In Re: A.M.K. ( 2011 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
June 22, 2011 Session
IN RE: A.M.K.
Appeal from the Juvenile Court for Knox County
No. F9235 Timothy Irwin, Judge
No. E2011-00292-COA-R3-JV-FILED-AUGUST 11, 2011
This appeal concerns the changing of a minor child’s surname. Tyler Weseman (“Father”)
and Amanda King (“Mother”) are, respectively, the father and mother of the minor child
A.M.K. (“the Child”). Father filed a petition to establish parentage and co-parenting time.
Father sought to have the Child bear his surname. The Juvenile Court for Knox County (“the
Juvenile Court”) changed the Child’s surname from King to King-Weseman. Mother
appeals. We hold that the evidence does not preponderate against the Juvenile Court’s
finding that changing the Child’s surname to King-Weseman is in the Child’s best interest.
We further hold that the Juvenile Court did not abuse its discretion in declining to award
attorney’s fees to Mother. The judgment of the Juvenile Court is affirmed.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed;
Case Remanded
D. M ICHAEL S WINEY, J., delivered the opinion of the Court, in which C HARLES D . S USANO,
J R., and J OHN W. M CC LARTY, J.J., joined.
David L. Valone, Knoxville, Tennessee, for the appellant, Amanda King.
Farrell A. Levy, Knoxville, Tennessee, for the appellee, Tyler Weseman.
OPINION
Background
Father and Mother dated for a time in 2008. Mother became pregnant. In
November 2008, before the Child was born, Father filed his Petition to Establish Parentage
and Co-Parenting Time. Father asked, among other things, that “based upon the results of
the DNA testing, the child take Petitioner’s surname.” Mother, in her answer, demanded
strict proof regarding Father’s paternity of the Child. The Child was born in May 2009 and
was given Mother’s surname. The Magistrate of the Juvenile Court entered Findings and
Recommendations, reserving the matter of the Child’s surname. In April 2010, the Juvenile
Court entered an order nunc pro tunc to June 24, 2009 establishing Father’s paternity of the
Child.1 Also in April 2010, the Magistrate of the Juvenile Court entered an order nunc pro
tunc to March 17, 2010 denying Father’s request to have the Child’s surname changed. The
Magistrate of the Juvenile Court later denied Mother’s request for attorney's fees. Father
appealed the Magistrate’s decision pertaining to the Child’s surname and Mother appealed
the Magistrate’s denial of her attorney’s fees. In September 2010, this matter was heard
before the Judge of the Juvenile Court.
Father testified first. Father stated that he worked at Saint Mary’s North
Medical Center. Father testified that he had no criminal record. In September 2008, Mother
informed Father that she was pregnant and that he was the father. Mother and Father were
dating at that time. Father stated that he wished he could have been present at the birth of
the Child in May 2009 but that he never was notified by Mother’s family of the event.
Father testified that he had time with the Child every week from Tuesday
morning through Thursday. Father testified regarding the activities he engages in with the
Child:
We do all kinds of stuff. I’ve got a back pack I put her in and we go
hiking. I take her to the pool. We read a lot of books. We go to the library.
A few weeks ago I signed her up for gym classes at the Little Gym in
Knoxville. It’s on Kingston Pike. So I take her there. It’s every Wednesday.
It’s just kind of like a gymnastics thing for small children. We take naps, play
outside, horseplay, you know, things of that nature.
Father stated that he initially did not pay child support after the Child was born as he was not
1
The order did not specifically state that Father was the father of the Child. An agreed order was
later entered correcting the clerical error and specifically identifying Father as the father of the Child.
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certain that he was the Child’s father, but testified: “[O]nce the paternity was set they
calculated the support for, I guess, the past month sir I paid immediately. Never missed a
payment. I’ve never made a late payment. I don’t know what more I could do.” Father
stated that, when younger, as part of his sports activities, people would call him “Weissy” as
a nickname. Regarding why he believed it was important for the Child to share his surname,
Father testified that he had to explain to people the reasons behind the Child’s surname and
considered how she would have to answer such questions when she got older.
Marcus Weseman (“the Grandfather”), Father’s father, testified next. The
Grandfather stated that he is Vice President at Oak Ridge Associated Universities and he
directs the “Health Education Programs which are primarily immunization for children,
young adults, [and] families.” The Grandfather testified regarding his activities in the
community:
I coached American Youth Soccer Organization Soccer for eleven (11)
years in Knox County in the Ball Camp Region. I coached girl’s teams, my
daughter’s teams from age 5 to 15. I have … was on the Board of Directors
for the soccer organization in the Ball Camp Region. Very active in
supporting children’s causes. I’ve been a major financial supporter of COSA
for their fund raising events. Put up money for the sculpture that’s in front of
Juvenile Court. So I have been … and before that I was a school teacher in
Knox County … or Knox City and before that I worked at the Juvenile Home
for Juvenile Court. So most of my career, my volunteer activities are all aimed
at improving the lives of children and young adults.
