Brittingham v. Dattilio

• Decision Date: 30 August 2012
• Docket Number: No. A12A1374.,A12A1374.
• Citation: 731 S.E.2d 784,317 Ga.App. 548
• Parties: BRITTINGHAM v. DATTILIO.
• Court: Georgia Court of Appeals

317 Ga.App. 548

731 S.E.2d 784

BRITTINGHAM

v.DATTILIO.

No. A12A1374.

Court of Appeals of Georgia.

Aug. 30, 2012.

Cortney Brittingham, pro se.

Cordell & Cordell, Kevin Mammola, Atlanta, for Appellee.

MIKELL, Presiding Judge.

Cortney Brittingham brings this pro se appeal from the trial court's order changing her son's surname to that of the child's father, Terry Dattilio. Brittingham argues that Dattilio's petition to change the child's name was not verified, that she received insufficient notice of the petition and did not consent to the change, and that Dattilio did not comply with applicable publication requirements. We find no error and affirm.

A trial court "has broad discretion ... to change the name of a child, and the court's decision will not be reversed unless it clearly abuses its discretion by ignoring the best interests of the child."¹

So viewed, the record shows that in December 2009, having moved to Georgia the previous year, Brittingham began proceedings in DeKalb County Superior Court to domesticate New Jersey court orders as to custody of the unmarried couple's then–2–year–old son. In July 2011, the trial court entered temporary orders modifying the New Jersey orders. In August 2011, Dattilio moved to an apartment near the home of Brittingham and the child. On September 29, 2011, the trial court set a final hearing for December 1, 2011.

In the meantime, on November 7, 2011, Dattilio filed a counterclaim to change the child's surname. At the final hearing, Dattilio testified that his son had told him that he wanted to be "just like daddy" and that he wanted "to be a Dattilio." Brittingham did not raise any procedural objections concerning the father's name change petition at the hearing. Instead, she testified that she had seen the child use Dattilio as his surname and that "it's upsetting to him to be so confused" about his last name.

Brittingham argues that the trial court erred when it ordered the name change because Dattilio has not complied with the procedural requirements of OCGA § 19–12–1. Specifically, Brittingham asserts that Dattilio did not obtain her consent, did not verify his counterclaim, and did not serve her with a copy of that pleading, either personally or by publication.²

Dattilio served his counterclaim for name change by mail some weeks before the final hearing, and Brittingham has not disputed that she had actual notice of the pleading well before that event.³ In any event, however, Brittingham neither filed her procedural objections in writing nor raised them at the final hearing; instead, she litigated the merits of the name change. Because Brittingham litigated the issue of the name change in the trial court without raising any procedural objections, she has waived consideration of those objections on appeal.⁴ It also appears that the trial court had some evidence before it, including the father's testimony and the mother's admission that the child had used the father's surname and needed finality on the subject, that adopting the father's surname would be in the best interests of the child. It follows that the trial court did not abuse its discretion when it ordered the name change.⁵

Judgment affirmed.

MILLER, J., concurs. RAY, J., concurs specially.

While I fully concur in the majority's opinion, I write separately to address an argument raised by Dattilio in his brief and to point out a shortcoming in existing law that might be addressed by the General Assembly, namely that there may be situations in which the best interests of the child are not served by requiring the consent of both parents to a child's name change.

Brittingham pursued this appeal claiming that Dattilio was not entitled to relief because he had not complied with the statutory requirements set forth in OCGA § 19–12–1, including the requirement that Dattilio obtain Brittingham's written consent to his request to change the child's name and that he file such written consent with the counterclaim seeking the name change. As set forth in the majority's opinion, any such requirement was waived when the counterclaim proceeded to trial on its merits without any objection by Brittingham that the issue was not properly before the trial court.

As the same time, Dattilio has argued that he was not required to obtain Brittingham's written consent before filing his counterclaim, or for that matter to have complied with any of the other provisions of OCGA § 19–12–1, as his right to seek a name change for the child arose out of OCGA § 9–7–20 et seq., which is the statutory scheme wherein a biological father seeks to legitimate a child born out of wedlock. This argument is without merit. The counterclaim was filed to the consolidated action in the Superior Court of DeKalb County. This was an action to domesticate a foreign judgment from New Jersey regarding child custody, support and visitation (Civil Action No. 09––1427–1) and a petition to modify child support and visitation of the same New Jersey order (Civil Action No. 10––3241–1).

Thus, it cannot be fairly argued that Dattilio's effort to obtain a name change for the child was part of an action to legitimate the child, which is what OCGA § 19–7–22 contemp...