Fulghum v. Paul

• Decision Date: 12 September 1972
• Docket Number: No. 27318,27318
• Citation: Fulghum v. Paul, 229 Ga. 463, 192 S.E.2d 376 (Ga. 1972)
• Parties: Charles FULGHUM v. Lessie PAUL.
• Court: Georgia Supreme Court

Page 376

192 S.E.2d 376

229 Ga. 463

Charles FULGHUM v. Lessie PAUL.

No. 27318.

Supreme Court of Georgia.

Sept. 12, 1972.

Tom Strickland, Athens, for appellant.

Grant & Matthews, Carlton G. Matthews, Elberton, for appellee.

Syllabus Opinion by the Court

UNDERCOFLER, Justice.

Charles Fulghum seeks to vacate a judgment changing the surname of his minor child to that of her stepfather. He contends that the act providing for such name change is unconstitutional under the due process clauses of the State and Federal Constitutions (Code §§ 1-815, 2-103) because it does not provide for personal service upon him as the father of the child. The statute specifies service by publication '. . . in the official gazette of the county once a week for four weeks.'

The name was changed upon petition of the mother who was granted custody of the child upon her divorce from complainant. Service was by publication. Complainant resides in Georgia but in a county other than where the petition was filed and claims he was not aware of the proceeding.

The trial court held the statute constitutional as against the attack made. The appeal is from that judgment. Held:

'No person shall be deprived of life, liberty, or property, except by due process of law.' Ga.Const., Art. I, Sec. I, Par. III (Code Ann. § 2-103); U.S.Const., Article XIV, Sec. I (Code Ann. § 1-815).

As we view it, the controlling question here is whether a parent has a property right in his minor child's surname.

'It is merely a custom of persons to bear the name of their parents. Hence, in the absence of a statute or judicial adjudication to the contrary, there is nothing in the law prohibiting a person from taking or assuming another name, so long as he does not assume a name for the purpose of defrauding other persons through a mistake of identity.' 57 Am.Jur.2nd 289 § 22; 65 C.J.S. Names § 11(1), p. 25. Accordingly, we conclude that no one has a property right in another's name including the parent of a minor child. Therefore, the constitutional attack made here is without merit. It is the prerogative of the Georgia General Assembly to prescribe what notice, if any, is required prior to the court's action upon a petition for change of name. See Ga.Const., Art. III, Sec. VII, Par. XVII (Code Ann. § 2-1917). It has provided for notice by publication. Ga.L.1961, p. 129 (Code Ann. § 79-501).

We recognize that most fathers desire that their children be identified with them and take pride in their children bearing their names. Therefore, as commented upon by the trial judge, it would seem appropriate that the father, particularly where present in the State and whose address is known, should receive personal notice. However, this addresses itself to the General...