Spero v. Heath ( 2004 )

Present: All the Justices
JESSICA WYNN SPERO AND ELLA MADISON SPERO, AN INFANT WHO SUES
BY JESSICA WYNN SPERO, HER MOTHER AND NEXT FRIEND
v. Record No. 030495 OPINION BY
JUSTICE DONALD W. LEMONS
DAVID TODD HEATH March 5, 2004
FROM THE CIRCUIT COURT OF HENRICO COUNTY
Gary A. Hicks, Judge
In this appeal, we consider whether a trial court erred
in determining that a name change was in the best interest of
a child, when the child bore the mother's surname and the
natural father petitioned the court to change the child's
surname to the father's.
Ella Madison Spero ("Ella"), born October 30, 2001, is
the daughter of David Todd Heath ("Heath") and Jessica Wynn
Spero ("Spero"). Heath and Spero were never married and ended
their relationship in 2001, before Ella's birth. Also before
Ella's birth, Spero told Heath that he was not Ella's father.
Consequently, Ella received the surname "Spero." A paternity
test, completed in January 2002, confirmed that Ella was
Heath's child.
Heath filed a petition to change Ella's surname. At the
hearing on the petition, Heath and Spero contradicted one
another concerning the amount, type, and quality of support
provided by Heath for Ella's care. Spero alleged that Heath
was a drug dealer and was planning to move to Amsterdam, which
Heath denied. Heath produced evidence that Spero had been
convicted of "driving under the influence of alcohol within
one year" of Ella's birth. Finally, both Heath's and Spero's
mothers testified about the effect, as they experienced it, of
having a different surname than their children.
At the conclusion of the evidence, the trial court found
"that it is in the best interest of the child that she have
the last name of the petitioner, David Todd Heath." Spero
filed a motion to reconsider. The trial court heard argument
on the motion but reaffirmed the prior judgment changing
Ella's surname to "Heath." The trial court suspended "the
effect" of the order until resolution of the expected appeal
to this Court. Spero appeals the adverse judgment of the
trial court.
We will consider the evidence in the light most favorable
to the respondent, Heath, the prevailing party below. In
Virginia, Code § 8.01-217 delineates the method for changing
the name of a minor. It requires that the person seeking the
name change "apply . . . to the circuit court of the county or
city in which the person whose name is to be changed resides."
It further requires reasonable notice to the parent who does
not seek the name change and a hearing to determine whether
the name change is in the best interest of the minor. Code
§ 8.01-217.
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The parent petitioning to change the surname of the minor
bears the burden of proving that the change is in the minor's
best interest. See May v. Grandy, 259 Va. 629, 632, 528
S.E.2d 105, 106 (2000); Rowland v. Shurbutt, 259 Va. 305, 308,
525 S.E.2d 917, 919 (2000); Beyah v. Shelton, 231 Va. 432,
434, 344 S.E.2d 909, 911 (1986); Flowers v. Cain, 218 Va. 234,
237, 237 S.E.2d 111, 113 (1977). The petitioning parent may
prove that the name change is in the best interest of the
minor by showing that:
1) The parent sharing his or her surname with the minor
has "abandoned the natural ties ordinarily existing
between parent and child,"
2) The parent sharing his or her surname with the minor
"has engaged in misconduct sufficient to embarrass
the [minor] in the continued use" of the parent's
name,
3) The minor "otherwise will suffer substantial
detriment" by bearing the surname he or she
currently bears, or
4) The minor "is of sufficient age and discretion to
make an intelligent choice and . . . desires that
[his or her] name be changed."
See, e.g., Flowers, 218 Va. at 236-37, 237 S.E.2d at 113. A
"change of name will not be authorized . . . merely to save
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. . . minor inconvenience or embarrassment" to the parent or
the minor. Id. at 237, 237 S.E.2d at 113.
Although our previous cases often use gender specific
terms in enunciating the test for determining whether a name
change is in the best interest of a child, that language
should not be read to mean that there is a presumption that a
child should have the father's surname or that the mother
always bears the burden of proof for or against a petition for
name change. Nothing in the language of the statute suggests
such a presumption. Under the statute, a petition for
changing a child's name must be considered on the particular
facts of the case before the court. The burden is upon the
petitioning party to "prove by satisfactory evidence that the
change is in the child's best interest." Rowland, 259 Va. at
308, 525 S.E.2d at 919; May, 259 Va. at 632, 528 S.E.2d at
106.
In this case, Heath, the parent petitioning to change
Ella's surname, did not offer evidence tending to show any of
the criteria required by Flowers. Spero's DUI conviction
within a year of Ella's birth does not rise to the level of
misconduct sufficient to embarrass the child in the continued
use of the parent's surname. The record does not reflect that
Ella will suffer any form of detriment by continuing to use
the surname "Spero." The record does not reflect that Spero
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has failed to care for Ella, nor that she has engaged in
misconduct sufficient to embarrass Ella in the continued use
of the surname "Spero." The testimony of Ella's grandmothers
fails to rise beyond a catalogue of minor inconveniences and
embarrassment. Based on the record before us, Heath has not
satisfied his burden of proof as the petitioning parent
because he has not offered sufficient evidence to show that a
name change is in Ella's best interest.
We hold that the trial court abused its discretion by
ordering the change in Ella's surname. Accordingly, we will
reverse the judgment of the trial court. The trial court's
order of December 12, 2002 will be vacated and the petition
for name change will be dismissed.
Reversed, vacated, and dismissed.
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