In Re the Marriage of Killman

Brazil, C.J.,

concurring and dissenting: I concur with the majority’s determination that the trial court had jurisdiction and that this matter should be remanded for rehearing. However, I respectfully dissent from the majority’s conclusion that the trial court had jurisdiction to change the name of the minor child.

Clearly, K.S.A. 1996 Supp. 60-1610 does not confer upon the court the authority to change the names of minor children of the marriage. In fact, the inclusion of a change of name provision for either party, together with the exclusion of any such provision for children and the absence of any supporting case law in Kansas, strongly militates against such a conclusion.

The majority relies on In re Marriage of Gulsvig, 498 N.W.2d 725, 728 (Iowa 1993). However, the Iowa court did not consider the principle of expressio unius est exclusio alterius.

Other jurisdictions have not allowed a name change of a minor child in dissolution proceedings. See, e.g., Mayor v. Mayor, 17 Conn. App. 627, 554 A.2d 1109 (1989). Connecticut, like Kansas, statutorily allows for the change of either spouse’s name incidental to dissolution of marriage in addition to its general change of name statute. 17 Conn. App. at 629-30. The court noted that the general nature of the change of name statute compared to the specific language of the dissolution statute limiting the change of name to a party in holding that the legislature had clearly intended to allow only a change of a party’s name incidental to divorce. See also Lone Wolf v. Lone Wolf, 741 P.2d 1187, 1192 (Alaska 1987) (minor child is not a party to divorce proceeding); Viola v. Fundrella 241 N.J. Super. 304, 308, 574 A.2d 1036 (1990) (no reference to changing surname of child in dissolution statute implies no legislative intent); In re Marriage of Hurta, 25 Wash. App. 95, 96, 605 P.2d 1278 (1979) (no provision in dissolution statutes for change of a child’s name).

Our court has recognized that a minor may file a petition, through a next friend, to obtain a change of name pursuant to K.S.A. 60-1401 et seq. In re Application to Change Name, 10 Kan. App. 2d 625, 706 P.2d 480 (1985).

The existence of this statutory authority is yet another reason why the court should not infer jurisdiction under K.S.A. 1996 Supp. 60-1610.

I would find that the trial court lacked jurisdiction to change the minor’s name in this divorce action.