In re Azar

• Decision Date: 15 February 2013
• Docket Number: No. 107,931.,107,931.
• Citation: 294 P.3d 362
• Parties: In the Matter of the Petition of Ethan AZAR, a Minor Child, by His Next Friend, Ray Jagoda, Appellant, To Change His Name, (Camille Azar), Appellee.
• Court: Kansas Court of Appeals

294 P.3d 362

In the Matter of the Petition of Ethan AZAR, a Minor Child, by His Next Friend, Ray Jagoda, Appellant, To Change His Name, (Camille Azar), Appellee.

No. 107,931.

Court of Appeals of Kansas.

Feb. 15, 2013.

Appeal from Johnson District Court; Thomas E. Foster, Judge.

Micheline Z. Burger, of Olathe, and Sheldon Bernstein, of Bernstein, Rodarte & Hatheway, PC, of Kansas City, Missouri, for appellant.

Lewanna Bell–Lloyd, of Olathe, for appellee.

Before ARNOLD–BURGER, P.J., GREEN, J., and HEBERT, S.J.

MEMORANDUM OPINION

PER CURIAM.

Ray Jagoda (Father) and Camille Azar (Mother) are the parents of Ethan Azar (Son). The two were never married, and in 2004 the circuit court in Jackson County, Missouri, entered a judgment establishing Father's paternity and awarding Father sole custody. In 2006, Mother registered the judgment in Johnson County and filed a motion to modify the custody order. She sought joint legal custody and liberal unsupervised parenting time. Father subsequently filed, in the same case, a motion to change Son's name. Four years after the initial filing in Johnson County and following a trial, the district court ruled on the host of issues raised in Mother's modification motion, denying most of them and also denying Father's name-change motion. Mother appealed to this court; Father did not cross-appeal. This court affirmed the district court. Azar v. Jagoda, No. 105,392, 2011 WL 4444507 (Kan.App.2011) (unpublished opinion).

After this court issued a mandate, Father petitioned the district court in 2011, under Chapter 60, to change Son's name. The district court determined that under the doctrines of res judicata and collateral estoppel the court's previous ruling against Father's name-change motion barred him from raising the issue anew. Moreover, the court determined that Father's new petition did not make any new arguments necessary to support a rehearing on the issue.

Father raises several issues on appeal and, most importantly, argues the court did not have jurisdiction to rule on Father's name-change motion in the 2006 case. Therefore, he claims the court's ruling with regards to his name change motion was void and thus precludes application of the doctrines of res judicata or collateral estoppel. We agree for the reasons stated herein and reverse and remand the case to the district court for a hearing on Father's petition for name change.

Factual and Procedural History

Mother and Father are the natural parents of Son. The two never married, and within a few months of Son's birth, Father filed a paternity action in Jackson County, Missouri. After 2 years of litigation, the Jackson County court awarded Father sole legal and physical custody of Son, and the court permitted Mother to have restricted visitation with Son.

Two years later, after all three had moved to Kansas, Mother filed motions in Johnson County to register the Missouri judgment and to modify the Jackson County child-custody order. She sought joint legal custody and liberal unsupervised parenting time. Subsequently, Father filed a motion in Jackson County to change Son's name, but because Mother, Father, and Son all lived in Kansas, the circuit court in Jackson County dismissed Father's motion without prejudice because, the court reasoned, it lacked jurisdiction over the matter. Father then filed a motion, in the same Johnson County case to change Son's name. The motion is fairly detailed and observes that Son has been using Father's last name for the preceding 4 years (Son was over 6 years old by the time Father's name change motion was filed), that changing Son's name would be in his best interests, and that Mother would not consent to a name change. The motion, however, does not specifically cite any statutory authority beyond the original case caption which listed Chapters 38 and 60.

After the case languished in the district court for almost 4 years due to the litigious nature of the parents, the district court held a trial and orally ruled on Mother's custody-modification motion and Father's name-change motion on February 16, 2010. With respect to the name-change motion, the court noted that once Father obtained custody of Son he unilaterally signed Son up with certain agencies under Father's surname, even though Mother's surname was on Son's birth certificate. This amounted to “basically a common law name change.” The court denied Father's request for name change, finding:

“The Court denies the request for name change. The Court finds that [Son] had his name for eight, over eight years now. That to change his name at this point would only cause confusion for him, and would be a wedge that father could use to further drive between the child and the mother, and Court believes it's just an indication, one of those things that father is doing to damage the bond between the child and the mother. The Court finds it's in the child's best interest to keep the name that he has now.”

