Laranda Conner v. Robert King, II ( 2009 )

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
ASSIGNED ON BRIEFS JULY 31, 2009
LARANDA CONNER v. ROBERT KING, II
Direct Appeal from the Juvenile Court for Madison County
No. 40-0414 Christy Little, Judge
No. W2009-00511-COA-R3-JV - Filed November 18, 2009
The only issue on appeal is whether the trial court erred in changing the minor child’s surname.
Finding no error, we affirm.
Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Juvenile Court Affirmed
ALAN E. HIGHERS, P.J.,W.S., delivered the opinion of the court, in which DAVID R. FARMER, J., and
HOLLY M. KIRBY , J., joined.
David L. Hamblen, Union City, TN, for Appellant
Lisa A. Houston, Jackson, TN, for Appellee
OPINION
I. FACTS & PROCEDURAL HISTORY
The child at issue in this appeal was born on April 29, 2007. Two days before the child’s
birth, his father, Robert King, II (“Father”), filed a “Notice of Intent to Claim Paternity, Petition to
Determine Paternity, and to Adopt Permanent Parenting Plan.” Among other things, Father sought
visitation and requested that the child be given his last name. Father’s paternity was established, and
following a hearing, the trial court granted Father visitation and ordered the child’s name changed
from Brayden Cole Conner to Brayden Cole Conner-King. The child’s mother, Laranda Conner
(“Mother”), timely filed a notice of appeal.
II. ISSUES PRESENTED
On appeal, Mother contends that the trial court erred in changing the child’s surname. Father
contends that Mother’s appeal is frivolous and seeks an award of attorney’s fees. For the following
reasons, we affirm the decision of the juvenile court. However, we decline to award attorney’s fees
to Father on appeal.
III. STANDARD OF REVIEW
On appeal, a trial court’s factual findings are presumed to be correct, and we will not overturn
those factual findings unless the evidence preponderates against them. Tenn. R. App. P. 13(d)
(2008); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001). For the evidence to preponderate
against a trial court’s finding of fact, it must support another finding of fact with greater convincing
effect. Watson v. Watson, 196 S.W.3d 695, 701 (Tenn. Ct. App. 2005) (citing Walker v. Sidney
Gilreath & Assocs., 40 S.W.3d 66, 71 (Tenn. Ct. App. 2000); The Realty Shop, Inc. v. R.R.
Westminster Holding, Inc., 7 S.W.3d 581, 596 (Tenn. Ct. App. 1999)). We review a trial court’s
conclusions of law under a de novo standard upon the record with no presumption of correctness.
Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993) (citing Estate of Adkins v.
White Consol. Indus., Inc., 788 S.W.2d 815, 817 (Tenn. Ct. App. 1989)).
IV. DISCUSSION
A. The Child’s Name
The issue of whether to change a minor child’s surname is subject to an analysis based upon
concern for the child’s welfare. In re A.C.S., No. M2008-898-COA-R3-JV, 2009 WL 348510, at
*2 (Tenn. Ct. App. Feb. 12, 2009). “[P]aramount consideration must be given to what is in the best
interest of the child, and the rights of the parents must yield to that concern.” Halloran v. Kostka,
778 S.W.2d 454, 456 (Tenn. Ct. App. 1989) (citing Riddick v. Riddick, 497 S.W.2d 740 (Tenn. Ct.
App. 1973); Bevins v. Bevins, 53 Tenn. App. 403, 383 S.W.2d 780, 783 (1964)). “The parent
seeking to change the child’s surname has the burden of proving that the change will further the
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child’s best interests.” Barabas v. Rogers, 868 S.W.2d 283, 287 (Tenn. Ct. App. 1993) (citing 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)). Courts have generally declined to change a minor’s name
if only to avoid an insubstantial inconvenience or embarrassment to the child or the custodial parent,
and they have approved name changes when doing so furthers the child’s substantial interests. In
re Lackey, No. 01A01-9010-PB-00358, 1991 WL 45394, at *2 (Tenn. Ct. App. Apr. 5, 1991) (citing
Laks v. Laks, 25 Ariz. App. 58, 540 P.2d 1277, 1279-80 (1975); Flowers v. Cain, 218 Va. 234, 237
S.E.2d 111, 113 (1977)).
Some factors to consider in determining whether changing the child’s name will be in the
child’s best interest include:
(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 [38 Ohio St. 3d 330, 528 N.E.2d
180, 185 (1988)]; Daves v. Nastros, 105 Wash.2d 24, 711 P.2d 314, 318 (1985).
Barabas, 868 S.W.2d at 287. 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-COA-
R3-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”).
