In Re the Name Change of John William Resnover and In Re the Name Change of John Arthur Herron

FOR PUBLICATION
ATTORNEYS FOR APPELLANTS: ATTORNEYS FOR THE STATE
OF INDIANA AS AMICUS CURIAE
CRYSTAL FRANCIS IN SUPPORT OF NEITHER PARTY:
TRACY PAPPAS
CARRIE LYNN GREGORY F. ZOELLER
Indianapolis, Indiana Attorney General of Indiana
THOMAS M. FISHER
Solicitor General of Indiana
Indianapolis, Indiana
ELIZABETH A. MURPHY
Indiana Bureau of Motor Vehicles
Indianapolis, Indiana
IN THE
FILED
Dec 05 2012, 9:31 am
COURT OF APPEALS OF INDIANA
CLERK
of the supreme court,
court of appeals and
tax court
IN RE THE NAME CHANGE OF )
JOHN WILLIAM RESNOVER, )
)
Appellant-Petitioner, )
)
And ) No. 49A02-1205-MI-364
)
IN RE THE NAME CHANGE OF )
JOHN ARTHUR HERRON, )
)
Appellant-Petitioner. )
APPEAL FROM THE MARION CIRCUIT COURT
The Honorable Louis F. Rosenberg, Judge
Cause No. 49C01-1110-MI-40823 & 49C01-1112-MI-47009
December 5, 2012
OPINION - FOR PUBLICATION
RILEY, Judge
STATEMENT OF THE CASE
In this consolidated case, Appellant-Petitioner, William Resnover (Resnover) and
Appellant-Petitioner, John Arthur Herron (Herron), appeal the trial court’s denial of their
petitions to change their names.
We reverse and remand for further proceedings.
ISSUE
Resnover and Herron raise two issues on appeal, one of which we find dispositive
and which we restate as: Whether the trial court erred when it required a valid driver’s
license or valid state identification card as a prerequisite to grant the petition for name
change pursuant to Ind. Code chapter 34-28-2.
FACTS AND PROCEDURAL HISTORY
Both appellants in this consolidated case cannot obtain a valid Indiana driver’s
license due to discrepancies between the names commonly used in their everyday lives
and the names listed on their birth certificates.
I. Resnover
Resnover was born on February 13, 1936 in Nashville, Tennessee, and is seventy-
six years old. He was born to his mother, Johnnie Mae Cheatham, and his birth
certificate lists his name as John Willie Cheatham. No father’s name is listed.
Throughout his life, Resnover believed his name to be John William Resnover. In the
past, state and federal agencies issued identification documents to him in that name,
including an Indiana driver’s license, a social security card, and a pension.
2
On February 14, 2008, Resnover’s driver’s license expired. When he attempted to
renew it some years later, the Bureau of Motor Vehicles (BMV) required him to present a
birth certificate in compliance with State laws implementing federal real ID standards, 49
U.S.C. § 30301 et seq. Upon the receipt of his birth certificate, he discovered that the
name he had been using during his entire life was different from the one listed on his
birth certificate. Because his birth certificate listed his name as John Willie Cheatham,
the BMV refused to issue him a current driver’s license or identification card.
On October 21, 2011, Resnover filed a petition to change his name in accordance
with Ind. Code ch. 34-28-2 et seq. On February 6, 2012, the trial court conducted a
hearing on Resnover’s petition. On April 4, 2012, the trial court denied the petition
because “ without a valid Indiana driver’s license or Indiana identification card, a
petitioner who is at least 17 years of age is unable to obtain a change of name in Indiana.”
(Appellant’s App. p. 4).
II. Herron
Herron was born on March 27, 1940 in Indianapolis, Indiana, and is seventy-two
years of age. His birth certificate lists his name as “Infant Male Payne.” (Herron’s App.
p. 12). His parents names are John and Margaret Payne. However, according to Herron,
his parents were never married and he believes Payne was his mother’s maiden name,
while his father’s last name was Herron. Herron’s siblings carry the name Herron.
Throughout his life, Herron has consistently used John Arthur Herron as his legal name.
He attended school under that name, obtained a social security card, and a selective
3
service card identifying him as Herron. He never applied for a driver’s license or
passport. Herron has a criminal record and was incarcerated under the name Herron.
