Blechle v. Poirrier, ED 81077.

• Decision Date: 22 July 2003
• Docket Number: No. ED 81077.,ED 81077.
• Citation: 110 S.W.3d 853
• Parties: Brenden P. BLECHLE, Garrett M. Blechle by Next Friend Todd J. Neel, and Todd J. Neel, Respondents, v. Darla M. POIRRIER, Appellant, and Missouri Division of Child Support Enforcement, Defendant.
• Court: Missouri Court of Appeals

Page 853

110 S.W.3d 853

Brenden P. BLECHLE, Garrett M. Blechle by Next Friend Todd J. Neel, and Todd J. Neel, Respondents, v. Darla M. POIRRIER, Appellant, and Missouri Division of Child Support Enforcement, Defendant.

No. ED 81077.

Missouri Court of Appeals, Eastern District, Southern Division.

July 22, 2003.

Francis J. Elpers, St. Genevieve, MO, for Appellant.

Brenden P. Blechle, Garrett M. Blechle, Todd J. Neel, Perryville, MO, for Respondents.

GEORGE W. DRAPER III, Judge.

At issue in this case is the ability of a trial court to change the surnames of minor twins in a declaration of paternity action, and its grant of tax dependency deductions to the biological father. We reverse and remand with directions.

On March 4, 2000, Darla Mae Poirrier (hereinafter, "Mother") gave birth to Brenden Paul Blechle and Garrett Michael Blechle (hereinafter, "the Children"). In December 2000, a paternity test determined Todd J. Neel (hereinafter, "Father") to be the biological father with a 99.98 percent probability. Father brought this declaration of paternity action seeking to be named the biological and legal father of the Children, joint legal and physical custody, and a name change to reflect his surname. The trial court entered its judgment on February 11, 2002, granting Father's request to change the Children's surnames and granting him tax dependency deductions. Mother appeals.

Mother first claims the trial court erred in granting Father's request to change the names of the Children from their names given at birth because there was no substantial evidence to support the name change, no evidence the name change would benefit the Children, and uncontroverted testimony supported leaving the names unchanged. Therefore, Mother claims Father failed to meet his burden of proof.

We will affirm the trial court's judgment unless it is not supported by substantial evidence, is against the weight of the evidence, or erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). In cases determining the surname of a child born out of wedlock, the trial court "has wide discretion and should be guided by what is in the best interests of the child." B.L.W. by Ellen K v. Wollweber, 823 S.W.2d 119, 122 (Mo.App. S.D.1992) (citing Kirksey v. Abbott, 591 S.W.2d 751, 752 (Mo.App. E.D. 1979)). Neither parent has the absolute right to confer his or her name upon the child. Wollweber, 823 S.W.2d at 122. However, while the trial court has discretion to change a child's surname, it must follow the proper procedure. Neal v. Neal, 941 S.W.2d 501, 503 (Mo. banc 1997).

Proper procedure requires "notice and the opportunity for adequate preparation for hearing on the issue by both parents" so as to assure the trial court's discretion is aimed at determining the best interests of the child. Id. Once proper notice has been achieved, this Court must determine whether the record contains sufficient evidence to prove the name change is in the best interests of the child. Id. at 504. The parent seeking to change the child's name bears the burden of proving the name change is in the child's best interests. Schubert v. Tolivar, 905 S.W.2d 924, 926 (Mo.App. E.D.1995). "The law does not presume it is in a child's best interests to carry the father's surname." Id.; See also Wollweber, 823 S.W.2d at 122.

In the instant case, Father pleaded to change the Children's surname to match his surname because he is their biological father. Father's petition meets the minimal notice requirements. Neal, 941 S.W.2d at 503. Next, we look to the record to see whether there was sufficient evidence to support the name change as being in the best interests of the Children.

As opposed to Mother's testimony, where at least Mother stated her belief that it would be in the Children's best interest not to change their last names, the only evidence this Court culled from the record which Father presents to overcome his burden is from his testimony and is as follows:

Q: You're also asking that their names be changed to Neel?

A: Yes.

Q: Both — Both the children's last names be changed to Neel?

A: Yes.

The trial court's judgment, however, stated there was no testimony adduced regarding changing the Children's surnames.

Father's remark that he would like the Children's names to be changed is not sufficient evidence to overcome his burden of proof demonstrating that it is in the Children's best interests to have their surnames changed. Additionally, there is no presumption that the Children's best interests are served by having their biological father's surname. Therefore, this point is granted. Upon remand, the trial court is directed to restore the Children's surname since there was not sufficient evidence presented to support any change.

Next, Mother argues the trial court erred in awarding the tax dependency deductions to Father because Father failed to contribute to the Children's support in prior tax years. Mother believes the party taking the tax dependency deductions must satisfy the support test set forth in the Internal Revenue Code, and the trial court cannot override that test.

A trial court has broad discretion in awarding tax dependency deductions. Lenger v. Lenger, 939 S.W.2d 11, 14 (Mo.App. W.D.1997); Hoffman v. Hoffman, 870 S.W.2d 480, 484 (Mo.App. E.D. 1994). "Because income tax exemptions are or may be a factor in determining the money available to pay support obligations, it would be appropriate for the parties, or the court in the absence...