Halverson ex rel. Sumners v. Halverson, No. SD 31174.

CourtCourt of Appeal of Missouri (US)
Writing for the CourtDON E. BURRELL
Citation362 S.W.3d 443
Docket NumberNo. SD 31174.
Decision Date12 March 2012
PartiesIn re the Matter of: Lilly Stephanie HALVERSON, and Keltan Lynn Halverson, Minors, by their next friend Summer N. SUMNERS,Summer N. Sumners, Respondent, v. Denver Paul Halverson, Appellant.

362 S.W.3d 443

In re the Matter of: Lilly Stephanie HALVERSON, and Keltan Lynn Halverson, Minors, by their next friend Summer N. SUMNERS,Summer N. Sumners, Respondent,
v.
Denver Paul Halverson, Appellant.

No. SD 31174.

Missouri Court of Appeals, Southern District, Division One.

March 12, 2012.


[362 S.W.3d 445]

James M. Owen, Springfield, MO, for Appellant.

Susan Appelquist, Springfield, MO, for Respondent.

DON E. BURRELL, Presiding Judge.

This appeal arises from a judgment that changed from “Halverson” to “Sumners” the surname of Denver Paul Halverson's (“Father”) two minor children (“the Children”) as requested by the Children's mother, Summer N. Sumners (“Mother”). Father claims the trial court erred in: 1) finding the name change would serve the Children's best interests because it was against the weight of the evidence; and 2) failing to dismiss Mother's petition because the Children were under the jurisdiction of an Iowa court “on matters of custody and support” such that the entry of a judgment by a Missouri court could be “contrary to the terms of the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA” 1). Finding no merit in either of Father's claims, we affirm.

Applicable Principles of Review

“In a court tried case, the decision of the trial court must be affirmed unless the judgment is not supported by substantial evidence, it is against the weight of the evidence, or unless it erroneously declares or applies the law.” Wright v. Buttercase ex rel Buttercase, 244 S.W.3d 174, 176 (Mo.App. W.D.2008). The judgment is presumed correct, and the appellant has the burden of proving it erroneous. Strobl v. Lane, 250 S.W.3d 843, 844 (Mo.App. S.D.2008). Whether a trial court has subject-matter jurisdiction is a question of law we review de novo. McCracken v. Wal–Mart Stores East, LP, 298 S.W.3d 473, 476 (Mo. banc 2009).

We defer to the trial court's witness credibility determinations and its resolution of disputed facts.

[362 S.W.3d 446]

Houston v. Crider, 317 S.W.3d 178, 183 (Mo.App. S.D.2010). The trial court has discretion regarding a change of name for a child, and we will affirm its decision “unless it is ‘[c]learly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration[.]’ ” Morris by Cope v. Morris, 926 S.W.2d 87, 89 (Mo.App. W.D.1996) (quoting State ex rel Webster v. Lehndorff Geneva, Inc., 744 S.W.2d 801, 804 (Mo. banc 1988)).

“On appeal, this Court views the evidence and all reasonable inferences in the light most favorable to the judgment and disregards all contrary evidence and inferences.” Hahn v. Tanksley, 317 S.W.3d 145, 153 (Mo.App. S.D.2010). The following summary of the facts is presented in accordance with this standard.

Facts and Procedural Background
Pre-trial

Mother, as the Children's next-friend, filed her petition in June 2010. The Children were approximately 5 and 7 years of age at that time. The petition was also accompanied by the following “AFFIDAVIT AS REQUIRED” (“affidavit”), which bore Mother's acknowledgment and notarized signature.

1. [The C]hildren have resided with [Mother] since March 1, 2008 at [Mother's] address in Aurora, Lawrence County, MO and have been in the legal and physical custody of [Mother] since birth.

2. [Mother] has not participated in any capacity in any other litigation concerning the custody of [the C]hildren in this or any other state.

3. [Mother] has no information of any custody proceeding concerning [the C]hildren pending in a court of this or any other state.

