Hamman v. County Court In and For Jefferson County
| Decision Date | 11 April 1988 |
| Docket Number | No. 87SC14,87SC14 |
| Citation | 753 P.2d 743 |
| Parties | John HAMMAN, Petitioner, v. The COUNTY COURT In and For the COUNTY OF JEFFERSON, State of Colorado and the Honorable Linda Palmieri, one of the Judges thereof; Arlene K. Hamman, now known as Arlene K. Bolton, by and through her next friend and mother, Mary Victoria Bolton; and Mary Victoria Bolton, Respondents. |
| Court | Colorado Supreme Court |
Shade, Doyle, Klein, Otis & Frey, Henry C. Frey, Greeley, for petitioner.
Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Maurice Knaizer, First Asst. Atty. Gen., Denver, for respondents Jefferson County Court and the Honorable Linda Palmieri.
Ruderman & Sturniolo, Andrew G. Martelon, Denver, for respondents Arlene K. Bolton and Mary V. Bolton.
The petitioner, John Hamman (the father), petitioned this court for certiorari review of the district court's affirmance of the county court's order granting a name change to Hamman's daughter at the request of his ex-wife. We granted certiorari to address two issues. First, we must determine whether the county court has jurisdiction to rule on the name change of a minor child of divorced parents under section 13-15-101, 6 C.R.S. (1973). Second, we must decide whether the county court abused its discretion or exceeded its jurisdiction when it granted a name change for a minor child at the request of the custodial parent, when the parents were divorced, and the non-custodial parent was not given notice or an opportunity to be heard. We conclude that the county court did have jurisdiction under section 13-15-101, but that the non-custodial parent was entitled to notice. We therefore conclude that the court erred in ordering the name change requested by the custodial parent without providing notice to the non-custodial parent. We reverse the district court's affirmance and remand with directions to the district court to remand to the county court for proceedings consistent with this opinion.
The petitioner and the respondent entered into a common law marriage in 1977. In the same year, a child was born of the marriage; the child's name was Arlene Hamman. When the parents' divorce decree was entered in 1982, the respondent was given custody of the daughter. The father was given reasonable visitation rights and child support obligations. Subsequently, the respondent remarried and began using her new husband's surname of Bolton. In 1986, the respondent filed a petition 1 in Jefferson County Court pursuant to sections 13-15-101 and -102, 6 C.R.S. (1973), requesting a name change for her daughter Arlene Hamman, who was eight years old at the time. She requested that the daughter's name be changed to Arlene Bolton.
On the same day that the petition was filed, a hearing was held in the county court. The judge elicited testimony from both Mary Bolton and Arlene Hamman. Mary Bolton gave the following testimony:
Q [the judge] Where is her father?
A [Mary Bolton] In Greeley.
Q What is her father's position with regard to her name change?
A He doesn't feel like he really wants her to, but she [Arlene] said then she can't change it until she gets older.
Q So he is opposed?
A Right, but she wants to do it very badly.
Q Tell me what the custody and support situations are.
A I have full custody of her. He pays child support of $145.00 a month, and he sees her every other weekend, depending upon if he has the time.
Q So with knowledge that he opposes it--
A Right.
Q --you are going ahead?
A Right, and she wants to go ahead and do it, too.
The county court granted the petition for the name change at the hearing. The notice by publication requirements of section 13-15-102 were met. 2 The father did not receive actual notice of the petition or the hearing. Hamman did not know his daughter's name had been changed until a week or two later when Arlene told him that her surname had been changed to Bolton.
When Hamman learned that his daughter's surname had been changed, he filed a motion to intervene under C.R.C.P. 24. The motion was denied by the county court. The father then filed a petition in the nature of a writ of prohibition under C.R.C.P. 106(a)(4) in Jefferson County District Court, asserting that the county court had exceeded its jurisdiction, abused its discretion, and denied his due process rights. The district court entered a written order affirming "the orders of the County Court granting the petition for the name change and denying the Plaintiff's Motion to Intervene." The father filed a petition for writ of certiorari with this court, and we granted certiorari on two issues.