The Grandfather stated that he did not live in East Knox County like Mother but that he had
“people that work for me that live in East Knox County that know [Father] and that know
me.” Father’s sporting activities took place around ten years ago and people in East Knox
County did not know the Grandfather through sporting activities related to Father since then.
Wesley Trout (“Trout”), Bible Associate Pastor at North Acres Baptist Church,
testified that he had known Mother for around three years and that the King family had a
good reputation in the community. Trout testified that he knew that the Child has a younger
sister with the surname King. Trout stated that he was concerned that, were the Child’s
surname changed, children might inquire as to why. On cross-examination, Trout admitted
that children at school also might wonder why the Child does not share the same surname as
her father.
Kathy King (“the Grandmother”), the Child’s maternal grandmother, testified
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that she and her family have lived in East Knox County for more than fifty years. The
Grandmother stated that both her granddaughters have the surname King. The Grandmother
testified that she was concerned about her granddaughters having different surnames as they
were close together and would attend the same school. The Grandmother stated that her
family did mission work and that the Child is known by the surname King.
Mother testified last. Mother stated that she worked as an imaging tech for
Fort Sanders West Diagnostic Center. A number of documents were entered as exhibits
showing that, up to the time of the trial, the Child had gone by the surname King. Mother
testified that she maintained health insurance on the Child even though Father was supposed
to do so pursuant to the parenting plan. Mother stated that she had concerns about her
daughters having different surnames and how difficult it would be for them to explain the
difference. Mother testified that if she got married she would retain the name King since
both her daughters had the name King. Mother, however, also stated that she would not
neglect to have additional children simply to insure that she and her two daughters could all
keep the same surname.
Following the testimony of the witnesses, the Juvenile Court stated in its
“Judge’s Ruling”:
As I said earlier with a child this young the Barabbas factors often times don’t
make enough difference one way or the other. They are among the factors to
be considered is what the case language in Barabbas tells us. I’ve listened very
closely to the relevant parts of both Party’s arguments and the witnesses in this
case. This is a lucky child. She’s got two strong families that care a great deal
about how she does in life. This child is not the same as her sister. She
doesn’t have the same parentage. She doesn’t have the same lineage. There’s
no requirement that her name be the same as her sister. I think it only
equitable in this particular situation with the father spending three (3) days and
two (2) nights a week with the child, with the father meeting all his
obligations, with him being so involved in the child’s life that this child’s
name be hyphenated and so go forth from this day forward with the name
King-Weseman. I think it’s fair that this child be called by the last name of
both strong families. That it’s in her best interest to have both of these proud
families’ names associated with her. I think that retaining the name King in
some form or fashion will alleviate some of the concerns that the mother and
her family have had. And I think in this case, although I don’t always find this
way, a hyphenated name makes sense.
In December 2010, the Juvenile Court entered an order changing the Child’s surname to
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King-Weseman and denying Mother’s request for attorney’s fees.
Discussion
Though not stated exactly as such, Mother raises two issues on appeal: 1)
whether the Juvenile Court erred in changing the Child’s surname to a hyphenated surname;
and 2) whether the Juvenile Court erred in declining to award attorney’s fees to Mother.
Our review is de novo upon the record, accompanied by a presumption of
correctness of the findings of fact of the trial court, unless the preponderance of the evidence
is otherwise. Tenn. R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001).
A trial court's conclusions of law are subject to a de novo review with no presumption of
correctness. S. Constructors, Inc. v. Loudon County Bd. of Educ., 58 S.W.3d 706, 710 (Tenn.
2001).
We first address whether the Juvenile Court erred in changing the Child’s
surname to a hyphenated surname. We have addressed the changing of a child’s surname:
The courts should not change a child's surname unless the change
promotes the child's best interests. Halloran v. Kostka, 778 S.W.2d 454, 456
(Tenn. Ct. App. 1988); see also In re Marriage of Schiffman, 169 Cal. Rptr.
918, 921, 620 P.2d 579, 582 (1980); In re Cardinal, 611 A.2d at 517; Kristine
C. Karnezis, Annotation, Rights and Remedies of Parents Inter Se With
Respect to the Name of Their Children, 92 A.L.R. 3d 66 § 8.5 (Supp. 1992).
