T.W. v. D.A.

J-A23026-15
2015 Pa. Super. 233
T.W. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
D.A.
Appellee No. 336 WDA 2015
Appeal from the Order February 20, 2015
In the Court of Common Pleas of Allegheny County
Family Court at No(s): FD-13-6115-002
*****
T.W. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
D.A.
Appellee No. 337 WDA 2015
Appeal from the Order January 27, 2015
In the Court of Common Pleas of Allegheny County
Family Court at No(s): FD-13-6115-002
BEFORE: GANTMAN, P.J., LAZARUS, J., and MUSMANNO, J.
OPINION BY LAZARUS, J.: FILED NOVEMBER 10, 2015
T.W. (“Father”) appeals from the order entered in the Court of
Common Pleas of Allegheny County denying his petition to change his minor
son’s name from D.A.’s (“Mother”) surname to match his own, or have his
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son’s name hyphenated to include both parents’ surnames. Father also
appeals the order denying his petition for reconsideration.1
The child is three years old. The parties share legal and physical
custody.2 After our review, we affirm the trial court’s order docketed at 337
WDA 2015, and we quash the appeal docketed at 336 WDA 2015.
Father raises the following issues for our review:
1. Whether the trial court erred in entering an order
dismissing Father’s petition to change the name of a minor
child, which order was not in the best interests of the child
in question;
2. Whether the trial court erred in disregarding the natural
bonds between Father and the child, with whom he has
equally shared physical custody, and the respect afforded
Father’s name within the community;
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1
By order dated March 17, 2015, this Court consolidated the two appeals
sua sponte. See Pa.R.A.P. 513 (“Where there is more than one appeal from
the same order, or where the same question is involved 336 WDA 2015 in
two or more appeals in different cases, the appellate court may, in its
discretion, order them to be argued together in all particulars as if but a
single appeal.”). However, an order denying reconsideration is not
appealable. See Provident Nat. Bank v. Rooklin, 378 A.2d 893, 897 (Pa.
Super. 1977) (refusal of a trial court to reconsider, rehear, or permit
reargument of a final decree is not reviewable on appeal); see also
Cheathem v. Temple Univ. Hosp., 743 A.2d 518 (Pa. Super. 1999)
(refusal of trial court to reconsider, rehear or permit reargument of final
decree is not reviewable on appeal); see also Valley Forge Center
Assocs. V. Rib-It/K.P., 693 A.2d 242 (Pa. Super. 1997). We, therefore,
quash the appeal docketed at 336 WDA 2015.
2
Father was represented by counsel during custody proceedings, but chose
to proceed pro se at the name change hearing.
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3. Whether the trial court erred and abused its discretion in
failing to find that Mother’s reluctance to use Father’s
name for the child was rooted in hostility between Mother
and Father;
4. Given that the standard for adjudication of a name change
is the best interests of the child, whether the trial court
erred by not setting forth in writing the statutory best
interest factors;
5. Whether the trial court erred by failing to grant
reconsideration and scheduling a subsequent day for
adjudication of Father’s name change petition where the
trial court, in so doing, failed to “ensure that as full and
complete a record as possible is created when a decision
as important as the welfare of a child is at issue,” thereby
not fulfilling “the duty of the trial court to make the fullest
record possible inquiry in custody actions.” Moore v.
Moore, 634 A.2d 163, 167 (Pa. 1993).
As Father’s first three claims are related, we address them together.
Our standard of review involving a petition for change of name,
regardless of the age of the petitioner, is whether there was an abuse of
discretion. In re Change of Name of Zachary Thomas Andrew Grimes
to Zachary Thomas Andrew Grimes–Palaia, 609 A.2d 158, 159 n.1 (Pa.
1992). An abuse of discretion exists if the trial court has overridden or
misapplied the law, or if the evidence is insufficient to sustain the order.
Doran v. Doran, 820 A.2d 1279, 1282 (Pa. Super. 2003). Further,
resolution of factual issues is for the trial court, and a reviewing court will
not disturb the trial court’s findings if those findings are supported by
competent evidence. It is not enough for reversal that we, if sitting as a
trial court, may have made a differing finding or reached a different result.
Id.
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The statute pertaining to name changes provides: “The court of
common pleas of any county may by order change the name of any person
resident in the county.” 54 Pa.C.S.A. § 702(a). Other than providing for the
granting of a petition in the absence of any lawful objection, the statute sets
forth no standards for the court’s exercise of its discretion. Our Supreme
Court has directed the lower courts to exercise their discretion, in name
change cases, in such a way as to “comport with good sense, common
decency and fairness to all concerned and to the public.” Petition of
Falcucci, 50 A.2d 200, 202 (Pa. 1947).
