements. It may well be that sound policy requires that notice be given to a noncustodial parent before his or her minor child’s name is changed. This, however, is a question best left for the legislature to address. Indeed, the myriad contexts and considerations involved in name-change proceedings suggest that this is a subject peculiarly appropriate for the legislative forum, where all relevant considerations can be exposed, debated and resolved. See generally Rio v. Rio, 132 Misc.2d 316, 504 N.Y.S.2d 959 (Sup.Ct.1986). Absent any statutory or constitutional requirement that actual notice be provided, we have no basis to require such notice.⁵

Neither the name change statute nor the due process clause requires that notice be given to a non-custodial parent prior to the change of the name of that parent’s child. Because such notice is not required, I would hold that the county court did not err by ordering that the petitioner’s daughter’s name be changed without providing prior notice to the petitioner.⁶

MULLARKEY, J., joins in this concurrence and dissent.

1 . In 1987, the statute was amended to refer to "the district or county court” rather than “the district, superior, or county court.” As amended, the statute is found in § 13-15-101, 6A C.R.S. (1987).

2 . The petitioner mentions specifically only the due process clause of the Colorado Constitution. It is not altogether clear, however, whether he also relies on the due process requirement contained in the fourteenth amendment to the United States Constitution. Concerning the question at hand, the analysis and result would be the same under either constitutional provision.

3 . In one part of his brief, the petitioner implies that a father has a liberty interest in his daughter’s name, citing Roe v. Conn, 417 F.Supp. 769 (M.D.Ala., N.D.1976). The court in Roe, however, held that a child had a liberty interest in his own name. The court made no reference to any liberty interest on the part of the child's parent in his child’s name. See Roe, 417 F.Supp. at 782-83.

4 . Some courts that have considered the issue have held that a father has some kind of constitutionally protectible interest in his child’s name, requiring that the father be given notice of a name-change proceeding. In re Tubbs, 620 P.2d 384, 387 (Okla.1980) (“The interest comprised within the parental bond is the subject of constitutional protection under both the Due Process and Equal Protection Clauses”); Esckrich v. Williamson, 475 S.W.2d 380, 383 (Tex.Ct.App.1972) (father has interest in name-change proceeding concerning his minor child, requiring notice under federal and state constitutions).

5 . The construction of section 13-15-101 adopted by the majority would seem to require that in advance of hearing in each case a determination must be made as to the identity of the persons whose interests might be detrimentally affected by a name change. This will be a daunting task, from both a factual and legal standpoint, and there will be little assurance of the accuracy of the result. I find nothing in the statutory scheme to suggest that the legislature contemplated it.

6 . The petitioner asserts no other basis for his contention that the county court erred in ordering the change of name. There is no occasion in this case to consider the quality and quantum of evidence necessary to support a court’s required determination under § 13-15-101 that "the desired change would be proper, and not detrimental to the interests of any other person.”