In re Carol A. Boardman

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2017 ME 131 Docket: Cum-16-421
Submitted
On Briefs: May 25, 2017
Decided: June 27, 2017
Panel: SAUFLEY, C.J., and ALEXANDER, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
IN RE CAROL A. BOARDMAN
PER CURIAM
[¶1] Carol A. Boardman appeals from a decision of the Cumberland
County Probate Court (Mazziotti, J.) denying her petition for a name change
entered after a hearing. Boardman contends that the court erred by
concluding that the potential effect of the name change—others’
misunderstanding of Boardman’s marital status—does not demonstrate a
purpose “of defrauding another person or entity” that supports the court’s
denial of the petition.1 18-A M.R.S. ¶ 1-701(f) (2015).2 We agree with
Boardman, and we therefore vacate the judgment.
1 We also received two briefs of amicus curiae in this matter—one from Kimberly A. Fredette, a
similarly situated litigant, and one from the GLBTQ Legal Advocates & Defenders, the ALCU of
Maine, EqualityMaine, and the Trans Youth Equality Foundation. See M.R. App. P. 9(e).
2 Section 1-701 has since been amended. P.L. 2015, ch. 460, § 5 (effective July 29, 2016);
see infra n.3.
2
I. BACKGROUND
[¶2] On June 17, 2016, Carol A. Boardman filed in the Cumberland
County Probate Court an unopposed petition and affidavit seeking to change
her name to Carol A. Currier. In her accompanying affidavit, Boardman
attested to four facts as follows: (1) “I certify that I have notified . . . [a]ny adult
person who is a relative or with whom I live or work or who is a blood relative
of a person with whom I live who has the same name which I am seeking to
adopt”; (2) “I have no minor children”; (3) “I am not involved in any
bankruptcy proceedings or arrangements among creditors in which my debts
to others are being affected, nor do I reasonably anticipate that such
proceedings or arrangements are about to begin”; and (4) “I know of no
person who has or has reason to have any objection to the change of name I
am seeking.”
[¶3] The court conducted a hearing on the petition on August 18, 2016,
during which it inquired as to whether Currier was Boardman’s “maiden”
name. Boardman responded that Currier was not her original family name,
but was instead the last name of her friend, and that her husband had died in
2013 and she wanted a “fresh start.” The court informed Boardman that to
allow her to take her friend's last name would be a “deception” in that it
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would falsely suggest to others that she and her friend are married. The court
explained, “So, if somebody were to extend credit to you, let you sign a lease,
give you access to records, they would do so under the misapprehension that
you were a married couple, but you’re not.” When Boardman asked, “What
am I supposed to do?” the court replied, “Get married. That’s your solution,
I’m afraid.” The court denied the petition, concluding, “Boardman seeks to
change her name to the surname of her partner. She admits that by doing so
will give the public impression they are a married couple and thus a false
impression.” Boardman appeals. See 18-A M.R.S. § 1-308 (2016); M.R. App. P.
2(b)(3).
II. DISCUSSION
[¶4] At the time Boardman filed her petition, the name change statute
in effect was 18-A M.R.S. § 1-701 (2015).3 Section 1-701 provides that a court
3 The applicable version of the name change statute provided in its entirety is as follows:
§ 1-701. Petition to change name
(a) If a person desires to have that person’s name changed, the person may
petition the judge of probate in the county where the person resides. If the person is
a minor, the person’s legal custodian may petition in the person’s behalf.
(b) The judge, after due notice, may change the name of the person. To
protect the person’s safety, the judge may limit the notice required if the person
shows by a preponderance of the evidence that:
(1) The person is a victim of abuse; and
(2) The person is currently in reasonable fear of the person’s safety.
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may grant a name change when a “person [who] desires to have that person’s
name changed” files a petition in the county in which she resides and provides
“due notice” of the request along with a forty-dollar fee. 1 M.R.S. § 1-701(a),
(b), (d). The court may also order the petitioner to undergo background
checks to verify criminal history, motor vehicle history, and credit history.
1 M.R.S. § 1-701(e). Section 1-701 further names the limited circumstances in
which a name change may not be granted: “The judge may not change the
name of the person if the judge has reason to believe that the person is
seeking the name change for purposes of defrauding another person or entity
or for purposes otherwise contrary to the public interest.” 1 M.R.S. § 1-701(f).
(c) The judge shall make and preserve a record of the name change. If the
judge limited the notice required under subsection (b), the judge may seal the
records of the name change.
(d) The fee for filing the name change petition is $40.
(e) The judge may require the person seeking a name change to undergo
one or more of the following background checks: a criminal history record check; a
motor vehicle record check; or a credit check. The judge may require the person to
pay the cost of each background check required.
(f) The judge may not change the name of the person if the judge has reason
to believe that the person is seeking the name change for purposes of defrauding
another person or entity or for purposes otherwise contrary to the public interest.