In 1992, the Pennsylvania Supreme Court declared that when
considering a contested petition to change the name of a minor child, the
best interest of the child is the standard by which a trial court exercises its
discretion. See Grimes, 609 A.2d at 161 (Pa. 1992) (citing comprehensive
list of jurisdictions that apply best interest of child standard). 3 In adopting
the “best interests of the child” standard, our Supreme Court stated:
The statutory scheme sets forth no criteria for the court to
consider when exercising its discretion upon a petition for
change of name. The only prohibition within the statute
appears at § 705: “Any person violating the provisions of
this chapter for purpose of avoiding payment of taxes or
other debts commits a summary offense.” . . . Specific
guidelines [for a child’s best interests] are difficult to
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3
But see Belotti v. Baird, 443 U.S. 622, 655-56 (1979) (Stevens, J.,
concurring) (criticizing standard because judges have proposed different and
frequently conflicting subjective factors for deciding whether particular name
is in child’s best interest).
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establish, for the circumstances in each case will be
unique, as each child has individual physical, intellectual,
moral, social and spiritual needs. However, general
considerations should include the natural bonds between
parent and child, the social stigma or respect afforded a
particular name within the community, and, where the
child is of sufficient age, whether the child intellectually
and rationally understands the significance of changing his
or her name.
Id. at 160, 161 (emphasis added). The Court further stated: “Beyond
requiring compliance with the notice provisions, the statute provides no
additional guidance for courts considering petitions for change of name.”
Id. at 160 (quoting Petition of Falcucci, supra at 202. See also In re
Change of Name of E.M.L. to E.M.S., 19 A.3d 1068 (Pa. Super. 2011).
In In re: C.R.C., 819 A.2d 558 (Pa. Super. 2003), this Court stated
that the party petitioning for the minor child’s change of name has the
burden of coming forward with evidence that the name change would be in
the child’s best interest. Id. at 560. Further, where a petition to change a
child’s name is contested, the court must carefully evaluate all of the
relevant factual circumstances to determine if the petitioning parent has
established that the change is in the child’s best interest. Id.; see also
Petition of Christjohn, 428 A.2d 597 (Pa. Super. 1981).
Here, the trial court concluded that Father did not meet his burden of
showing that the proposed name change was in the child’s best interests.
Instead, the court determined that Father sought to change the child’s name
to further his own interest in the survival of his surname. With the above
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considerations and standards in mind, we conclude that the trial court did
not abuse its discretion in denying Father’s petition for name change.
The trial court found that Father’s preference that his surname carries
on was insufficient to establish by a preponderance of the evidence that a
name change was in the child’s best interests. Father stated that the child
has a half-sister with Father’s surname, and that his name is known in the
community because he coaches youth sports and intends to coach his son.
N.T. Hearing, 1/9/15, at 13-16. Father also stated at the hearing that his
motivation for the name change was for his son “to be able to identify with
two people that are very big parts of his life, myself and his only sibling.”
Id. at 14. However, the trial court did not find this testimony credible. See
Trial Court Opinion, 4/2/15, at 6. On the contrary, the trial court found
Father’s “credible evidence established that he sought to change child’s
name to further his own interest in the survival of his surname, and because
he believes children should have their father’s last name.” Id. at 4. See
In re: Name Change of C.R.C., 819 A.2d 558 (Pa. Super. 2003) (tradition
and custom of “patrilineal naming” does not justify conclusion that name
change is in child’s best interest).
Father’s testimony is replete with references to his own desires, beliefs
and concerns, including testimony that his “only son is able to carry on” his
family name, and his belief that his son may be “embarrassed” or “bullied” if
he has a different surname than Father. N.T. Hearing, supra at 12-15.
Although we do not disagree that these concerns and considerations are of
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great significance to Father regarding his son, Father offered minimal
support for the more relevant issue of whether the name change would
affirmatively be in the child’s best interest.
Our Supreme Court has not provided definitive factors to consider in a
name change case, instead requiring only that the courts consider the
natural bonds between parent and child, the social stigma or respect
afforded a particular name within the community, and, where the child is of
sufficient age, whether the child intellectually and rationally understands the
significance of changing his or her name. Grimes, supra. Here, the trial
court found Father presented no evidence that changing the child’s surname
would strengthen his current, admittedly strong bond with the child.
Further, Father presented no evidence that the child’s name compromised
the child’s bond with him or with his half-sister. The court also found
speculative Father’s testimony that his surname was afforded respect in the
community beyond that afforded to child’s current surname.
