In Re: Emersyn W.

05/24/2018
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs May 1, 2018
IN RE: EMERSYN W.
Appeal from the Juvenile Court for Montgomery County
No. 17-JV-1033 Kenneth R. Goble, Judge
No. M2017-02074-COA-R3-JV
This is an appeal from an order changing the Child’s surname from that of Mother alone
to the double last name of Mother and Father, respectively. The juvenile court determined
that the Child’s last name should be changed based on a standardized policy of the court
because the parents could not reach an agreement. Mother appeals. We reverse.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Reversed
and Remanded
BRANDON O. GIBSON, J., delivered the opinion of the court, in which CHARLES D.
SUSANO, JR., and RICHARD H. DINKINS, JJ., joined.
Mark N. Foster, Madisonville, Kentucky, and Daniel P. Ufford, Clarksville, Tennessee,
for the appellant, Shaye D.
Wilson W., Jr., Gallatin, Tennessee, Pro se.
MEMORANDUM OPINION1
FACTS AND PROCEDURAL HISTORY
The parties to this action, Wilson W., Jr. (“Father”) and Shaye D. (“Mother”), are
the parents of Emersyn R. D. (“the Child”), who was born in April 2017, out of wedlock.
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Tennessee Court of Appeals Rule 10 provides:
This Court, with the concurrence of all judges participating in the case, may affirm,
reverse, or modify the actions of the trial court by memorandum opinion when a formal
opinion would have no precedential value. When a case is decided by memorandum
opinion it shall be designated “MEMORANDUM OPINION”, shall not be published, and
shall not be cited or relied on for any reason in any unrelated case.
Mother and Father had been in a relationship for about three years; it ended before the
Child was born.
On July 12, 2017, Father filed a petition in juvenile court asking the court to find
him to be the lawful father of the Child, to enter a parenting plan and set child support,
and to change the Child’s last name to Father’s last name. On July 24, 2017, Mother
responded to Father’s petition in juvenile court, asked to be allowed to move with the
Child to Alabama, and requested Father pay child support throughout the litigation.
On October 5, 2017, counsel for Mother and Father appeared before the juvenile
court and represented that all issues had been resolved in the case except for the surname
of the Child. The Child’s surname was listed on the birth certificate as Mother’s surname.
The juvenile court informed counsel of the “policy” it followed of hyphenating the
parents’ surnames to create the Child’s last name. The court heard no testimony, and no
exhibits were offered into evidence. After suggesting that the parties discuss the matter,
Mother’s counsel and Father’s counsel reported to the court that their respective clients
could not agree on the Child’s surname. The juvenile court verbally ordered for the two
surnames to be combined without hyphenation. The trial court issued a written order in
this matter on October 11, 2017, simply ordering that the Child’s last name be changed to
Mother’s and Father’s surnames, respectively.
ISSUE
Mother presents five issues for review on appeal, but there is only one dispositive
issue:
I. Whether the trial court failed to use the appropriate legal standard in
deciding to change the Child’s surname to that of a combined surname
of Mother’s and Father’s surnames, respectively.
ANALYSIS
The standard for changing a nonmarital child’s surname was set forth in Barabas
v. Rogers:
The courts should not change a child’s surname unless the change promotes
the child’s best interests. Among the criteria for determining whether
changing a child’s surname will be in the child’s best interests are: (1) the
child’s preference, (2) the change’s potential effect on the child’s
relationship with each parent, (3) the length of time the child has had its
present surname, (4) the degree of community respect associated with the
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present and proposed surname, and (5) the difficulty, harassment, or
embarrassment that the child may experience from bearing either its present
or its proposed surname.
Barabas v. Rogers, 868 S.W.2d 283, 287 (Tenn.Ct.App.1993) (internal citations omitted).
The Barabas court further established that the parent seeking to change the child’s
surname has the burden of proving that the change will further the child’s best interests.
Id. In Barabas, the “juvenile court ordered the child’s surname changed from Rogers to
Barabas solely because of its ‘rule’ that fathers who agree to support their nonmarital
children ‘deserve’ to have their children named after them.” Id. at 285.
The case at bar is quite similar to Barabas. While Father, as the party seeking to
change the Child’s surname, had the burden of proving that the change would be in the
Child’s best interest, the juvenile court heard no evidence. Rather, the extent of the
proceedings before the juvenile court was as follows:
The Court: Well, I can tell you what I do on name changes.
….
The Court: I hyphenate them. If they can’t agree on them, I hyphenate
them. And that way they both get a piece of the pie.
Counsel for Mother: We actually, and your Honor’s probably aware of the
statute and also the caselaw that defaults to mother’s name where the
parties are unmarried.
The Court: Well, you can appeal me if you want.
….
Counsel for Father: My client wouldn’t agree to the double name.
Counsel for Mother: Yeah, there is not an agreement. We were asking for a
ruling from the court whether it would be a double name or …
The Court: It will be the double name. And both parties can appeal.
….
Counsel for Father: And what does that mean exactly?
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The Court: What does that mean exactly what?
Counsel for Father: I mean, is it “W[.] D[.]” or it is “D[.] W[.]”? I don’t, I
mean …
The Court: Well, I’m going to be a little chauvinistic. What’s Mother’s
last name?
Counsel for Mother: D[.]
The Court: It will be “D[.] W[.].” That also happens to be alphabetical
order, so …
The juvenile court entered an order changing the Child’s name without making
any findings of fact, presumably because there were no facts before the court. The record
does not reflect that Father satisfied his burden of proof of establishing that the name
change was in the Child’s best interest, as the court heard no evidence. Without
presenting facts regarding the best interest of the Child, the trial court improperly ordered
the Child’s name change. As such, the order of the juvenile court must be reversed.
Accordingly, we reverse the order of the trial court.
CONCLUSION
For the foregoing reasons, the judgment of the juvenile court is reversed. Costs of
this appeal are taxed to the appellee, Wilson W., Jr., and his surety, for which execution
may issue if necessary.
_________________________________
BRANDON O. GIBSON, JUDGE
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