Herron has been diagnosed with liver cancer and his course of treatment includes
radiation or chemotherapy. In 2011, he received a limited monthly income consisting of
social security benefits in the amount of $776 and must rely on Medicaid to pay his
treatment. Because Herron believed that he could not apply for Medicaid without a birth
certificate that confirmed his name and because the application of certain public services
requires a valid means of identification,1 Herron filed a petition for change of name on
December 12, 2011. On March 5, 2012, the trial court conducted a hearing on Herron’s
petition. On March 9, 2012, Herron filed a request to stay the ruling on his petition as
well as a petition to establish a public record of time and place of birth pursuant to Ind.
Code ch. 34-28-1 as an alternative to Ind. Code ch. 34-28-2 et seq. On April 10, 2012,
the trial court denied Herron’s petition to change his name due to his failure to provide
the court with a valid driver’s license or Indiana issued identification card. At the same
time, the trial court denied Herron’s petition to establish a public record of the time and
place of birth.
Both Resnover and Herron appealed. On June 18, 2012, we consolidated their
appeals. On August 2, 2012, the State of Indiana filed as Amicus Curiae in support of
neither party.
Additional facts will be provided as necessary.
1
Herron is now receiving Medicaid as he was found eligible despite his inability to provide a birth
certificate matching his name.
4
DISCUSSION AND DECISION
I. Standard of Review
When the trial court enters findings sua sponte, the specific findings control only
as to the issues they cover, while a general judgment standard applies to any issue upon
which the court has not found. Brinkmann v. Brinkmann, 772 N.E.2d 441, 444 (Ind. Ct.
App. 2002). The specific findings will not be set aside unless they are clearly erroneous,
and we will affirm the general judgment on any legal theory supported by the evidence.
Hanson v. Spolnik, 685 N.E.2d 71, 76 (Ind. Ct. App. 1997), trans. denied. A finding is
clearly erroneous when there are no facts or inferences drawn therefrom to support it. Id.
at 76-77. In reviewing the trial court’s findings, we neither reweigh the evidence nor
judge the credibility of the witnesses. Id. at 77. Rather, we consider only the evidence
and reasonable inferences drawn therefrom that support the findings. Id.II. Petition for Change of Name
“The purpose of a name is to identify the person.” Schofield v. Jennings, 68 Ind.
232, 234 (1879). It has long been the standing law of our state that:
By the common law, . . ., a full name consists of one Christian or given
name, and one surname or patronymic. The two, using the Christian name
first and the surname last, constitute the legal name of the person. . . . No
person is bound to accept his patronymic as a surname, nor his Christian
name as a given name, though the custom to do so is almost universal
amongst English-speaking people, who have inherited the common law. A
person may be known by any name in which he may contract, and in such
name he may sue and be sued, and by such name may be criminally
punished.
Id. at 234-35. Under common law, a person may lawfully change his or her name
without resort to any legal proceedings where it does not interfere with the rights of
5
others and is not done for a fraudulent purpose. Leone v. Commissioner, 933 N.E.2d
1244, 1252 (Ind. 2010). A person effects a common-law change of name by usage or
habit. Id. Therefore, the very nature of the name change means that it can be effected
without court approval. Such a system includes both the advantages of great flexibility
and the disadvantage of the difficulty in verifying a name change, especially when the
change occurs outside the traditional times in life, such as adoption, marriage, or divorce.
Id.In 1852, the Legislature instituted a new procedure for “an orderly record of the
change of name in order to avoid future confusion.” 2 R.S. 1852, Ch. VII §§ I-V (Gavin
and Hords, eds., 1862 ed.). In analyzing whether this legislative enactment of a common
law practice signaled the abrogation of the common law, our supreme court decided in In
re Hauptly, 312 N.E.2d 857, 859 (Ind. 1974) that Indiana courts must grant a name
change where no evidence of fraud exists but this does not mean that the State must
recognize an informal common law name change. Thus, only after a court grants this
imprimatur to the name change must a state agency recognize it. Leone, 933 N.E.2d at
1253. In other words, “under the common law only a statutorily authorized court order
gives legal sanction to a name change.” Id. at 1254.
