Bowers v. Burkhart
| Decision Date | 25 November 2022 |
| Docket Number | 20210276-CA |
| Citation | 522 P.3d 931 |
| Parties | Rachel BOWERS, Appellant, v. Dustin BURKHART, Appellee. |
| Court | Utah Court of Appeals |
Emily Adams and Sara Pfrommer, Park City, Attorneys for Appellant
Julie J. Nelson, Salt Lake City, Taylor Webb, and Melissa A. Patten-Greene, Attorneys for Appellee
Opinion
¶1 Rachel Bowers and Dustin Burkhart divorced before their daughter (Daughter) was born. When Daughter was born, Bowers gave her the surname Bowers. But Burkhart later moved to change Daughter's surname to Burkhart. After a hearing, the district court granted Burkhart's motion, finding that it was in Daughter's "best interest to change her last name to Burkhart." Bowers now challenges the court's decision on appeal, contending that it was "based on speculation and not on evidence." We agree and reverse.
¶2 Bowers and Burkhart married in September 2018. Throughout their marriage, Bowers used her own surname and did not use the surname Burkhart.
¶3 In July 2019, Bowers learned that she was pregnant. In August 2019, Bowers and Burkhart separated, and in November 2019, they signed and submitted a stipulated divorce decree. Although they both knew of Bowers's pregnancy, they claimed in the stipulation that they were "not expecting a child." The divorce was finalized in January 2020, and Daughter was born in February 2020. Burkhart was living out of state at the time and was not present at Daughter's birth, nor was he listed on Daughter's birth certificate. At Daughter's birth, Bowers gave her the surname Bowers.
¶4 Six months after Daughter's birth, Burkhart filed a petition for paternity. In his petition, Burkhart asserted that he had not met Daughter because Bowers refused to communicate with him. He also claimed that although he "signed all the divorce documents," Bowers was the one who completed them and he "did not thoroughly review or understand what they said." He further claimed that he didn't know why Bowers "erroneously filled out the divorce documents stating that the parties ‘[were] not expecting a child together.’ " Finally, Burkhart requested that Daughter's surname be changed to Burkhart and that he be listed as her father on her birth certificate.
¶5 In December 2020, the parties filed a stipulation to amend their divorce decree and resolve Daughter's paternity. But the parties did not reach an agreement on Daughter's name, so they reserved that issue. Based on this stipulation, the district court amended the divorce decree and resolved paternity. The court gave Bowers sole physical custody of Daughter, established dates for Burkhart to have supervised parent-time, and created a visitation schedule for Burkhart that would start after he completed a drug test, an anger management course, and a parenting course. The court also ordered Burkhart to pay child support (including an arrearage of $5,053) and ordered that Burkhart be listed on the birth certificate. The court reserved the issue of Daughter's surname and stated that either party could "set a hearing" on that issue.
¶6 After the parties filed their stipulation, Burkhart moved to change Daughter's surname to Burkhart.1 At the time, Daughter was nine months old. In his motion, Burkhart alleged that Bowers gave Daughter a different first name "than the parties had previously discussed and agreed upon and name[d] the minor child her maiden name" rather than Burkhart's last name. Burkhart explained that he "has no other minor children and feels very strongly that the minor child should have his last name." Burkhart claimed that he "has fought very hard to establish and create a relationship with the minor child and wants to have a very long term close and loving bond with her." And Burkhart further argued that Daughter "should have his last name for religious, genealogy, and family ties."
¶7 Burkhart also noted that Bowers has four other children, none of whom bear the surname Bowers. From this, Burkhart argued that Bowers "is used to having a different last name [than] her minor children." Moreover, Burkhart contended that Bowers "has resisted and delayed" his relationship with Daughter and that he "worries that [Bowers] seeks to undermine or diminish the importance of his role in [Daughter's] life, including by refusing to allow [Daughter] to have and use his last name."
¶8 Burkhart did not include a declaration, an affidavit, or other evidence with this motion. But the final page of the motion included a heading titled "Authentication" under which appears this sentence: "I declare under criminal penalty under the law of Utah that the foregoing is true and correct." There was then a typed signature for Burkhart, with the explanation that his "signature [was] affixed by counsel with permission given via email."