The first issue we address is whether the county court has jurisdiction to rule upon a petition requesting a name change for a minor child when the child's parents are divorced. The father presents alternative arguments, suggesting that the county court cannot have jurisdiction over a child's name change because that jurisdiction creates a conflict with either the Children's Code or Colorado's Uniform Dissolution of Marriage Act. We disagree.
The father contends that only the juvenile court or a district court hearing juvenile matters has exclusive original jurisdiction of a name change petition, based on the statutory definition of "residual parental rights and duties" and the portion of the Children's Code 3 which provides:
l9-1-104. Jurisdiction. (1) Except as otherwise provided by law, the juvenile court shall have exclusive original jurisdiction in proceedings: ... (e) To terminate the legal parent-child relationship, including termination of residual parental rights and duties, as defined in section 19-1-103(24); ...
8B C.R.S. (1986) (emphasis added).
Section 19-1-103(24) states:
"Residual parental rights and responsibilities" means those rights and responsibilities remaining with the parent after legal custody, guardianship of the person, or both have been vested in another person, agency, or institution, including, but not necessarily limited to, the responsibility for support, the right to consent to adoption, the right to reasonable visitation unless restricted by the court, and the right to determine the child's religious affiliation.
8B C.R.S. (1986). The father argues that these two provisions of the Children's Code require the conclusion that only the juvenile court has jurisdiction to rule upon the name change of a minor child. We disagree.
The juvenile court has "no jurisdiction beyond that expressly given by statute," and the statute primarily provides jurisdiction "where children are found delinquent or have been so circumstanced, neglected or imposed upon as to require the state to take over their custody or act otherwise for their protection." Everett v. Barry, 127 Colo. 34, 39, 252 P.2d 826, 829 (1953). The jurisdictional provision, section 19-1-104, also provides "exclusive original jurisdiction" in juvenile court for issuance of support orders, determinations of parentage, adoption orders, and other specific matters which have no relationship to the case at bar. § 19-1-104(1)(f)-(m). The provision relied on by the father grants jurisdiction to the juvenile court in proceedings to "terminate the legal parent-child relationship." § 19-1-104(1)(e). The name change proceeding at issue here bears no relationship to a proceeding terminating a parent-child relationship. Nowhere in the Children's Code do we find a jurisdictional provision supporting the argument that juvenile courts have "exclusive original jurisdiction" over a minor child's name change.
The father's second jurisdictional argument is that jurisdiction is precluded in the county court because the district court has jurisdiction to order a name change as part of a dissolution proceeding that is properly before the district court. The jurisdictional language of the name change statute requires that a person desiring a name change file a petition and affidavit in "the district, superior, or county court in the county of the petitioner's residence." § 13-15-101, 6 C.R.S. (1973). 4 He suggests that because a district court has jurisdiction to order a name change in certain limited circumstances, the county court should not have jurisdiction under the name change statute.
In In re Marriage of Nguyen, 684 P.2d 258 (Colo.App.1983), cert. denied, 469 U.S. 1108, 105 S.Ct. 785, 83 L.Ed.2d 779 (1985), the court of appeals recognized that Colorado law provides for concurrent jurisdiction in name change proceedings. The court noted that the name change procedure found in section 13-15-101 "is in addition to, not in exclusion of, the common law method for change of name." Id. at 260. Relying on this distinction, the court of appeals held that "the [district] court has the power, founded in common law, to order a change of name of a minor child of the parties in a dissolution of marriage action," even though there is no express authorization to do so under the Uniform Dissolution of Marriage Act. 5 The court of appeals held:
[T]he court should consider those factors applicable to a statutory name change in determining whether to grant a parent's request.... [A] court has wide discretion in ordering a change of name and should not deny an application unless special circumstances were found to exist. ... [S]uch a special circumstance might exist if the change contributed to the estrangement of the child from a non-custodial parent who wishes to foster and preserve the parental relationship.
Nguyen, 684 P.2d at 260. This common law right is not governed by a specific provision in the statute. A name change in a dissolution can be ordered only when the district court has retained jurisdiction over the parties seeking dissolution, and can only provide for name changes of the spouses and children involved during the course of the dissolution proceeding.
In contrast, all other persons seeking a name change may proceed under ...
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