In this case, the trial court’s order does not include factual findings regarding its best interest
analysis, but the order does state, “the mother may hyphenate her name with the surname of King
as she chooses, and the mother having announced to the court that she elects to do so and the child’s
name shall be Brayden Cole Conner-King.” (emphasis added). We do not have a transcript of the
entire hearing before the trial court. Instead, we have a statement of the evidence filed by Mother,
which only consists of selected portions of the parties’ testimony “as derived from the Juvenile
Court’s tape recording” of the hearing. The record does not include any information regarding
Mother’s apparent announcement to the court that she elected to hyphenate her name. Thus, it is not
clear from the record whether Mother also agreed to the hyphenation of Brayden’s name as some sort
of compromise. In any event, we find that the evidence does not preponderate against the trial
court’s finding that changing Brayden’s surname to Conner-King would be in his best interest.
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Father testified that Mother had agreed to give Brayden Father’s last name early in her
pregnancy, and that she later changed her mind. Father sent financial support to Mother during her
pregnancy, and he testified that he wanted to be involved in the birth, but Mother failed to notify him
when Brayden was born. Mother admitted that she did not notify him of Brayden’s birth despite
Father’s requests that she do so. Father filed his petition to establish paternity and seek visitation
before Brayden was even born. At the time of the hearing, Father had only been home from serving
in the military for approximately two and one-half months, but he had visited Brayden approximately
once a week.
The trial judge noted that the Barabas factors were “not as relevant” in this case due to the
child’s age. Clearly, the child is too young to have a preference regarding his last name. The child
was not yet born when Father filed his petition, and at the time of trial, he had only had his present
surname for approximately eight months. Mother argues in her brief that “the change in the child’s
name does not pose any potential effect on the child’s relationship with each parent.” However, we
find that hyphenating Brayden’s last name to include Father’s surname would affirm his bond with
Father. Regarding the “degree of community respect” associated with either name, Father testified
that he came from a “respectable, wonderful family” of elected officials, law enforcement officers,
and military personnel, and he said that he planned to be “somebody that [Brayden] can be proud to
have as a father.” However, he acknowledged on cross-examination that his father was a convicted
felon, currently serving time in the penitentiary. Father testified that he did not know of any reason
why Brayden would suffer embarrassment or harassment with either name, while Mother testified
that the “King” name was associated with being a “crack head.” Father expressed his concern about
the possibility that Mother would marry, and that Brayden would then have a last name that differed
from his name and Mother’s name. In Keith v. Surratt, No. M2004-01835-COA-R3-CV, 2006 WL
236941, at *7-8 (Tenn. Ct. App. E.S. Jan. 31, 2006), a father testified that his children might be
confused if their mother remarried and their name was different from both parents’ names, and the
Court held that his testimony constituted sufficient proof that it was in the children’s best interest
for them to be given their father’s name.1
Considering all the circumstances in this case, we cannot say that the evidence preponderates
against the trial court’s conclusion that it would serve Brayden’s best interest to have his surname
changed to Conner-King.
B. Attorney’s fees on Appeal
Father contends that he should be awarded attorney’s fees because Mother’s appeal is
frivolous. Tennessee Code Annotated section 27-1-122 provides:
When it appears to any reviewing court that the appeal from any court of record was
frivolous or taken solely for delay, the court may, either upon motion of a party or of
1
W e note that in Keith, the children were given their mother’s last name when they were born, which was not
her maiden name but the name she retained after divorcing her first husband. 2006 W L 236941, at *7.
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its own motion, award just damages against the appellant, which may include but
need not be limited to, costs, interest on the judgment, and expenses incurred by the
appellee as a result of the appeal.
The decision to award damages for the filing of a frivolous appeal rests solely in the discretion of
this Court. Whalum v. Marshall, 224 S.W.3d 169, 180-81 (Tenn. Ct. App. 2006) (citing Banks v.
St. Francis Hosp., 697 S.W.2d 340, 343 (Tenn. 1985)). “Successful litigants should not have to bear
the expense and vexation of groundless appeals.” Id. at 181 (quoting Davis v. Gulf Ins. Group, 546
S.W.2d 583, 586 (Tenn. 1977)). An appeal is frivolous when it has “no reasonable chance of
success” or is “so utterly devoid of merit as to justify the imposition of a penalty.” Id. (citing
Combustion Eng'g, Inc. v. Kennedy, 562 S.W.2d 202, 205 (Tenn. 1978); Jackson v. Aldridge, 6
S.W.3d 501, 504 (Tenn. Ct. App. 1999)). We exercise our discretion under this statute sparingly so
as not to discourage legitimate appeals. Id. In this case, we find it equitable to decline to award
attorney’s fees.
V. CONCLUSION
For the aforementioned reasons, we affirm the decision of the juvenile court. Costs of this
appeal are taxed to the appellant, Laranda Conner, and her surety, for which execution may issue if
necessary.
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ALAN E. HIGHERS, P.J., W.S.
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