Carroll v. Johnson

• Decision Date: 24 April 1978
• Docket Number: Nos. 77-292,77-293,No. 2,s. 77-292,2
• Citation: 263 Ark. 280,565 S.W.2d 10
• Parties: Suzanne Marie CARROLL, mother and next friend of Tammy Johnette Johnson and Jason Robin Johnson, minors, Appellant, v. Sammy JOHNSON, Appellee
• Court: Arkansas Supreme Court

Page 10

565 S.W.2d 10

263 Ark. 280

Suzanne Marie CARROLL, mother and next friend of Tammy Johnette Johnson and Jason Robin Johnson, minors, Appellant, v. Sammy JOHNSON, Appellee.

Nos. 77-292, 77-293.

Supreme Court of Arkansas, Division No. 2.

April 24, 1978.

Shackleford, Shackleford & Phillips, El Dorado, for appellant.

Keith, Clegg & Eckert, Magnolia, for appellee.

FOGLEMAN, Justice.

These two appeals are consolidated by us because they involve the same legal questions relating to changes of the names of Jason Robinson Johnson in 77-292 and of Tammy Johnette Johnson in 77-293. Both of them are minor children, now aged seven years and thirteen years, respectively, of Suzanne Marie Carroll and Samuel W. Johnson, who were divorced sometime prior to November 22, 1972, when the mother married Dr. Peter J. Carroll. By separate ex parte petitions Mrs. Carroll, as mother and next friend of the respective minor children, asked that their names be changed to Robin Johnson Carroll and Tammy Johnette Carroll, respectively. Dr. Carroll joined in both petitions. It was alleged in each of them that the minor children had been cared for and supported by Dr. Carroll since he married the mother and that Samuel Johnson, the father, had failed and refused to support them. Both petitions were filed on February 8, 1977. Separate orders granting the prayer of each petition was filed on the same date, both reciting that the petition was heard on the preceding day. The only appearances noted were those of the petitioners and their attorneys. No notice was given to the father.

Subsequently, Samuel W. Johnson filed a motion in each proceeding to set aside the order previously entered, alleging that he had performed such obligations as he had for the support of the child involved and had been in constant communication with the child and its mother, that a proceeding for the adoption of the child had been filed in January, 1977 and heard on April 13, 1977, and that he had received notice of this proceeding and had been in constant communication with Mrs. Carroll and her attorney during the pendency of that proceeding but had not been given any notice whatever of the petition for change of name. He asked that the order in each case be set aside for three reasons, i. e.: want of notice to him; on account of the falsity of statements in the petition; and because the change was not in the best interest of the minor. He asserted that the entry of the orders without notice to him deprived him of due process of law under both the state and federal constitutions.

Mrs. Carroll, as mother and next friend of each of the minors, responded in both cases, denying the allegations of appellee's motion and asserting that appellee was not entitled to notice, that appellee had no standing to challenge the order of the court because he was not a party to the proceeding, and that appellee had not alleged or made a prima facie showing of a meritorious defense. The chancery court held that due process of law entitled a natural parent to notice of the filing of a petition to change the name of his minor child and that, according to the opinion in Clinton v. Morrow, 220 Ark. 377, 247 S.W.2d 1015, notice to a non-custodial parent and trial on the merits on such a petition is contemplated. On this holding, the orders were set aside.

Appeals were taken by Mrs. Carroll, as mother and next friend, on the grounds that due process of law does not require notice of the filing of a petition for name change of a child to its non-custodial parent, that the non-custodial parent cannot invoke due process notice requirements without showing that he was prevented from asserting a defense to the court's action by lack of notice and that appellee had neither alleged nor made a prima facie showing of a meritorious defense to the name changes. We agree with the chancery court and affirm.

Appellant correctly states that Ark.Stat.Ann. § 34-801 et seq. (Repl.1962) relating to proceedings for change of name, requires no notice and that we said in Clinton v. Morrow, supra, "We have no statute requiring the consent of both parents to change the name of an infant." Upon those premises, appellant concludes that a father, living separate and apart from a mother, paying no child support, and seldom exercising his bare right of reasonable visitation is entitled to no notice. Appellant also argues that there is no reason for requiring notice to one whose consent is unnecessary and over whose objection the change can be granted.

Little attention need be given the statute, for it is, as we held in Clinton v. Morrow, supra, merely in affirmation and aid of, and supplementary to, the common law rule that one may ordinarily change his name at will, without any legal proceedings, merely by adopting another name, that the right is not limited by the ordinary rules of minority and that the statute only affords another method of doing so. But the failure of the statute to require notice in a case such as this is no answer to the due process argument. It could, at the most, constitute a legislative determination that notice was not essential to due process, and in the case of the change of name of an adult, it probably would not be. The legislature cannot dispense with notice, where notice and hearing are necessary to afford constitutional due process. Sinquefield v. Valentine, 159 Miss. 144, 132 So. 81, 76 A.L.R. 238 (1931).