18-A M.R.S. § 1-701 (2015). The 2015 amendment to the statute gives the District Court
jurisdiction over a name change for a minor when “there is a proceeding involving custody or other
parental rights with respect to [a] minor pending in the District Court.” P.L. 2015, ch. 460, § 5
(effective July 29, 2016) (codified at 18-A M.R.S. § 1-701(a) (2016)). That amendment is not
relevant to the current appeal.
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[¶5] Here, the record establishes, and there is no dispute, that
Boardman filed a petition in the Probate Court of the county in which she
resides, see 18-A M.R.S. § 1-701(a); Boardman is not a minor, see 18-A M.R.S.
§ 1-701(a); no parental rights dispute regarding a minor was pending,
see 18-A M.R.S. § 1-701(a); “due notice” of the petition was provided, see
18-A M.R.S. § 1-701(b); Boardman paid the required fee with her petition, see
18-A M.R.S. § 1-701(d); and the court did not require Boardman to submit to
any background checks, see 18-A M.R.S. § 1-701(e). See In re A.M.B., 2010 ME
54, ¶¶ 2, 3, 5, 997 A.2d 754. No one appeared before the Probate Court to
oppose her petition.
[¶6] The Probate Court determined, however, that granting her the
requested name change might mislead others to believe that she is married to
a man who has the same last name she wishes to adopt. This
misunderstanding, the court apparently concluded, constitutes the type of
fraud that precludes the grant of a name change pursuant to section 1-701(f).
[¶7] Boardman challenges this interpretation of the name change
statute as a matter of law. Although we generally review for an abuse of
discretion the court’s denial of a requested name change, In re A.M.B.,
2010 ME 54, ¶ 4, 997 A.2d 754, because this matter regards the court’s legal
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interpretation of section 1-701, we review de novo the meaning of the statute
by examining its plain and unambiguous language, see Estate of Gray, 2014 ME
119, ¶ 9, 103 A.3d 212; Adoption of M.A., 2007 ME 123, ¶¶ 6, 9, 930 A.2d 1088.
[¶8] Name changes are to be liberally granted. See 18-A M.R.S. § 1-102
(2016) (stating that the Probate Code, of which section 1-701 is a part, “shall
be liberally construed and applied to promote its underlying purposes and
policies”); Adoption of M.A., 2007 ME 123, ¶ 25, 930 A.2d 1088. By identifying
those limited instances in which “[t]he judge may not change the name of the
person,” section 1-701 suggests that a name change must be granted in all
other circumstances. The statute provides only two bases for denying a
requested name change—when it is sought “for purposes of defrauding
another person or entity” or when it is sought “for purposes otherwise
contrary to the public interest.” 18-A M.R.S. § 1-701(f). As we have said,
“[t]he main purpose of the statute . . . is to provide petitioners with the
certainty of a judicially-sanctioned name change, as long as the petition is not
submitted with fraudulent intent and the change of name does not interfere
with the rights of others.” In re A.M.B., 2010 ME 54, ¶ 4, 997 A.2d 754.
[¶9] Although section 1-701 does not define what it means to
“defraud[],” that term is a legal term of art that has long referred to a
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“depriv[ation] of some right, interest or property by a deceitful device.” State
v. Vandenburg, 2 A.2d 916, 919 (Del. Gen. Sess. Ct. 1938) (quotation marks
omitted); see Motley v. Sawyer, 38 Me. 68, 73 (1854); Moody v. Burton, 27 Me.
427, 436 (1847); Webster’s Third New International Dictionary 593 (2002).
In the civil context, for example, the tort of fraudulent misrepresentation is
proved with evidence
(1) that the defendant made a false representation, (2) of a
material fact, (3) with knowledge of its falsity or in reckless
disregard of whether it is true or false, (4) for the purpose of
inducing the plaintiff to act in reliance upon it, and, (5) the
plaintiff justifiably relied upon the representation as true and
acted upon it to the plaintiff’s damage.
Rand v. Bath Iron Works Corp., 2003 ME 122, ¶ 9, 832 A.2d 771. Similarly, the
elements of fraudulent concealment are “(1) a failure to disclose; (2) a
material fact; (3) where a legal or equitable duty to disclose exists; (4) with
the intention of inducing another to act or to refrain from acting in reliance on
the non-disclosure; and (5) which is in fact relied upon to the aggrieved
party’s detriment.” Picher v. Roman Catholic Bishop of Portland, 2009 ME 67,
¶ 30, 974 A.2d 286. In terms of negotiable instruments as well, a “[f]raudulent
indorsement” is one in which an instrument is forged. 11 M.R.S.
§ 3-1405(1)(b) (2016).
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[¶10] Similarly, in the criminal context, “[a] person is guilty of
defrauding a creditor if . . . [t]he person destroys, removes, conceals,
encumbers, transfers or otherwise deals with property subject to a security
interest . . . with the intent to hinder enforcement of that interest.” 17-A M.R.S.
§ 902(1), (1)(A) (2016). Home repair fraud is committed by “[i]ntentionally
misrepresent[ing] a material fact relating to the terms of the agreement or
contract or misrepresent[ing] a preexisting or existing condition of any
portion of the property that is the subject of the home repair services.”