¶9 Bowers opposed Burkhart's motion. In support of her opposition, she attached her own sworn declaration in which she explained the parties’ history. There, Bowers averred that Burkhart told her during her pregnancy "that he hoped [she] had a miscarriage and that it was a misfortune [she] was pregnant." She said that Burkhart "consistently reminded [her] that he did not want the baby" and "declined [her] invitations to attend doctor appointments." But she did acknowledge that Burkhart nevertheless "expressed a desire that [Daughter] have his last name, Burkhart."
¶10 Contrary to Burkhart's assertion, Bowers averred that Daughter was not mentioned in their stipulated divorce decree because Burkhart "had repeatedly expressed his intention to have nothing to do with the child." Bowers also averred that although Daughter was born in February, Burkhart "made no effort to contact [Bowers] about [Daughter] or visit her until August 2020." Bowers said that Burkhart tried to visit in August but that she had called the police because he arrived without warning at 11:00 p.m. and Bowers was afraid of him.
¶11 Bowers also explained how Burkhart had behaved during supervised parent-time. For example, she claimed that Burkhart called Daughter a "boober," a nickname that he used with Bowers's "other children during [their] marriage and [that] carries a negative connotation." She also stated that he held Daughter "upside down for a period of time until she made noises indicating she was uncomfortable." Bowers claimed that Burkhart had paid "zero" child support. Finally, in her memorandum opposing Burkhart's motion, Bowers contended that she was not impeding Burkhart's relationship with Daughter, but, rather, that it was Burkhart's "instability, anger issues, lack of parenting skills, drug issues, and failure to exercise parent time" that was impeding his relationship with Daughter.
¶12 In his reply, Burkhart contended that he "called and texted [Bowers] daily and then two to three times per week to talk to her and ask her about [Daughter]," but that "[Bowers] never responded." Burkhart also denied that "he has ever had a drug problem" or that he had behaved inappropriately around Daughter during the supervised parent-time. Burkhart further argued that it was in Daughter's best interest to have his name because, although he "does not know if [Bowers] will get married again and/or change her name in the future," "obviously his name shall remain the same and a constant for the minor child." And he claimed that, given Bowers's "clear resistance" to him, it was "important that [Daughter] have his last name to help develop and preserve" her "relationship with him." Burkhart attached two exhibits to his reply: (1) lab results showing that he had recently tested negative for illegal drug use, and (2) a certificate showing he completed an anger management course.
¶13 The court held a hearing on the motion. There, both parties agreed that the relevant legal question was whether a name change was in Daughter's best interest. Both sides also suggested that the court's best interest analysis should be guided by the factors outlined in Hamby v. Jacobson , under which a court may consider (1) "the child's preference in light of the child's age and experience"; (2) "the effect of a name change on the development and preservation of the child's relationship with each parent"; (3) "the length of time a child has used a name"; (4) "the difficulties, harassment or embarrassment a child may experience from bearing the present or proposed name"; and (5) "the possibility that a different name may cause insecurity and lack of identity." 769 P.2d 273, 277 (Utah Ct. App. 1989).
¶14 Burkhart's attorney emphasized that Burkhart "has been begging through this entire period of time to get to know this child, to be introduced to this child." But Bowers's attorney reminded the court that Burkhart, as the movant, bore the burden of proof. She also said that Bowers is a military veteran who served for eleven years and has a bronze star and a purple heart, that Bowers has a multi-generational military legacy, and that Bowers wanted Daughter to have her surname because she believes that Daughter "will be proud of that name and the legacy that survives that name."
¶15 After argument, the court determined that it was in Daughter's "best interest to change her last name to Burkhart" and thus granted Burkhart's motion. In a written order, the court started by explaining that it "heard conflicting representations made by the parties regarding the history of this matter and events in the past." The court accordingly made "no findings in regard to such because there is no evidence in the record to support either parties’ representations." And while it thanked Bowers for her military service, it also found that her military service was irrelevant to the question before it.
¶16 Turning to the Hamby factors, the court first found that Daughter's preference and the length of time that Daughter had the Bowers surname were irrelevant because of Daughter's young age. The...
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