Among the criteria for determining whether changing a child's surname will
be in the child's best interests are: (1) the child's preference, (2) the change's
potential effect on the child's relationship with each parent (3) the length of
time the child has had its present surname, (4) the degree of community respect
associated with the present and proposed surname, and (5) the difficulty,
harassment, or embarrassment that the child may experience from bearing
either its present or its proposed surname. In re Saxton, 309 N.W.2d 298, 301
(Minn.1981); Bobo v. Jewell, 528 N.E.2d at 185; Daves v. Nastros, 105
Wash.2d 24, 711 P.2d 314, 318 (1985). The parent seeking to change the
child's surname has the burden of proving that the change will further the
child's best interests. In re Petition of Schidlmeier, 344 Pa.Super. 562, 496
A.2d 1249, 1253 (1985); In re M.L.P., 621 S.W.2d 430, 431 (Tex. Ct. App.
1981).
Barabas v. Rogers, 868 S.W.2d 283, 287 (Tenn. Ct. App. 1993)
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Father directs our attention to the case of Conner v. King, No.
W2009-00511-COA-R3-JV, 2009 WL 3925164 (Tenn. Ct. App. November 18, 2009), Rule
11 Appl. Perm. Appeal Denied May 11, 2010, which expands upon the five-pronged Barabas
criteria. We stated:
Although these criteria “may offer a court guidance” in determining whether
a name change would be in the child's best interest, they “are not exclusive and
obviously may not be relevant given the facts of a particular case.” Keith v.
Surratt, No. M2004-01835-COAR3-CV, 2006 WL 236941, at *8 (Tenn. Ct.
App. Jan. 31, 2006). Where a father requests that his child be given his
surname, courts have also considered the nature of the father's relationship
with the child. See, e.g., State of Tenn., Dep't of Human Servs. v. Sanders, No.
03A01-9705-JV-00184, 1998 WL 8516, at *2 (Tenn. Ct. App. Jan. 13, 1998)
(noting that the child “knows his father, who provides for him; a bond has
developed between them, [and] he has been legitimated”); Halloran v. Kostka,
778 S.W.2d at 456 (noting that the father had “maintained contact with and
supported [the child] throughout her life”).
Conner, 2009 WL 3925164, at *2.
In this case, the testimony at trial established that Father maintained a good
relationship with the Child. Indeed, Father testified to a “very strong bond” with the Child
and described his active participation in the Child’s life. Both parties advance concerns
about the Child’s surname, particularly regarding potentially embarrassing questions to the
Child that might arise from others as to why the Child does not share the surname of her
father or sister, as the case may be. More pertinent to our analysis is the evidence of a strong
bond between Father and the Child. In Conner, given the facts of that case, we found that
hyphenating the child’s surname to include his father’s surname would “affirm his bond with
[his] Father.” Conner, 2009 WL 3925164, at *3. The father in Conner, among other things,
asserted his paternity prior to the birth of his child and engaged in visitation with the child
as Father has done in this case. Id. at *2.
We are persuaded that hyphenating the Child’s surname will affirm her bond
with Father, as well. This bond, as well as the strength of both families as evidenced in the
record, is effectively reflected through a hyphenated surname combining the family names.
Though neither party in this case initially advocated a hyphenated surname,2 there is
2
On appeal, Father states that, solely based on the reputation of the Weseman name in the
community, the Juvenile Court should have given the Child his surname outright, but he considers the
(continued...)
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sufficient evidence in the record to support the Juvenile Court’s finding that changing the
Child’s surname to King-Weseman is in her best interest. With this outcome, the Child can,
as the Juvenile Court stated in explaining its ruling, “be called by the last name of both strong
families.” The evidence does not preponderate against the Juvenile Court’s finding that
changing the Child’s surname to a hyphenated name is in her best interest. Therefore, we
affirm the judgment of the Juvenile Court with respect to this issue.
We next address whether the Juvenile Court erred in declining to award
attorney’s fees to Mother. Mother invokes Tenn. Code Ann. § 36-5-103(c) which provides:
(c) The plaintiff spouse may recover from the defendant spouse, and the
spouse or other person to whom the custody of the child, or children, is
awarded may recover from the other spouse reasonable attorney fees incurred
in enforcing any decree for alimony and/or child support, or in regard to any
suit or action concerning the adjudication of the custody or the change of
custody of any child, or children, of the parties, both upon the original divorce
hearing and at any subsequent hearing, which fees may be fixed and allowed
by the court, before whom such action or proceeding is pending, in the
discretion of such court.