17-A M.R.S. § 908(1)(A) (2016).
[¶11] We interpret the plain language of “defraud[]” in section 1-701
consistently with these definitions. Although the court expressed concern
that Boardman’s name change could lead potential creditors, lessors, or
record holders to believe that she is married, unless and until there is some
evidence that Boardman has taken or intends to take some action to avoid
financial or legal obligations, or to represent that she is married in
circumstances that cause another to justifiably rely on that representation to
his or her detriment, no fraud is implicated. See In re McIntyre, 715 A.2d 400,
402 (Pa. 1998) (stating that the “necessity for judicial involvement in name
change petition centers on governmental concerns that individuals not alter
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their identity to avoid financial obligations”). The record in this matter is
devoid of any such evidence.
[¶12] The Probate Court’s reading of section 1-701 also creates absurd
results that do not comport with other provisions of Maine law. See Curtis v.
Medeiros, 2016 ME 180, ¶ 10, 152 A.3d 605 (stating that courts must avoid
any interpretation of plain language that creates absurd results). The Maine
Human Rights Act, 5 M.R.S. §§ 4551-4634 (2016), already precludes
discrimination based on marital status, including in the provision of credit and
in the provision of housing. 5 M.R.S. §§ 4552, 4595-4596. Moreover,
unmarried domestic partners are already afforded various legal benefits,
regardless of their names. See 22 M.R.S. § 2710 (2016) (establishing the
domestic partner registry); see also 15 M.R.S. § 321(1) (2016) (including
domestic partners within the definition of “family or household members” for
protective order purposes); 18-A M.R.S. § 2-102 (2016) (allowing domestic
partners to inherit under the laws of intestacy); 24-A M.R.S. § 2741-A (2016)
(requiring that health insurers make coverage available for domestic
partners). Thus, by law, it cannot be marital status that dictates the
availability of credit or leasing options—the transactions about which the
Probate Court expressed concern.
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[¶13] Moreover, as a practical matter, given the variety of naming
conventions in modern society, having the same last name no more indicates
that a couple is married than having a different last name indicates that a
couple is unmarried. Indeed, more than forty years ago, we struck down this
concomitant notion in holding that a name change may not be denied on the
ground that it misleads others to believe that a person is unmarried when that
person is in fact married. In In re Reben, a woman took her husband’s last
name when the couple married but she later filed a petition to return to her
birth name even though she and her husband had no plans to divorce.
342 A.2d 688, 688-89 (Me. 1975). The Probate Court denied her petition. Id.
at 689. Because, as here, there was no evidence in In re Reben that the
petitioner had any fraudulent intent in seeking the name change, we declared
the court’s denial of the name change petition an abuse of discretion.4 Id. at
689, 695.
4 Other jurisdictions have reached similar conclusions in a variety of circumstances. See, e.g.,
In re Miller, 824 A.2d 1207, 1208, 1211-14 (Pa. Super. Ct. 2003) (holding that a woman was not
precluded from adopting the last name of her “life companion”); In re Bicknell, 771 N.E.2d 846,
847-49 (Ohio 2002) (holding that an unmarried same-sex couple wishing to adopt the same last
name is not a fraudulent basis on which to deny a requested name change); see also In re Bacharach,
780 A.2d 579, 585 (N.J. Super. Ct. App. Div. 2001) (same); In re McIntyre, 715 A.2d 400, 401-03
(Pa. 1998) (requiring the trial court to grant a name change from a male to a female name in
anticipation of the petitioner’s sex-reassignment surgery and holding that any confusion about the
petitioner’s gender created among others as a result of the name change did not constitute the
financial fraud with which the name change statute was primarily concerned); In re Brown,
770 S.E.2d 494, 495, 497-98 (Va. 2015) (requiring the trial court to grant the name change petition
of a federal prison inmate with gender identity disorder in the absence of any evidence of fraud).
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[¶14] On this appeal, we conclude that a person’s potential
misunderstanding of another person’s marital status, without more, does not
qualify as a fraud that precludes the otherwise liberal grant of name change
petitions in the Probate Court. Given this conclusion, and in the absence of
any dispute that Boardman met all the requirements for the change of her last
name imposed by section 1-701, we vacate the court’s denial of Boardman’s
petition and remand the matter with instructions to enter a judgment
granting Boardman’s petition for a name change.
The entry is:
Judgment vacated. Remanded with instructions
to enter a judgment granting Boardman’s name
change petition.
James S. Mundy, Esq., Whitney, Mundy & Mundy, South Berwick, for appellant
Carol Ann Boardman
Kimberly Ann Fredette, amicus curiae pro se
Mary L. Bonauto, Esq., and Patience Crozier, Esq., GLBTQ Legal Advocates &
Defenders, Boston, for amici curiae GLBTQ Legal Advocates & Defenders,
ACLU of Maine Foundation, EqualityMaine, and Trans Youth Equality
Foundation
Cumberland County Probate Court docket number 2016-868
FOR CLERK REFERENCE ONLY