While the courts have unique power to certify a name change, Hoosiers still may
refer to themselves by any name they like. Id. They may not, however, demand that
government agencies begin using their new names without a court order. Id. This dual
structure recognizes the reality that names serve multiple purposes, both private and
public. Id. As our supreme court pointed out in Leone:
6
The modern tendency toward use of government-issued identification in
both private and public settings may shrink the field governed by the
common law, but both common law and statutory processes have long
coexisted with respect to names, as they do in other fields of law. Statutes
obliging citizens to engage in some formality when they invoke
government processes by applying for benefits or identification cards
neither obliterate common law usage nor are they driven by them.
Id. at 1255.
For both Resnover and Herron—and no doubt numerous others similarly
situated—common law usage and Legislative enactment have reached a collision point
once again. In 2010, the Indiana General Assembly issued Public Law 61 amending the
procedures to effect a legal name change. The amendment imposed additional
requirements purported to “help reduce the amount of identity theft from people who
create new identities. It also would make is [sic] more difficult for illegal immigrants to
create new identities, since the documentation to prove a person’s current identity would
be much stricter.” (Press Release, Democratic Caucus, Cheatham Outlines Agenda for
2010 Legislative Session (Dec. 9, 2009)). Currently, the procedure to effect a name
change involves the filing of a petition with the trial court:
Filing petition; procedure for change of name of minor
Sec. 2. (a) The petition described in section 1 of this chapter must:
(1) if applicable, include the information required by section 2.5 of this
chapter;
(2) in the case of a petition filed by a person described in section 2.5 of this
chapter, be subscribed and sworn to (or affirmed):
(A) under the penalties of perjury; and
(B) before a notary public or other person authorized to administer
oaths; and
(3) be filed with the circuit court of the county in which the person resides.
(b) In the case of a parent or guardian who wishes to change the name of a
minor child, the petition must be verified, and it must state in detail the
7
reason the change is requested. In addition, except where a person’s
consent is not required under [I.C. §] 31-19-9, the written consent of a
parent, or the written consent of the guardian if both parents are dead, must
be filed with the petition.
(c) before a minor child’s name may be changed, the parents or guardian of
the child must be served with a copy of the petition as required by the
Indiana trial rules.
I.C. § 34-28-2-2 (emphasis added). The information which must be included in the
petition is detailed in subsection 2.5 and specifies:
Contents of petition
Sec. 2.5. (a) if a person petitioning for a change of name under this chapter
is at least seventeen (17) years of age, the person’s petition must include at
least the following information:
(1) The person’s date of birth.
(2) The person’s current address; and
(A) residence address; and
(B) if different than the person’s residence address, mailing address.
(3) The person’s valid:
(A) Indiana driver’s license number; or
(B) Indiana identification card (as described in [I.C. ch.] 9-24-16)
number.
(4) A list of all previous names used by the person.
(5) Proof that the person is a United States citizen.
(6) A statement concerning whether the person holds a valid United States
passport.
(7) A description of all judgments of criminal conviction of a felony under
the laws of any state or the United States that have been entered against the
person.
I.C. § 34-28-2-2.5(a).
Thus, Indiana Code section 34-28-2-2 is divided into three main parts: part (a)
relates to the filing procedure and contents for the petition to change a name; whereas
parts (b) and (c) provide guidelines for the name change of a minor child—which are not
applicable to the case before us. The third part of the name change procedure is enacted
8
in subsection 2.5, which details the supporting information required to effect a name
change, and which mandates, among other, the petitioner’s “Indiana driver’s license
number or Indiana identification card [] number.” See I.C. § 34-28-2-2.5(a)(3).
When Resnover and Herron presented themselves at the BMV requesting,
respectively, a driver’s license and an identification card in their common law names,
they were turned down because the birth certificates used to prove their identities
indicated a different legal name.2 Pursuant to BMV procedure, if the name on the
document is different, the applicant must supply documentary proof of a name change,
such as a marriage license or court order. See Ind. Admin. Code 7-1.1-3(b)(1)(K). After
petitioning the court to change their legal names to coincide with their common law
names, the trial court rejected Resnover’s and Herron’s petitions because they failed to
submit “a valid Indiana driver’s license or Indiana identification card,” citing I.C. § 34-
28-2-2.5. (Resnover’s App p. 4; Herron’s App. p. 5).
