In Re FELDHAUS. in Re BAUMERT

FOURTH DIVISION
ELLINGTON, P. J.,
BRANCH and MERCIER, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
January 20, 2017
In the Court of Appeals of Georgia
A16A1770. IN RE FELDHAUS.
A17A0041. IN RE BAUMERT.
BRANCH, Judge.
In July 2015, the person formerly known as Rebecca Elizabeth Feldhaus
brought the instant petition seeking a change of name to “Rowan Elijah Feldhaus.”
In January 2016, the person formerly known as Delphine Renee Baumert filed a
petition seeking a change of name to “Andrew Norman Baumert.” After separate
hearings, the Columbia County trial court denied both petitions on grounds including
that both name changes would “confuse and mislead” the public and amounted to “a
type of fraud.” On these consolidated appeals, Feldhaus and Baumert argue that in the
absence of any evidence that they were seeking to change their names for fraudulent
or other improper purposes, the trial court abused its discretion when it denied their
petitions. We agree and reverse in both cases.
“[W]hether a judge of the superior court shall grant or refuse a proper
application for a change in name, upon objection and after a hearing, involves the
exercise of a sound legal discretion.” Johnson v. Coggins, 124 Ga. App. 603, 604
(184 SE2d 696) (1971). We thus review a trial court’s decision on a petition for name
change only for an abuse of discretion. Id.The material facts are not in dispute. Both appellants brought their petitions for
name change under OCGA § 19-12-1 (a), which provides that any person seeking to
change his or her name, or the name of the petitioner’s child, “may present a petition
to the superior court of the county of his residence, setting forth fully and particularly
the reasons why the change is asked, which petition shall be verified by the
petitioner.” Feldhaus’s verified petition requested a change of name to “Rowan Elijah
Feldhaus,” and included an affidavit that Feldhaus is known as such by family, peers,
and coworkers. At the hearing, Feldhaus testified that there was no intent of
defrauding creditors by means of the name change. Baumert’s verified petition
requested a change of name to “Andrew Norman Baumert,” and evidence at the
hearing showed that Baumert is known as “Andrew” or “Andy” by family and peers.
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As the trial court later noted, there was no evidence before it that Baumert’s petition
was filed for the purposes of defrauding anyone.
Although Feldhaus’s petition was unopposed, the trial court found that by
“claiming to be a person of the opposite gender” from his or her birth gender, a
transgender person “presents problems for the person and the general public” in that
his or her assumed name could “confuse and mislead . . . emergency personnel,
actuaries, insurance underwriters, and other businesses and relationships where the
sex of an individual is relevant.” The court added that “third parties should not have
to contend with the quandary, predicament and dilemma of a person who presents as
a male, but who has an obviously female name[.]” The court also distinguished
between Feldhaus’s proposed first name, “Rowan,” which it found to be “gender
neutral,” and “Elijah,” which it found not to be gender neutral. The court then
concluded that “[n]ame changes which allow a person to assume the role of a person
of the opposite sex are, in effect, a type of fraud on the general public” and that such
changes “offend the sensibilities and mores of a substantial portion of the citizens of
this state.” It therefore denied Feldhaus’s petition.
Although Baumert’s petition was also unopposed, the trial court entered an
order finding that a transgender person who “claim[s] to be a person of the opposite
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gender” from their biological gender “presents problems for the person and the
general public.” The court noted that “third parties should not have to contend with
the quandary, predicament, and dilemma of a person who presents as a male, but who
has an obviously female name, and vice versa,” and that Baumert had rejected the
court’s offer of a “gender-neutral” name. The court then repeated that “name changes
which allow a person to assume the role of a person of the opposite sex are, in effect,
a type of fraud on the general public” and that such changes “offend the sensibilities
and mores of a substantial portion of the citizens of this state.” The court therefore
denied Baumert’s petition.
1. Feldhaus and Baumert argue that the trial court abused its discretion in
denying their petitions in the absence of any evidence that they had any fraudulent
purpose in seeking a name change. We agree.
OCGA § 19-12-1 et seq. establishes the procedure by which a person may
change his or her name, including the filing of a petition and notice by publication.
OCGA § 19-12-4 further provides that “[n]othing contained in this chapter shall
authorize any person to change his name with a view to deprive another fraudulently
of any right under the law.” The Supreme Court of Georgia has long held, moreover,
that “in the absence of a statute or judicial adjudication to the contrary, there is
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nothing in the law prohibiting a person from taking or assuming another name, so
long as he does not assume a name for the purpose of defrauding other persons
through a mistake of identity.” Fulghum v. Paul, 229 Ga. 463, 463 (192 SE2d 376)
(1972) (citation and punctuation omitted). In the case of In re Mullinax, 152 Ga. App.
215 (262 SE2d 540) (1979), for example, a married woman petitioned the trial court
to restore her maiden name, and the trial judge denied the petition on the basis of his
“belief” that the result of a mother and her children “bearing different surnames”
would be that the child would be “necessarily confused and embarrassed.” Id. at 215.
Our opinion noted, however, that there was “no evidence that the change [was]
intended to defraud anyone.” Id. at 215. We then held, consistent with the statutory
scheme, that a trial court’s conclusions about any person’s “confusion” or
“embarrassment” was “not a valid basis for denying” a petition for a name change.
Id. We noted further that “[n]o objections were made at the hearing to the proposed
change.” Id. Accordingly, the proper result was to remand the case “with direction to
enter an order granting appellant’s petition.” Id. We have affirmed the denial of a
petition for a name change only when some evidence at the hearing on the petition
showed that the petitioner was acting under an “improper motive,” such as
intentionally assuming another person’s name for the purpose of embarrassing that
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person or avoiding the petitioner’s own criminal past. See, e.g., In re Serpentfoot, 285
Ga. App. 325, 327 (1) (646 SE2d 267) (2007) (affirming denial of petition to change
name when some evidence showed that petitioner had an “improper motive” in
seeking to change her name to that of a local newspaper publisher whose newspaper
had published unflattering news stories about the petitioner); In re Redding, 218 Ga.
App. 376 (461 SE2d 558) (1995) (affirming denial of petition to change name when
some evidence showed that petitioner’s purpose in seeking the change was “to
conceal his true identity and to disassociate himself [from] his criminal past”)
(citation omitted).
Here, Feldhaus and Baumert followed the procedure for name change laid out
in OCGA § 19-12-1. There was no evidence before the trial court to authorize a
conclusion that either of them were acting with any improper motive against any
specific person. OCGA § 19-12-4; Fulghum, 229 Ga. at 463. Further, no objections
were raised at the hearings on the petitions. Mullinax, 152 Ga. App. at 215. It follows
that the trial court abused its discretion when it denied these petitions. The trial
court’s orders are therefore reversed, and the court is directed on remand to enter an
order changing petitioners’ names to “Rowan Elijah Feldhaus” and “Andrew Norman
Baumert” respectively.
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2. In light of our decision in Division 1, we need not address petitioners’
assertions as to the unconstitutionality of the trial court’s orders.
Judgments reversed and cases remanded with direction. Ellington, P. J., and
Mercier, J., concur.
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