Barabas v. Rogers

• Decision Date: 29 October 1993
• Citation: 868 S.W.2d 283
• Parties: Michael Andrew BARABAS, Plaintiff/Appellee, v. Michelle Lee ROGERS, Defendant/Appellant.
• Court: Tennessee Court of Appeals

Page 283

868 S.W.2d 283

Michael Andrew BARABAS, Plaintiff/Appellee, v.Michelle Lee ROGERS, Defendant/Appellant.

Court of Appeals of Tennessee Middle Section, at Nashville.

Oct. 29, 1993.

Published in accordance with Tenn.Ct.App.R. 11.

Royce Taylor, Murfreesboro, for defendant/appellant.

Brad W. Hornsby, Murfreesboro, for plaintiff/appellee.

OPINION

KOCH, Judge.

This appeal involves a dispute over a nonmarital child's surname.Several weeks after the child's birth, the father filed a petition in the Rutherford County Juvenile Court seeking to legitimate his son and to give him his surname.The mother, who had already given the boy her surname, opposed changing her son's surname.Following a bench trial, the juvenile court legitimated the child, ordered the father to pay child support, and directed that the child's surname be changed to his father's.Both parties have raised issues on appeal.¹While we have determined that the decisions concerning the tax exemption and the mother's medical expenses are correct, we have determined that the father has not made out a case for changing the child's surname.Therefore, we vacate the portion of the judgment changing the child's surname to that of the father.

I.

Michelle Lee Rogers discovered she was pregnant in 1991.Her boyfriend, Michael Andrew Barabas, initially denied that he was the father but eventually agreed to support the child if it turned out to be his.He also insisted that the child, if it were his, bear his surname if it were male but not if it were female.Mr. Barabas soon lost interest in Ms. Rogers and married someone else before the child's birth.

Ms. Rogers gave birth to a son on January 27, 1992.She named him Nicholas Andrew Rogers and placed this name on the child's birth certificate in accordance with Tenn.Code Ann. § 68-3-305(b)(1)(1992).Mr. Barabas asked for permission to take his son to visit his family within days after the child was born.Ms. Rogers declined because the child was only a week old, because she had just returned home from the hospital, and because she was breast feeding the child.Mr. Barabas never requested to see his son again and, contrary to his earlier promises, provided no financial assistance to Ms. Rogers for her medical expenses or for the child's support.

In February 1992 Mr. Barabas filed a legitimation petition in the Rutherford County Juvenile Court.He offered to support the child and requested liberal visitation rights and that the child's name be changed to Nicholas Andrew Barabas.Ms. Rogers objected to changing her son's name but agreed that Mr. Barabas should have visitation rights consistent with the child's age.

The juvenile court conducted an abbreviated hearing in May 1992 at which Mr. Barabas and Ms. Rogers were the only witnesses.On June 16, 1992, it filed an order declaring that Mr. Barabas was the child's father and directing him to pay $74 per week in child support, $1,258 for back child support, and $2,175.80 for Ms. Rogers' medical expenses relating to the child's birth.It also decided that the parties would alternate claiming the child as an exemption for income tax purposes.Finally, the juvenile court directed that the child's surname be changed to Barabas.

II.

The most hotly contested issue in this case concerns which of his parents' surnames the child should bear.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.²The juvenile court's rule has no basis in common law or custom.Parties seeking to change a child's surname bear the burden of showing good cause for the change.Mr. Barabas has not carried his burden in this case.

A.

Surnames were not common in England before the Norman Conquest.L.G. Pine, The Story of Surnames 10 (1969); Percy H. Reaney & R.M. Wilson, The Dictionary of British Surnames xxii (3d ed. 1991)("Reaney & Wilson").Their use increased after the Battle of Hastings because of the popularity of the Normans' custom of using Christian names.Percy H. Reaney, The Origin of English Surnames 314 (1967)("Reaney").

The first surnames were given spontaneously according to no fixed rules.Reaney, supra, at 19-20.They usually described a person's physical characteristics, occupation, or place of origin.Surnames were not usually passed on to descendants and were often changed throughout a person's life as the person's reputation changed.Richard H. Thornton, Note, The Controversy Over Children's Surnames: Familial Autonomy, Equal Protection and the Child's Best Interests, 2 UtahL.Rev. 303, 304-06(1979)("Thornton");57 Am.Jur.2dName§ 2(1988).Accordingly, the common law recognized the right of every person to use and to be known for all legal and social purposes by any surname they chose as long as they had no fraudulent purpose and no intent to interfere with another's rights.Dunn v. Palermo, 522 S.W.2d 679, 683(Tenn.1975);65 C.J.S.Names§ 11(1)(1966).