As such, both Resnover and Herron are in a dilemma. Unable to change their birth
certificates to their common law names means that they are unable to prove their
identities to receive a driver’s license or identification card. Without a valid driver’s
license or identity card even the most basic daily tasks present an insurmountable burden:
they cannot purchase certain over-the-counter allergy medicine that contains ephedrine or
pseudoephedrine, purchase alcohol or tobacco, they cannot enter federal facilities or
2
Pursuant to 140 Ind. Admin. Code 7-1.1-3(a), to obtain an Indiana driver’s license or identification card,
an applicant must submit documents to the BMV to prove his identity, lawful status in the United States,
Indiana residency, and his social security number. An applicant’s identity can be established by an
unexpired U.S. passport or passport card or by a certified birth certificate, and if applicable a certified
amended birth certificate showing a change in name, date of birth, or gender. See 140 Admin. Code 7-
1.1-3(b)(1)(A)-(B).
9
board a commercial airplane, and cannot receive free assistance with their income taxes.
In order to provide a solution to this conundrum, we have to interpret Indiana Code
section 34-28-2-2.5.
The interpretation of a statute is a legal question that is reviewed de novo. Sun
Life Assur. Co. of Canada v. Ind. Dept. of Ins., 868 N.E.2d 50, 55 (Ind. Ct. App. 2007),
trans. denied. Statutory interpretation is the responsibility of the court and within the
exclusive province of the judiciary. Id. The first and often the last step in interpreting a
statute is to examine the language of the statute. Id. When confronted with an
unambiguous statute, we do not apply any rules of statutory construction other than to
give the words and phrases of the statute their plain, ordinary, and usual meaning. Id.We review the statute as a whole and presume the legislature intended a logical
application of the language used in the statute, as to avoid unjust or absurd results. New
Albany Historic Preservation Comm’n v. Bradford Realty, Inc., 965 N.E.2d 79, 88 (Ind.
Ct. App. 2012).
In its Amicus Curiae Brief, the State suggests that the plain wording of the statute
merely requires a valid license number or identification number to support a petition for
name change, not an actual license or identification card. We agree. Indiana Code
section 34-28-2-2.5(a)(3) stipulates the inclusion in the petition for name change of “a
valid Indiana driver’s license number or Indiana identification card number.” By
requiring a valid driver’s license card or identification card, the trial court read into the
statute a non-existing prerequisite that imposed an impermissibly high burden on
Resnover and Herron.
10
An identification card number is the “[u]nique identification number” that must be
written on the front of an identification card issued under Indiana Code section 9-24-16-
3(b)(5). Similarly, a driver’s license number is the “unique identifying number of the
permit or license[.]” I.C. § 9-24-11-5(a)(7). Each number is exclusively associated with
the individual to whom it was issued to and does not cease to be valid simply because the
card itself has expired or is suspended. Once the number is assigned by the BMV to an
individual, the number becomes associated with that person and remains valid for
purposes of identification.
The practice of using a driver’s license number as identifying information is
commonplace in Indiana’s statutes. See, e.g., I.C. § 3-7-13-13(a) (upon registering to
vote, an individual must provide a driver’s license number); I.C. § 31-16-6-9(a)(1)(E)
(parents must furnish their driver’s license numbers when modifying a child support
order). Moreover, in Laker v. State, 869 N.E.2d 1216, 1219 (Ind. Ct. App. 2007), we
accepted the driver’s license number as “identifying information” leading to the
establishment of the driver’s identity.
Recently, the United States District Court for the Southern District of Indiana in a
factually similar case interpreted the statute to require that petitioner only provide a valid
license number or identification card number. Worley v. Waddell, 2012 WL 4794654(S.D. Ind. 2012). In Worley, the petitioner asserted federal due process arguments when
the BMV refused to issue him an identification card in his common law name. Id. at 1.
In discussing whether a state law remedy was available or was inadequate as part of
11
Worley’s procedural due process claim, the district court explicitly took judicial notice of
the proceedings in this consolidated case. Id. at 4.
A. Resnover
Interpreting the statute as we do today—requiring the submission of a driver’s
license number or identity card number—will solve the dilemma Resnover found himself
in. More importantly, during the court proceedings, Resnover had already presented the
trial court with a copy of his expired driver’s license, which included his unique license
number.