4. [Mother] does not know of any person who is not already a party to these proceedings who has physical custody of [the C]hildren or claims to have custody or visitation rights with respect to [the C]hildren other than the biological parents of [the C]hildren.

Father's motion to dismiss alleged that jurisdiction was proper in Winneshiek County, Iowa because a court in that jurisdiction had previously issued a “Custody and Visitation Decree” (in October 2006) regarding the Children. Father also alleged “[a] separate action commenced involving the child support for” the Children in Winneshiek County, Iowa. The motion did not state the status of the alleged child support action. Father's motion to dismiss was subsequently denied by the trial court and the matter proceeded to trial.

The Trial

Father attended (with counsel) the trial on Mother's name-change petition in December 2010. Father fully participated at trial and testified in opposition to the requested change of name.2 Mother testified that she and the Children were presently living in Aurora with her husband, Jerry Lee Sumners (“Husband”), and their infant child. The Children were born in Iowa and moved with Mother to Missouri in March 2008. Father is listed as the Children's father on their birth certificates.

A custody and visitation degree was issued by the District Court of Winneshiek County, Iowa in October 2006. That decree gave Mother the right to deny any visitation by Father with the Children that she deemed either “unreasonable” or

[362 S.W.3d 447]

“[wa]s not in the best interest of [the C]hildren.” A child support order was also entered in Iowa, and Father was paying $88 per week in child support via wage withholdings as a result of that order.

The Children were enrolled in school under the last name of “Halverson.” When asked what name the Children used in school, Mother stated, “They have written ‘Sumners' down quite a bit, and just since it's not legal, it's Halverson that they write.” When she was asked how the eldest child “sometimes” wrote her name, Mother replied, “[first name] Sumners.” 3 During cross-examination, Mother testified that it was the eldest child who first brought up the idea of changing her name.

Mother said she favored changing the Children's surname to Sumners because “[t]hat's our family name.” Mother went on to explain that each family member regarded themselves as “a Sumners[,]” the Children called Husband “Dad,” and the Children's infant half-sibling's last name was “Sumners.” Mother did not “want it to be confusing for them, you know, through school[.]” On cross-examination, Mother confirmed that she had stated in an interrogatory answer that she believed it was in the best interests of the Children to change their surname because her last name is Sumners and the Children want to have the same last name as Mother “and their dad.” Mother said the Children call Husband “Dad” by their own choice.

Mother also testified:

[Father] is their father. [Father] is their father. The person that they call “Dad” and that has been at their school activities, has done their health [sic], has talked to the principal about an issue, has taken them to church, has done everything, that is a dad. That's not a father. A dad and a father are two separate things. The person that they call “Dad” is that guy that's sitting at the back wall.

Mother had not stopped Father from contacting the Children. Father had not visited the Children in Missouri, but Mother had taken the Children to see Father's parents when she was visiting her own family in Iowa, and she believed that Father saw the Children during those visits.

Father had called the Children a total of six times after they moved to Missouri, three of which came after Mother filed her petition. Father had not sent any gifts for the Children after they moved to Missouri, with the exception that he sent Christmas presents the first year, misspelling the younger child's first name on the gift.4 Mother was served in November 2010 with Father's Iowa motion to modify custody and visitation. That motion to modify was not admitted into evidence after Mother's counsel objected.

Husband testified that he was not the Children's father, but that they do call him “Dad.” He is “all for” that and is “the person who takes care of them.” When asked if he had discussed adopting the children with anyone, Husband replied, “No. We don't want to mess with [Father's] rights to have visitation with the kids or anything. All we simply want is for them to share the same last name with their parents.” Husband went on to clarify that they had talked about adoption, but they did not have the money to do it and if Father “wants to have something to do with them, that's fine. We are not against that.”

[362 S.W.3d 448]

Post-trial

The trial court entered its judgment granting the requested change of name, finding “that said change of name is proper, that it will not be detrimental to the interests of any other person, and that it is in the best interests of [the Children].” The judgment does not address the issue of any potential jurisdiction over the Children by an Iowa court or make any detailed findings of fact.

After Father filed his motion to set aside the judgment, Mother...

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