The use of surnames spread more rapidly in some parts of England than it did in others and grew most rapidly among the educated upper classes.Reaney & Wilson, supra, at xxiv.They became fixed and hereditary between the Battle of Hastings and Agincourt.C.M. Matthews, English Surnames 17 (1967);Reaney, supra, at 315;Thornton, supra, 2 Utah L.Rev.at 305.One of the reasons for this evolution was that a child's inheritance was often contingent on the child having a name associated with the ancestral property.However, persons did not always use paternal surnames for inheritance purposes.Entire families occasionally took their mother's surname if the property and estates were held by her family.Reaney, supra, at 84-85.

The custom eventually evolved to give children born to married couples their father's surname.This custom did not extend to nonmarital children.The early common law considered these children to be "nullius filius" or "children of nobody."In re Lund's Estate, 26 Cal.2d 472, 159 P.2d 643, 647(1945);2 James Kent, Commentaries on American Law* 212 (13th ed. 1884);Wilfred Hooper, The Law of Illegitimacy 27 (1911)("Hooper");Priscilla R. MacDougal, The Right of Women to Name Their Children, 3 Law &Ineq.J. 91, 108(1985).Nonmarital children did not acquire hereditary surnames from either their father or mother but rather gained their surnames later by virtue of their physical characteristics, reputation, or occupation.Bobo v. Jewell, 38 Ohio St.3d 330, 528 N.E.2d 180, 183(1988); 1 William Blackstone, Commentaries *459;Edward Coke, The First Part of the Institutes of the Laws of England, bk. 1 § 1, at 3.b (1st ed. 1628)(Johnson, et al. ed 1812).

The common law recognized that unmarried mothers obtained their parental rights by giving birth to the child, ³ while fathers obtained their parental rights through marriage.⁴It followed that unmarried mothers possessed greater parental rights than did putative fathers, In re Cardinal, 611 A.2d 515, 517(Del.Fam.Ct.1991);Bobo v. Jewell, 528 N.E.2d at 184, and in fact, some commentators stated that fathers had no rights with regard to their nonmarital children.1 William Blackstone, Commentaries *434;see alsoHooper, supra, at 2-4.Accordingly, it became customary for nonmarital children to assume their mother's surname at birth rather than their father's.In re Marriage of Schiffman, 28 Cal.3d 640, 169 Cal.Rptr. 918, 921, 620 P.2d 579, 582(1980);Secretary of Commonwealth v. City Clerk, 373 Mass. 178, 366 N.E.2d 717, 725(1977);Thornton, supra, 2 Utah L.Rev.at 312 n. 41.

A Norman father desiring to recognize a nonmarital child would often confer on the child his surname with the prefix "Fitz."Harry D. Krause, Illegitimacy: Law and Social Policy 32 (1971).Short of an act of Parliament, however, English common-law made no provision for legitimizing a nonmarital child.Jenny Teichman, Illegitimacy: An Examination of Bastardy 33-36 (1982).Thus, these children rarely took their father's surname, and neither custom nor the common law recognized a father's right to have his nonmarital children bear his surname.

B.

The portions of Tennessee's vital records statutes dealing with birth certificates reflect many of these customs and common law principles.The birth certificate of a child born to married parents must show that the child's surname is that of its biological father unless both parents request another name.Tenn.Code Ann. § 68-3-305(a).On the other hand, the birth certificate of a child born to an unmarried mother must reflect that the child's surname is that of the mother unless both parents have requested otherwise.Tenn.Code Ann. § 68-3-305(b)(1).

Later legitimation or paternity proceedings do not necessary result in changing the nonmarital child's surname appearing on its birth certificate.The child's name is not automatically changed if its parents marry later.Tenn.Code Ann. § 36-2-207(1991).Likewise, a nonmarital child's surname is not changed following a paternity or legitimation proceeding unless the court orders that the name be changed.Tenn.Code Ann. §§ 36-2-208,36-2-206(b),68-3-305(c);see alsoTenn.Comp.R. & Regs. r. 1200-7-1-.04(3)-(5)(1989).

The courts should not change a child's surname unless the change promotes the child's best interests.Halloran v. Kostka, 778 S.W.2d 454, 456(Tenn.Ct.App.1988);see alsoIn re Marriage of Schiffman, 169 Cal.Rptr. 918, 921, 620 P.2d 579, 582(1980);In re Cardinal, 611 A.2d at 517;Kristine C. Karnezis, Annotation, Rights and Remedies of Parents Inter Se With Respect to the Name of Their Children, 92 A.L.R.3d 66 § 8.5 (Supp.1992).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...