It seems clear to us that a natural father has standing to challenge a proposed change of name of his minor child. This right has been widely recognized. See In re Larson, 81 Cal.App.2d 258, 183 P.2d 688 (1947); Application of Trower, 260 Cal.App.2d 75, 66 Cal.Rptr. 873 (1968) and cases cited. The annotator in an annotation at 53 A.L.R.2d 914, et seq. has correctly and concisely stated the prevailing rule, viz:

The courts have generally recognized that the father has a protectible interest in having his child bear the parental surname in accordance with the usual custom, even though the mother may have been awarded custody of the child.

The paternal right has been denominated in various terms. It has been called: a natural right, West v. Wright, 263 Md. 297, 283 A.2d 401 (1971); Worms v. Worms, 252 Cal.App.2d 130, 60 Cal.Rptr. 88 (1967); De Vorkin v. Foster, Sup., 66 N.Y.S.2d 54 (1946); Application of Baldini, 17 Misc.2d 195, 183 N.Y.S.2d 416 (1959); a fundamental right, Young v. Board of Education of City of N.Y., 114 N.Y.S.2d 693 (1952); a primary or time-honored right, Application of Shipley, 26 Misc.2d 204, 205 N.Y.S.2d 581 (1960); Schoenberg v. Schoenberg, Sup., 57 N.Y.S.2d 283 (1945), aff'd. 269 App.Div. 1048, 59 N.Y.S.2d 280, aff'd. 296 N.Y. 583, 68 N.E.2d 874; In re Larson, supra; a common law right, Application of Trower, supra; a protectible interest, Robinson v. Hansel, 302 Minn. 34, 223 N.W.2d 138 (1974); Ouellette v. Ouellette, 245 Or. 138, 420 P.2d 631 (1966); Ex parte Taylor, 322 S.W.2d 309 (Tex.Civ.App., 1959); and even a legal right, Steinbach v. Steinbach, Sup., 119 N.Y.S.2d 708 (1953). Although there are jurisdictions in which it has been held that the father's right is not absolute, he is still accorded the right to a hearing and to protection against a change of the name of his minor child in a proper case.

Even if we did not recognize the father's standing to challenge the change of his minor child's name in Clinton, we do so now. Regardless of the way in which the father's right may be characterized, we have no hesitation in holding that it is basic and fundamental that he has a protectible interest in his child's name. The interest has been protected in various ways when a father objects to a change, even by injunction against an informal name change by the mother having custody. See e. g., Sobel v. Sobel, 46 N.J.Super. 284, 134 A.2d 598 (1957); Montandon v. Montandon, 242 Cal.App.2d 886, 52 Cal.Rptr. 43 (1966); Kay v. Bell, 95 Ohio App. 520, 121 N.E.2d 206 (1953); Application of Hinrichs, 41 Misc.2d 422, 246 N.Y.S.2d 25 (1964); De Vorkin v. Foster, supra; Mark v. Kahn, 333 Mass. 517, 131 N.E.2d 758, 53 A.L.R.2d 908 (1956).

There is a split of authority on the question whether failure to give a non-custodial father notice of a proceeding to change the name of his minor child violates due process. In Georgia it has been held that it does not. Fulghum v. Paul, 229 Ga. 463, 192 S.E.2d 376 (1972). See also, Laks v. Laks, 25 Ariz.App. 58, 540 P.2d 1277 (1975). In Texas, it has been held that it does. Scucchi v. Woodruff, 503 S.W.2d 356 (Tex.Civ.App., 1973); Eschrich v. Williamson, 475 S.W.2d 380 (Tex.Civ.App., 1972). The holding in Texas seems to have resulted, at least in substantial part, from Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965). In Armstrong, it was held that due process of law requires notice of a pending adoption to a non-custodial parent. The United States Supreme Court in that case held that, where the result of the judicial proceeding could permanently deprive a legitimate parent of all that parenthood implies, due process requires notice reasonably calculated to apprise interested parties of the pendency of the action and an opportunity to present their objections. That court said that failure to give the father in that case notice of the pending adoption proceedings violated the most rudimentary requirements of due process. See also, Olney v. Gordon, 240 Ark. 807, 402 S.W.2d 651.

The due process clauses of both the Arkansas and United States constitutions afford protection against deprivation of life, liberty or property. Neither an adoption nor a change of name of his child would deprive a divorced father, who does not have custody of the child, of life or liberty or property, if the words are narrowly or strictly construed, in a technical sense, as appellant reads them. Obviously, they were not so construed in Armstrong. The right of parenthood was there recognized as a right protected...