Piotrowski v. Piotrowski , 71 Mich. App. 213 ( 1976 )

M. F. Cavanagh, J.

Plaintiff appeals from a judgment of divorce of September 24, 1975, and claims error in the trial court’s denial of plaintiffs request to have her maiden name restored.

Under the common law a person may adopt any name he or she wishes, without resort to any court and without any legal proceedings, provided it is not done for fraudulent purposes. See Kruzel v Podell, 67 Wis 2d 138, 151; 226 NW2d 458, 464 (1975), Petition of Hauptly, — Ind App —; 312 NE2d 857, 859 (1974), Egner v Egner, 133 NJ Super 403, 406; 337 A2d 46, 48 (1975), Application of Lawrence, 133 NJ Super 408, 411; 337 A2d 49, 51 (1975), In re Marriage of Banks, 42 Cal App 3d 631, 637; 117 Cal Rptr 37, 41 (1974), Application of Halligan, 46 App Div 2d 170, 171; 361 NYS2d 458, 459 (1974). There is no requirement that any person go through the courts to establish a legal change of name. Thus, even if a woman changes her name upon marriage, there is nothing which forbids her from changing her name back to her maiden name, or any other name, provided it is not done with fraudulent intent.

In Michigan, as in most states, a statute authorizes procedures by which a court can, upon petition, change the name of any person. MCLA 711.1; MSA 27.3178(561). Such change of name statutes do not abrogate or supersede the common law. To the contrary, they affirm the common law right and afford an additional method by which a name change may be effected as a matter of public record. Kruzel v Podell, supra, Petition of Hauptly, supra, Egner v Egner, supra, Application of Lawrence, supra, In re Marriage of Banks, supra, Application of Halligan, supra.

Another Michigan statute — directly at issue here — authorizes the circuit courts, whenever a divorce is granted, to change the woman’s name, at her instance.

"The circuit courts of this state, whenever a decree of divorce is granted, may, at the instance of the woman, whether complainant or defendant, decree to restore to her her birth name, or the surname she legally bore prior to her marriage to the husband in the divorce action, or allow her to adopt another surname if the change is not sought with any fraudulent or evil intent.” MCLA 552.391; MSA 25.181.

The use of the word "may” would indicate that the court is empowered to decree the name restoration, with the only restriction being the common law one, that the change not be with any fraudulent or evil intent.

In the instant case the judge refused plaintiffs request because there was a child and, if plaintiffs request were granted, the mother would have a different name from the child’s.

"The Court: I do not think she should change her name if there is a child.

"Mr. McGuire [Plaintiffs Counsel]: The statute allows the party to change.

"The Court: It is permissive.

"Mr. McGuire: Yes, it is permissive.

"The Court: I do not think I should. I think the child should be able to go by the name of its parents.

"Mr. McGuire: Your Honor, I am not asking for the child’s name to be changed.

"The Court: I know that, but you will have a mother with a different name than the child. The mother probably is going to have custody.

"Mr. McGuire: I would assume so.

"The Court: I think she ought to keep the same name as her child. You don’t get into all that trouble about going to school and so forth.”

Prior to amendment in 1975 of MCLA 552.391; MSA 25.181 by 1975 PA 40, the statute contained a proviso that it did not apply when there was a minor child or children. The amended statute does not contain that proviso and we therefore presume that its exclusion was intended to make the statute applicable whether or not a minor child was involved.

Under the statute a request like the instant one is addressed to the statutorily limited discretion of the circuit court. The exercise of that discretion must be based on reason and on evidence. The circumstance that there is a minor child is not enough to support denial of the request. Speculation as to possible embarrassment to, confusion or harassment of, or harmful effect on the child or children due to the mother having a different name is not sufficient either. Egner v Egner, supra, In re Marriage of Banks, supra, also, Petition of Hauptly, supra. Denial of the request was an improper exercise of the court’s discretion.

We have reviewed the three other issues raised by appellant. They relate to certain support and property settlement provisions contained in the judgment of divorce, matters within the discretion of the trial court. We find no abuse of this discretion.

Reversed and remanded for a decree to restore to plaintiff her maiden name. No costs, neither party having prevailed in full.

Bashara, P. J., concurred.