Huffman v. Fisher

• Decision Date: 18 March 1999
• Docket Number: No. 98-1315,98-1315
• Citation: 987 S.W.2d 269,337 Ark. 58
• Parties: Kara Kathleen HUFFMAN, a minor, and William H. Huffman and Kathryn Huffman, guardians of the person of Jacob Austen Huffman, a minor, Appellants, v. John Nicholas FISHER, Appellee.
• Court: Arkansas Supreme Court

Page 269

987 S.W.2d 269

337 Ark. 58

Kara Kathleen HUFFMAN, a minor, and William H. Huffman and Kathryn Huffman, guardians of the person of Jacob Austen Huffman, a minor, Appellants, v.John Nicholas FISHER, Appellee.

No. 98-1315.

Supreme Court of Arkansas.

March 18, 1999.

Tom B. Smith, Wynne, for appellants.

Robert M. Ford, Wynne, for appellee.

RAY THORNTON, Justice.

The question presented by this appeal concerns the right of a noncustodial parent, in cases involving disputes over a child's surname, to insist that the child bear his surname.AppellantKara Kathleen Huffman, mother of Jacob Austen Huffman(Fisher), brings this appeal of the decision of the Cross County Chancery Court to change her son's surname to that of his father.We reverse the decision of the chancellor and remand for further findings consistent with this opinion.

AppellantKara Kathleen Huffman was sixteen years old and unmarried when she gave birth to a son on May 18, 1996.She named her son Jacob Austen Huffman and filed a Certificate of Birth with the Arkansas Department of Health listing appelleeJohn Nicholas Fisher("Nick") as the father.In August, 1996, the Arkansas Office of Child Support Enforcement filed suit on behalf of Kara against Nick for child support.Nick filed a third-party complaint in which he admitted that he was the child's father, and he asked that child support be set and reasonable visitation be established.He also requested that the child's surname be changed to Fisher.

At a hearing on April 23, 1997, before the Cross County Chancery Court, several witnesses testified concerning whether the child's surname should be changed from his custodial parent's surname to his father's surname.The trial court summarized the testimony and its findings in a letter opinion filed on June 3, 1997.The trial court found that Nick had not paid any child support since Jacob's birth except for $100.00, although his parents had paid a portion of Kara's lying-in expenses.The trial court also found that Nick had encouraged Kara, a Catholic, to have an abortion, and that he had counseled her to keep her condition from her parents.Furthermore, there was testimony that Nick had become angry with Kara for getting pregnant and that he had ridiculed her physical appearance during the pregnancy.Since Jacob's birth, the Fishers had exercised visitation with Jacob in their home on alternate Saturdays from 10:00 a.m. until 6:00 p.m.

Nick testified at trial that he wanted Jacob's surname to be changed to Fisher because "that's how I grew up" and he didn't think he, as a father, should be treated any differently because he had a child out of wedlock.He wanted the child's name changed because there was the possibility that Kara would marry in the future and take her husband's name, leaving Jacob with a name different from his mother's.Finally, he stated that Jacob would be better labeled with a different name from the Huffman family that would be raising him.

Nick's uncle testified that the Fisher family was a good family and that it would be the proper thing for Jacob to bear the Fisher name, although he could think of no advantage or disadvantage to having one name as opposed to the other.Nick's father testified that it would be awkward for Nick to explain to others why the child bore his mother's last name, but that such a scenario probably wouldn't arise for Kara, and that it was only right for the child to be known as Fisher.

Kara Huffman testified that Nick had not provided her with any financial or emotional support during her pregnancy and that she had made the decision to name Jacob with her family name because he would be raised in her family and would spend his life with her.Kara further offered to retain her maiden name in the event she chose to marry in the future if it would be in Jacob's best interest.

The trial court noted in its letter opinion that it was initially inclined to change the child's name to Fisher based upon concerns that Jacob would experience stigma in adolescence The court also noted the applicability of our decision in Reaves v. Herman, 309 Ark. 370, 830 S.W.2d 860(1992), where we held that there must be compelling facts to show that it would be in the best interest of the child to change his surname.Although the trial court acknowledged that under Reaves there appeared to be no compelling reason to change Jacob's name to Fisher, it was "still convinced that, in spite of the above, that it would be in Jacob's best interest that his surname be Fisher."