B. Herron
Although the State in its Amicus Curiae brief indicates that the record is
ambivalent as to whether Herron had ever received a driver’s license or identification
card, the trial court, in its Order, noted that Herron “never had an Indiana driving license
or an identification card issued by the BMV.” (Herron’s App. p. 4). During the
proceedings, Herron testified that the only identification he had was a social security card
and an identification issued by the Department of Correction, both of which were lost
when his billfold was stolen. Because Herron never applied for an Indiana driver’s
license or identification card, he was never assigned a number that must be included in
the petition when requesting the trial court for a change of name. Therefore, he will
never be able to amend the name on his birth certificate, a mandatory prerequisite to
establish the identity requirement for receiving an Indiana driver’s license or
identification card.
12
To avoid the rigid requirements of I.C. § 34-28-2-2.5, Herron suggests that we
interpret the statute in conjunction with its preceding section 2, which reads, in pertinent
part,
Filing petition; procedure for change of name of minor
Sec. 2. (a) The petition described in section 1 of this chapter must:
(1) if applicable, include the information required by section 2.5 of this
chapter;
I.C. § 34-28-2-2 (emphasis added). Seizing on the “if applicable” language of I.C. § 34-
28-2-2, Herron asserts that this language should be implicitly read in conjunction with
I.C. § 34-28-2-2.5, which is a subpart of I.C. § 34-28-2-2. As such, he maintains that a
petitioner, who is at least seventeen years of age, should only have to include his driver’s
license number or identification card number with his petition for name change, if it is
applicable. The State, as Amicus, opposes this interpretation, contending that it would
“gut the statute and improperly make the requirements of subsection 2.5 merely
discretionary.” (Amicus Br. p. 9).
The interrelationship between Indiana Code section 34-28-2-2 and its subsection
2.5, indicates that when filing a petition for name change, the petitioner must “if
applicable, include the information required by section 2.5 of this chapter.” See I.C.§ 34-
28-2-2. Mindful to give all words included in the statute their plain and ordinary
meaning, we cannot but interpret the “if applicable” language to indicate that if the
required documentation enumerated in subsection 2.5 cannot be submitted to the court,
the petitioner is relieved from the necessity to produce the documents. Construing the
statute otherwise would negate the “if applicable” language in I.C. § 34-28-2-2.
13
Although Section 2.5 propones the mandatory language that the petition “shall”
include these documents, we are mindful that “[w]hen the word ‘shall’ appears in a
statute, it is construed as mandatory rather than directory unless it appears clear from the
context or the purpose of the statute that the legislature intended a different meaning.”
United Rural Elec. Membership Corp. v. Indiana & Michigan Elec. Co., 549 N.E.2d
1019, 1022 (Ind. 1990). This is one of the rare instances where the Legislature intended a
directory language. If we were to follow Amicus’ suggestion and mandate a driver’s
license number or identification card number, it raises the question how a petitioner older
than seventeen, having never received a driver’s license or identity card will be able to
get his or her name changed on a birth certificate.3
In sum, today we hold that to effect a name change, a petitioner must submit with
the petition for a name change the documents requested in I.C. § 34-28-2-2.5—including
a driver’s license number or identification card number—if applicable. To be sure,
although we have decided that the language of subsection 2.5 does not carry a mandate,
but rather a directory intent, the trial court is still obliged to discern the absence of a
fraudulent purpose prior to granting a petitioner’s name change. We remand this
3
The State, as Amicus, proposes a potential solution for individuals similarly situated to Resnover and
Herron by suggesting that they are not barred from obtaining state-issued identification, but only state-
issued identification in their name of choice. The State recommends that Resnover obtains secondary
documents in the name listed on his birth certificate—Cheatham—that would allow him to obtain a
driver’s license, also in the name of Cheatham. Resnover could then use this license to seek a name
change to Resnover. If granted, Resnover could then change all of his identification documents back to
his original common law name. While this procedure is feasible, the State’s proposal is flawed. First,
Herron’s birth certificate reads “Infant Male”—surely, the State cannot advise Herron to seek
documentation using his birth certificate’s name. Second, Indiana law has long recognized that an
individual can change his name absent a fraudulent purpose. Clearly, the State’s suggested method could
be construed as perpetuating fraud if individuals are encouraged to obtain identification documents in
names that they have never used.
