In Re: A.C.S., A Minor Child ( 2009 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
December 11, 2008 Session
IN RE: A.C.S., A MINOR CHILD
Appeal from the Juvenile Court for Davidson County
No. 2006-006117 Honorable Alan Calhoun, Special Judge
No. M2008-898-COA-R3-JV - Filed February 12, 2009
The Father, C.E.S., and Mother, L.L.S., were not married at the time of the birth of
their minor child, A.C.S., on September 27, 2006. The birth certificate was initially caused to reflect
the child’s surname as that of Mother. On November 17, 2006, the Father filed a petition in the
Juvenile Court of Davidson County, Tennessee, to establish parentage for joint custody. An Order
of Parentage, reserving the issue of changing the child’s surname, was entered by the Juvenile Court,
through Special Referee, on February 27, 2007. The Juvenile Court Referee subsequently ordered
that the child’s surname be changed to that of Father by Order entered December 13, 2007.
Following an appeal of the Referee’s decision, the Juvenile Court, by Special Judge, affirmed the
Referee’s decision and ordered that the surname of the child be changed to that of Father. Mother
appealed, claiming that Father failed in meeting his burden of proof of showing by a preponderance
of the evidence that changing the minor child’s surname was in the best interest of the child. We
reverse and remand for further proceedings.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile
Court Reversed; Case Remanded
THOMAS R. FRIERSON , II, SP . J., delivered the opinion of the court, in which HERSCHEL P. FRANKS,
P.J., and D. MICHAEL SWINEY , J., joined.
Randall Pierce and Derrick H. Green, Mt. Juliet, Tennessee, Attorneys for the Appellant, L.L.S.
Frank E. Mondelli and Peter D. Heil, Nashville, Tennessee, for the Appellee, C.E.S.
OPINION
PROCEDURAL AND FACTUAL BACKGROUND
On September 27, 2006, L.L.S. gave birth to A.C.S.1 Mother was unmarried at the
time of the child’s birth. The birth certificate was caused to reflect child’s surname as that of
Mother. No evidence was presented that upon the child’s birth the Father requested that the child’s
surname be established as his. In connection with Father’s subsequent petition to establish parentage
for joint custody filed November 17, 2006, he requested, inter alia, that the child’s birth certificate
be amended such that the minor child’s surname be changed to that of Father. The Mother opposed
the proposed name change. An evidentiary hearing on the issue was conducted by the Referee of the
Juvenile Court for Davidson County, Tennessee, on August 2, 2007. On this issue, the Referee
ordered that the minor child’s surname be changed to that of the Father.
Following an appeal of the Referee’s decision, the Juvenile Court, by Special Judge,
conducted an evidentiary hearing on October 18, 2007. In affirming the Referee’s decision, the
Court ordered the child’s surname be changed to that of Father and that a new birth certificate be
issued to reflect such change. In support of its decision, the Juvenile Court included in its Order the
following findings:
The Court finds that there is a substantial relationship with the minor child
and the Father’s family and it is in the best interest of the minor child that he have the
Father’s last name of ... .
On appeal, we have not been provided with a transcript from the October 18, 2007
hearing. Instead, a statement of the evidence, approved by the Juvenile Court, has been filed. While
both Mother and Father submitted proposed statements of the evidence, the Juvenile Court approved
the statement submitted by Father with one exception. That statement of the evidence further
contains an account of the Court’s statement and ruling as follows:
Based on the evidence and testimony, the Judge stated that it is in the child’s
best interests for ... surname to be that of the father, ... , and that the father had
demonstrated a significant relationship with the minor child, that ... could tell that
the child had loving grandparents on both sides and loving parents from both sides,
and that based on these substantial relationships, that it was in the child’s best
interests to have the father’s last name of ... .
The sole issue on appeal therefore involves the Juvenile Court’s decision to change
the child’s surname from that of Mother to that of Father.
1
To protect the anonymity of the minor child, we refer to all parties using only their initials.
-2-
STANDARD OF REVIEW
The factual findings of the Juvenile Court are accorded a presumption of correctness,
and we will not overturn those factual findings unless the evidence preponderates against them. See
Tenn. R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001). With respect to legal
issues, our review is conducted “under a pure de novo standard of review, according no deference
to the conclusions of law made by the lower courts.” Southern Constructors, Inc. v. Loudon County
Bd. of Educ., 58 S.W.3d 706, 710 (Tenn. 2001).
APPLICABLE LAW AND ANALYSIS
Tennessee courts recognize that “the birth certificate of a child born to an unmarried
mother must reflect that the child’s surname is that of the mother unless both parents have requested
otherwise.” Barabas v. Rogers, 868 S.W.2d 283 (1993). For statutory authority, T.C.A. 68-3-
305(b)(1) provides in pertinent part as follows:
If the mother was not married at the time of either conception or birth or between
conception and birth, the name of the father shall not be entered on the certificate of
birth and all information pertaining to the father shall be omitted, and the surname
of the child shall be that of either:
(A) The surname of the mother;
(B) The mother’s maiden surname; or
(C) Any combination of the surnames listed in subdivisions (b)(1)(A) and
(b)(1)(B).
A court’s decision of whether to change the minor child’s surname is subject to an
analysis based upon concern for the child’s welfare as the court in Barabas, supra, explained:
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, 28 Cal. 3d 640, 620 P.2d 579, 582, 169
Cal. Rptr. 918 (Cal. 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.
-3-
Nastos, 105 Wash. 2d 24, 711 P.2d 314, 318 (Wash. 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 (Pa. Super. Ct. 1985); In re M.L.P., 621 S.W.2d 430, 431 (Tex. Ct. App.
1981).
The amount of proof required to justify the change is “not insubstantial.” Brown v.
Baird, 1997 Tenn.App. Lexis 704, 1997 WL 6338278 (Tenn.App. No. 01801-9704-JV-00148).
Minor inconvenience or embarrassment is insufficient. Halloran v. Kostka, 778 S.W.2d 454(Tenn.App. 1989).
The Father testified that it is a tradition in his family for a child to carry the father’s
surname. Father believes that the child will maintain an advantage in Father’s community if the
surname is changed. He further opines that the child will suffer harassment and embarrassment at
school if the child does not carry the Father’s surname. The Mother believes that if the child
maintains a surname different from hers, such circumstances will cause confusion and
embarrassment.
Upon a careful review of the evidence in the case at bar, there appears no proof that
a change of the child’s surname will effect a change in the child’s relationship with either parent.
The evidence supports a determination that neither the surname of Mother or of Father maintains a
higher degree of respect than the other within the community of the child’s residence. The Father
has not shown that using the Father’s surname will be any more beneficial to the child than using
the surname of Mother. Inasmuch, Father has failed to demonstrate that the child will encounter
difficulties or be subject to harassment or embarrassment if the surname remains that of Mother.
We are of the opinion that Father’s reasons presented in favor of changing the child’s
surname fall short of his carrying the burden of proof by a preponderance of the evidence.
Accordingly, we find that the record does not contain sufficient, competent evidence to support the
Juvenile Court’s conclusion that changing the child’s surname from that of Mother to that of Father
is in the child’s best interest.
CONCLUSION
The judgment of the Juvenile Court is reversed and this cause is remanded to the
Juvenile Court for further proceedings consistent with this Opinion and for collection of the costs
below. Costs on appeal are taxed to the Appellee, C.E.S., and his surety, for which execution may
issue, if necessary.
____________________________________
-4-
THOMAS R. FRIERSON, II, SP. JUDGE
-5-