The trial court concluded with the following explanation:

When Jacob gets older, he will be faced with the task of explaining to his friends why he does not have his father's name.If Kara never marries and has no other children, perhaps this would not be so difficult nor embarrassing.However, if Kara remarries [sic ], she may very well follow a time-honored tradition and take her husband's name, although she is certainly not required to do so.If Jacob retains the Huffman surname, he will then not have the name of his biological father nor his biological mother.If Kara remarries [sic ] and does not change her surname and she has another child, will she give that child the surname of Huffman so that he/she will have the same name as Jacob or will she give that child the surname of her husband?Certainly most, if not all, of the above is speculation.However, I believe it should be given weight.I still believe that it would be less confusing and embarrassing for Jacob if he took his father's name ...

A child needs a surname he can connect with for a lifetime; taking the surname of the mother opens up too many opportunities for the child to be later left without that connection.

* * * *

[T]he Reaves case is a very strong case in favor of Kara ... We should concentrate on the use of which name will cause Jacob less embarrassment and require him to do less explaining to his friends during his adolescence and young adulthood ...

It is my opinion that there is a compelling reason to change Jacob's surname to Fisher.That compelling reason is stated above ... Although this [children with the mother's surname] happens often, it is not the norm in this locale.The norm in this locale is that the child will have the same surname as the father.Whether that is right or wrong, that is the norm in this locale.Without the surname of Fisher, Jacob will be faced with the task of explaining to his peers why his name is different.If Jacob keeps the surname of Huffman, and if Kara marries and takes the name of her husband, Jacob no longer has the surname of either parent.What is of importance to this court is that Jacob have a surname that he is most likely to be able to connect with one of his parents.The most likelihood of that happening is for Jacob to have the surname of Fisher.

Kara Huffman, a minor, and Jacob Huffman, by and through her parents and the guardians of the person, brought this appeal to the Arkansas Court of Appeals, alleging that the trial court erred in finding that the surname of Jacob should be changed from Huffman to Fisher because the father had failed to present any compelling facts to show that it would be in Jacob's best interest to change the surname he had carried since birth, and requesting that the best interest rationale adopted by this court in Reaves and in McCullough v. Henderson, 304 Ark. 689, 804 S.W.2d 368(1991) be clarified by the court to adopt a presumption in favor of the surname chosen for a child by the child's custodial parent.¹The court of appeals affirmed the trial court by a tie vote, and this court accepted review of the case pursuant to Ark. Sup.Ct. R. 1-2(e)(i).We conduct our review as though the case had been originally appealed to this court.Ark. Sup.Ct. R. 1-2(e).

The use of surnames dates from the Norman conquest, when the growth of population and the development of cities required a means of distinguishing between individuals with identical given names.The Normans also introduced a number of social practices, such as the imposition of a feudal land system and the use of primogeniture as a system of inheritance, that likewise spurred the development of surnames.Gubernat v. Deremer, 140 N.J. 120, 126-127, 657 A.2d 856, 859-60(1995)(citing Beverly S. Seng, Like Father, Like Child: The Rights of Parents in their Children's Surnames, 70 VA. L. REV . 1303, 1323(1984)).The surname, however, was not as a rule inherited from the father, but was adopted or bestowed based upon one's occupation, place of habitation,appearance or other characteristics.Sometimes surnames expressing kinship were chosen, but "patronymics, a name derived from that of the father, was neither compelled nor universal."Gubernat, 140 N.J. at 128, 657 A.2d at 860(citingSmith v. U.S. Cas. Co., 197 N.Y. 420, 90 N.E. 947(1910)).Indeed, it was not uncommon for male children, either illegitimate or the son of a highly respected or dominant married or widowed woman, to be spoken of as belonging to the mother.Id., (citingSeng, supra, at 1321-22).

It was only after the fourteenth century that surnames began to serve as hereditary family names, in part due to the contingency of inheritance of property upon an heir's retention of the surname associated with that property.Gubernat, 140 N.J. at 129, 657 A.2d at 861(citingRichard H. Thornton, Note, The Controversy Over Children's Surnames: Familial Autonomy, Equal Protection and the Child's Best Interests, 1979 UTAH L. REv. 303, 305(1979)).A married woman in those times could not maintain suit in her own name; the male was the legal representative of the family."The custom of patrilineal succession seems to have been a response to England's medieval social and legal system, which came to vest all rights of ownership and management of marital property in the husband."Id., (citingIn re Schiffman, 28 Cal.3d 640, 620 P.2d 579, 169 Cal.Rptr. 918(1980)).

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