Tenn. Code Ann. § 36-5-103(c)(2010).3 Pursuant to the statute, we review this issue raised
on appeal for abuse of discretion. Id. In Lee Medical, Inc. v. Beecher, 312 S.W.3d 515(Tenn. 2010), the Supreme Court discussed the abuse of discretion standard at length, stating:
The abuse of discretion standard of review envisions a less rigorous
review of the lower court’s decision and a decreased likelihood that the
decision will be reversed on appeal. Beard v. Bd. of Prof’l Responsibility, 288
S.W.3d 838, 860 (Tenn. 2009); State ex rel. Jones v. Looper, 86 S.W.3d 189,
193 (Tenn. Ct. App. 2000). It reflects an awareness that the decision being
reviewed involved a choice among several acceptable alternatives. Overstreet
v. Shoney’s, Inc., 4 S.W.3d 694, 708 (Tenn. Ct. App. 1999). Thus, it does not
permit reviewing courts to second-guess the court below, White v. Vanderbilt
Univ., 21 S.W.3d 215, 223 (Tenn. Ct. App. 1999), or to substitute their
discretion for the lower court’s, Henry v. Goins, 104 S.W.3d 475, 479 (Tenn.
2003); Myint v. Allstate Ins. Co., 970 S.W.2d 920, 927 (Tenn. 1998). The
2
(...continued)
Juvenile Court’s decision to name the Child “King-Weseman” acceptable.
3
The parties do not dispute the relevant statute.
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abuse of discretion standard of review does not, however, immunize a lower
court’s decision from any meaningful appellate scrutiny. Boyd v. Comdata
Network, Inc., 88 S.W.3d 203, 211 (Tenn. Ct. App. 2002).
Discretionary decisions must take the applicable law and the relevant
facts into account. Konvalinka v. Chattanooga-Hamilton County Hosp. Auth.,
249 S.W.3d 346, 358 (Tenn. 2008); Ballard v. Herzke, 924 S.W.2d 652, 661
(Tenn. 1996). An abuse of discretion occurs when a court strays beyond the
applicable legal standards or when it fails to properly consider the factors
customarily used to guide the particular discretionary decision. State v. Lewis,
235 S.W.3d 136, 141 (Tenn. 2007). A court abuses its discretion when it
causes an injustice to the party challenging the decision by (1) applying an
incorrect legal standard, (2) reaching an illogical or unreasonable decision, or
(3) basing its decision on a clearly erroneous assessment of the evidence. State
v. Ostein, 293 S.W.3d 519, 526 (Tenn. 2009); Konvalinka v.
Chattanooga-Hamilton County Hosp. Auth., 249 S.W.3d at 358; Doe 1 ex rel.
Doe 1 v. Roman Catholic Diocese of Nashville, 154 S.W.3d at 42.
To avoid result-oriented decisions or seemingly irreconcilable
precedents, reviewing courts should review a lower court’s discretionary
decision to determine (1) whether the factual basis for the decision is properly
supported by evidence in the record, (2) whether the lower court properly
identified and applied the most appropriate legal principles applicable to the
decision, and (3) whether the lower court’s decision was within the range of
acceptable alternative dispositions. Flautt & Mann v. Council of Memphis,
285 S.W.3d 856, 872-73 (Tenn. Ct. App. 2008) (quoting BIF, a Div. of Gen.
Signal Controls, Inc. v. Service Constr. Co., No. 87-136-II, 1988 WL 72409,
at *3 (Tenn. Ct. App. July 13, 1988) (No Tenn. R. App. P. 11 application
filed)). When called upon to review a lower court’s discretionary decision, the
reviewing court should review the underlying factual findings using the
preponderance of the evidence standard contained in Tenn. R. App. P. 13(d)
and should review the lower court’s legal determinations de novo without any
presumption of correctness. Johnson v. Nissan N. Am., Inc., 146 S.W.3d 600,
604 (Tenn. Ct. App. 2004); Boyd v. Comdata Network, Inc., 88 S.W.3d at 212.
Beecher, 312 S.W.3d at 524-25.
Mother argues on appeal that “since she was successful in getting an order for
child support and child support arrearage, that she is entitled to an award of fees.” It bears
noting that Father filed the Petition to Establish Parentage and Co-Parenting Time in
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November 2008, well before the birth of the Child. Father affirmatively stepped forward and
asked that child support be set.
We do not agree with Mother’s contention that she is entitled to an award of
attorney’s fees. The Juvenile Court neither applied an incorrect legal standard nor reached
a decision against logic or reasoning. Given this, we will not substitute our judgment for that
of the Juvenile Court. We find that the Juvenile Court did not abuse its discretion in declining
to award Mother attorney’s fees.
Conclusion
The judgment of the Juvenile Court is affirmed, and this cause is remanded to
the Juvenile Court for collection of the costs below. The costs on appeal are assessed against
the Appellant, Amanda King, and her surety, if any.
_________________________________
D. MICHAEL SWINEY, JUDGE
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