The court acknowledged that Father presented evidence that he had
shared legal and physical custody of the child, however, this alone does not
provide sufficient evidence that a name change is in the child’s best
interest.4 In light of the growing prevalence of blended families and the
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4
Other jurisdictions have set forth more specific criteria to guide the best
interest analysis in a name change case. In New Jersey, the supreme court
enumerated certain factors courts should consider in applying the best
interest test, including the following: the length of time the child has used
(Footnote Continued Next Page)
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(Footnote Continued)
his or her given surname; identification of the child with a particular family
unit; potential anxiety, embarrassment, or discomfort that may result from
having a different surname from that of the custodial parent; child’s
preference if the child is mature enough to express a preference; parental
misconduct or neglect, such as failure to provide support or maintain contact
with the child; degree of community respect, or lack thereof, associated with
either paternal or maternal name; improper motivation on the part of the
parent seeking the name change; whether the mother has changed or
intends to change her name upon remarriage; whether the child has a
strong relationship with any siblings with different names; whether the
surname has important ties to family heritage or ethnic identity; and the
effect of a name change on the relationship between the child and each
parent. Emma v. Evans, 215 N.J. 197, 223 (2013).
In New York, in In the Matter of Mariah Ruby Eberhardt, 83
A.D.3d 116, 123-24, 920 N.Y.S.2d 216, 221 (2011), the court stated that
among the myriad of factors a court may consider, several warranted special
mention: the extent to which a child identifies with and uses a particular
surname; the child’s expressed preference, if of sufficient age and maturity
to articulate a basis for preferring a particular surname; whether the child's
surname differs from the surname of the custodial parent; the effect of the
proposed name change on the child’s relationship with either parent;
whether the child’s surname is different from any of her siblings and the
degree to which she associates and identifies with siblings on either side of
her family; whether the child is known by a particular surname in the
community; the misconduct, if any, of a parent, such as the failure to
support or visit with the child; and the difficulties, harassment, or
embarrassment that the child may experience by bearing the current or
proposed surname.
In Ohio, the June 29, 1982 enactment of R.C. 3111.13(C) (139 Ohio
Laws, Part I, 2170, 2187, 2188), authorizes a name change that is in “the
best interest of the child.” The Supreme Court of Ohio, in Bobo v. Jewell,
38 Ohio St. 3d 330, 335, 528 N.E.2d 180, 185 (1988), set forth the following
factors to guide the best interest analysis:
The length of time that the child has used a surname, the effect
of the change on the father-child relationship and on the
mother-child relationship, the identification of the child as part of
a family unit, the embarrassment, discomfort or inconvenience
that may result when a child bears a surname different from the
(Footnote Continued Next Page)
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evolving definition of the family structure, we are unable to evaluate the fact
that Father shares equal custody with Mother as anything but neutral.
Absent legislative guidance, we refuse to assign greater weight to a shared
custody award.
Because we are bound by the court’s credibility findings that are
supported in the record and our narrow standard of review, we conclude that
the trial court did not abuse its discretion in concluding that Father failed to
meet his burden of establishing that a name change was in the child’s best
interest. See D.K. v. S.P.K., 102 A.3d 467, 478 (Pa. Super. 2015) (in light
of appellate court’s deferential review of trial court’s factual findings and
determinations of weight and credibility, we must accept findings and
determinations supported in certified record); Petition of Schidlmeier by
Koslof, 496 A.2d 1249 (Pa. Super. 1985) (father’s allegation that name
change was in child’s best interest did not meet burden of proof and trial
court’s rationale that tradition and custom supported name change was not
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(Footnote Continued)
custodial parent’s, the preference of the child if the child is of an
age and maturity to express a meaningful preference, and any
other factor relevant to the child’s best interest.
Id. at 335, 528 N.E.2d at 185.
While none of these decisions is binding on the case before us, they
are instructive. Nonetheless, we leave it to our legislature to revisit section
702(a).
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legally sufficient to sustain conclusion that name change was in child’s best
interests).
We conclude, therefore, that the evidence of record is sufficient to
support the trial court’s findings, and, therefore, we find no abuse of
discretion in the trial court’s decision to deny Father’s petition for name
change. Grimes, supra.
In his final two issues, Father argues that the court erred in not
evaluating the statutory factors in determining custody, see 23 Pa.C.S.A.
§ 5328, and in denying reconsideration and thus not fulfilling “the duty of
the trial court to make the fullest record possible inquiry in custody actions.”
See Appellant’s Brief, at 11, quoting Moore v. Moore, 634 A.2d 163, 167
(Pa. 1993). We find no error.
Father mischaracterizes this action; it is a name change proceeding,
not a custody proceeding. The sixteen factors listed in section 5328 of the
Child Custody Act are specific to the best interest analysis in a custody
determination. See 23 Pa.C.S.A. § 5328 (factors to consider when awarding
custody). Further, as noted above, an order denying reconsideration is not
reviewable on appeal. See note 1, supra; Provident Nat’l Bank, supra.
Order affirmed. Appeal docketed at 336 WDA 2015 is quashed.
Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/10/2015
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