The court made note of this decision in a subsequent journal entry, the relevant part of which simply states: “The court denies defendant's motion to change the name of the minor child.”

Although Mother appealed several of the district court's adverse rulings, this court ultimately affirmed the district court's rulings. See Azar, 2011 WL 4444507, at *1. Father, however, did not cross-appeal the district court's ruling denying his request to change Son's name.

Two weeks after this court issued a mandate, in late 2011, Father petitioned the district court, under Chapter 60 of Kansas Statutes Annotated, to change Son's name. Notably, the petition states that the court-appointed special advocate (CASA) representative and Son's psychiatrist, Dr. James Hunter, both conclude that Son's name should be changed to include Father's last name. The petition also states that Son wants the same. These statements were not made in Father's name-change motion in the 2006 case. Although not in the appellate record, Mother filed a motion to dismiss the new petition.

A hearing ensued in February 2012. Mother argued that Father's petition should be barred under the doctrines of collateral estoppel and res judicata. In rebuttal, Father cited the recent opinion of Stabel v. Meyer, 45 Kan.App.2d 941, 259 P.3d 737 (2011), to argue that those doctrines could not apply because the court did not have jurisdiction to rule upon Father's initial name-change motion. Father also argued that even if the court had jurisdiction to rule upon the motion in the 2006 case, circumstances had changed in the 2 years since the ruling to warrant a hearing on the new name-change petition.

The district court ultimately agreed with Mother and determined that collateral estoppel and res judicata precluded Father, under the alleged facts, from seeking to change Son's name under the applicable statute, K.S.A. 60–1402(c). The court thoroughly explained its reasoning:

“This Court simply finds that at this time, [there have] been no allegations that are any different from the allegations that were presented in the [2006] case and tried, and the final judgment from the mandate of the Court of Appeals just two weeks before the filing of this Petition. There could be certain facts that may be pled in the future that would give reasonable cause for ordering the name change of the child, but in this case, it appears to be nothing other than just refiling the same motion with a different title on it, and claiming that we're proceeding under Chapter 60 rather than under Chapter 38 when the original motion indicated it was proceeding under Chapter 60 and Chapter 38. So, I'm granting the motion to dismiss for those reasons.”

The journal entry of sentencing largely reiterates this statement, observing that Father's new petition failed to raise any new allegations or change of circumstances to support a rehearing on the issue.

Father appeals.

Analysis

Our standard of review is unlimited.

This court has unlimited review over the legal question of whether a district court had statutory authority to change a minor's name. Stabel, 45 Kan.App.2d at 942. Appellate courts also have unlimited review when called upon to interpret statutes. 45 Kan.App.2d at 942 (citing Unruh v. Purina Mills, 289 Kan. 1185, 1193, 221 P.3d 1130 [2009] ).

Kansas law applies to the 2006 motion to modify proceeding.

The first issue this court must address is the one Mother frames as a conflict of laws issue (also known as choice of laws). Father argues, for reasons that will be set forth in more detail later in this opinion that under Kansas law the district court lacked subject matter jurisdiction to rule on his motion for name change filed in the 2006 case (Motion). If the decision was made without jurisdiction, then his current action cannot be barred by the doctrines of res judicata and collateral estoppel. See In re Estate of Heiman, 44 Kan.App.2d 764, 766, 241 P.3d 161 (2010) (“If a court lacks subject matter jurisdiction, its actions have no legal force or effect and cannot bind the parties.”). But Mother claims that because Missouri law allows for a name change in a paternity action, our district court had subject matter jurisdiction to consider the issue when it was raised in Father's Motion. See Jenkins v. Austin, 255 S.W.3d 24 (Mo.App.2008) (trial court considering mother's petition to establish paternity, custody, and support for child born out of wedlock had jurisdiction to order a name change in the best interest of the child); see also Mo.Rev.Stat. § 210.841.3(5) (Paternity judgment or order may contain provisions concerning “[a]ny matter in the best interest of the child.”).

We find this case does not present a choice of laws issue. There is no dispute that Kansas properly accepted jurisdiction of Mother's 2006 petition for modification of custody orders under the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”). Under the UCCJEA, Kansas has jurisdiction to modify child custody orders from...