14
consolidated case to the trial court for further proceedings in accordance with this
holding.4
CONCLUSION
Based on the foregoing, we hold that the trial court trial court erred when it required a
valid driver’s license or valid state identification card as a prerequisite to grant the
petition for name change pursuant to Ind. Code chapter 34-28-2.
Reversed and remanded for further proceedings.
BAILEY, J. concurs
CRONE, J. concurs in part and dissents in part with separate opinion
4
Because we decide this consolidated case on statutory grounds, we do not need to reach Appellants’
constitutional challenge to their right to vote. See Ind. Wholsesale Wine & Liquor Co., Ins. v. State ex rel.
Ind. Alcoholic Beverage Comm’n, 695 N.E.2d 99, 107 (Ind. 1998).
15
IN THE
COURT OF APPEALS OF INDIANA
IN RE THE NAME CHANGE OF )
JOHN WILLIAM RESNOVER, )
)
Appellant-Petitioner, )
)
And ) No. 49A02-1205-MI-364
)
IN RE THE NAME CHANGE OF )
JOHN ARTHUR HERRON, )
)
Appellant-Petitioner. )
CRONE, Judge, concurring in part and dissenting in part
I concur in the majority’s disposition of Resnover’s appeal. Indiana Code Section
34-28-2-2.5(a)(3) requires only a valid Indiana driver’s license number or Indiana
identification card number, the former of which Resnover apparently has and thus may
use to petition for a name change.
As for Herron, I respectfully disagree with the majority’s interpretation of “if
applicable” in Indiana Code Section 34-28-2-2(a)(1) and therefore disagree with its
conclusion that Herron is “relieved from the necessity to produce the documents”
specified in Indiana Code Section 34-28-2-2.5. Slip op. at 13. Like the State, I believe
16
that this interpretation “gut[s] the statute and improperly make[s] the requirements of
subsection 2.5 merely discretionary.” Amicus Br. at 9.
“Statutes relating to the same general subject matter ‘are in pari materia [on the
same subject] and should be construed together so as to produce a harmonious statutory
scheme.’” Klotz v. Hoyt, 900 N.E.2d 1, 5 (Ind. 2009) (quoting Sanders v. State, 466
N.E.2d 424, 428 (Ind. 1984)). “The legislature is presumed to have intended the
language used in the statute to be applied logically and not to bring about an unjust or
absurd result.” Bd. of Comm’rs of Hendricks Cnty. v. Town of Plainfield, 909 N.E.2d
480, 489-90 (Ind. Ct. App. 2009). In my view, a plain reading of both statutes indicates
that the “if applicable” in Indiana Code Section 34-28-2-2(a) refers to the age
requirement of Indiana Code Section 34-28-2-2.5(a) and not to the information required
by that statute. In other words, if a person petitioning for a name change is at least
seventeen years of age, then Indiana Code Section 34-28-2-2.5 is applicable, and
therefore the petition “must” include all of the information required by that statute
pursuant to both Indiana Code Section 34-28-2-2(a) and Indiana Code Section 34-28-2-
2.5(a). And, absent any legislative indication to the contrary, “must” means “must.” 5
According to Indiana Code Section 34-28-2-2.5(a)(3), a petition for name change
“must” include the person’s valid Indiana driver’s license number or Indiana
identification card number.6 I respectfully disagree with the majority’s unsupported
5
The majority uses the word “shall,” which does not appear in either statute.
6
If Herron once had an Indiana identification card, as his equivocal testimony suggests, and if the
number on that card was valid, then he could satisfy Indiana Code Section 34-28-2-2.5(a)(3).
17
assertion that Herron “will never be able to amend the name on his birth certificate, a
mandatory prerequisite to establish the identity for receiving an Indiana driver’s license
or identification card.” Slip op. at 12. The State suggests (and Herron himself does not
deny) that he could use his birth certificate “to obtain legitimate documentation of
residency and address” and correct the name on his social security card to reflect his birth
certificate name (which, although unusual, is not alleged to be legally deficient in any
way). Amicus Br. at 16. He could then use those documents to obtain an Indiana
driver’s license or identification card bearing his birth certificate name and petition for a
name change. If the petition is granted, he could obtain new official documents bearing
his familiar name. Herron’s suggestion that this procedure would unduly burden any of
his constitutional rights is unsupported by relevant legal authority and therefore
unconvincing. In sum, then, I would affirm the denial of Herron’s petition for name
change.
18