Brittingham v. Dattilio

Mikell, Presiding Judge.

Cortney Brittingham brings this pro se appeal from the trial court’s order changing her son’s surname to that of the child’s father, Terry Dattilio. Brittingham argues that Dattilio’s petition to change the child’s name was not verified, that she received insufficient notice of the petition and did not consent to the change, and that Dattilio did not comply with applicable publication requirements. We find no error and affirm.

A trial court “has broad discretion ... to change the name of a child, and the court’s decision will not be reversed unless it clearly abuses its discretion by ignoring the best interests of the child.”¹

So viewed, the record shows that in December 2009, having moved to Georgia the previous year, Brittingham began proceedings in DeKalb County Superior Court to domesticate New Jersey court orders as to custody of the unmarried couple’s then-two-year-old son. In July 2011, the trial court entered temporary orders modifying the New Jersey orders. In August 2011, Dattilio moved to an apartment near the home of Brittingham and the child. On September 29, 2011, the trial court set a final hearing for December 1, 2011.

In the meantime, on November 7, 2011, Dattilio filed a counterclaim to change the child’s surname. At the final hearing, Dattilio testified that his son had told him that he wanted to be “just like daddy” and that he wanted “to be a Dattilio.” Brittingham did not raise any procedural objections concerning the father’s name change petition at the hearing. Instead, she testified that she had seen the child use Dattilio as his surname and that “it’s upsetting to him to be so confused” about his last name.

Brittingham argues that the trial court erred when it ordered the name change because Dattilio has not complied with the procedural requirements of OCGA § 19-12-1. Specifically, Brittingham asserts that Dattilio did not obtain her consent, did not verify his counterclaim, and did not serve her with a copy of that pleading, either personally or by publication.²

Dattilio served his counterclaim for name change by mail some weeks before the final hearing, and Brittingham has not disputed that she had actual notice of the pleading well before that event.³ In any event, however, Brittingham neither filed her procedural objections in writing nor raised them at the final hearing; instead, she litigated the merits of the name change. Because Brittingham litigated the issue of the name change in the trial court without raising any procedural objections, she has waived consideration of those objections on appeal.⁴ It also appears that the trial court had some evidence before it, including the father’s testimony and the mother’s admission that the child had used the father’s surname and needed finality on the subject, that adopting the father’s surname would be in the best interests of the child. It follows that the trial court did not abuse its discretion when it ordered the name change.⁵

Judgment affirmed.

Miller, J., concurs. Ray, J., concurs specially.

1 (Citation, punctuation and footnote omitted.) Carden v. Warren, 269 Ga. App. 275, 277 (2) (a) (603 SE2d 769) (2004).

2 See OCGA § 19-12-1 (a) (petition for name change “shall be verified by the petitioner”); (b) (requiring publication “[w]ithin seven days of the filing of the petition” in “the official legal organ of the county [in which the petition is brought] once a week for four weeks”); (c) (“If the petition seeks to change the name of a minor child, the written consent of his parent or parents if they are living and have not abandoned the child . . . shall be filed with the petition”); (d) (requiring personal service “[i]f the parent or parents reside within this state,. . . except that if the location or address of the parent is unknown, service of the petition on the parent shall be made by publication as provided in this Code section”).

3 Compare Brown v. Waters, 208 Ga. App. 866 (432 SE2d 817) (1993) (trial court erred in granting petition to change child’s name when incarcerated father raised objections including lack of personal service and when trial court granted the petition without holding a hearing).

4 See Carden, supra at 278 (3); Howington v. Howington, 281 Ga. 242, 244 (2) (637 SE2d 389) (2006) (wife who permitted issue not raised in pleadings to be litigated at hearing had waived any objections); compare In re Scott, 288 Ga. App. 374, 375 (654 SE2d 221) (2007) (trial court erred in denying petition for name change without holding a hearing).

5 See Carden, supra at 278 (2) (a) (trial court did not abuse its discretion when it granted a petition for name change).