In re H.S.B.
Decision Date | 01 March 2011 |
Docket Number | No. 14–10–00659–CV.,14–10–00659–CV. |
Parties | In the Interest of H.S.B., a child. |
Court | Texas Court of Appeals |
OPINION TEXT STARTS HERE
Roy Patrick Norris, Houston, for Appellant.
Stephen C. Parten, Spring, for Appellee.
Panel consists of Justices ANDERSON, SEYMORE, and McCALLY.
Appellant Amber Brittain appeals from an order adjudicating parentage, in which the court ordered the surname of a child born to Brittain and appellee David Chalifoux to be changed from Brittain to Chalifoux. In three issues, Brittain argues that the trial court impermissibly considered “tradition” evidence, and the evidence is legally and factually insufficient to support the trial court's findings that the name change would be in the child's best interest and that there was good cause for the name change. We reverse the portion of the trial court's order granting the name change and render judgment that the child's surname shall remain Brittain.
Brittain and Chalifoux were coworkers and friends when they had a brief romantic relationship that resulted in the conception and birth of their son, H.S.B. They did not marry, and Brittain gave birth to the child on May 25, 2009. The child was given his mother's surname. A few weeks after the birth, Chalifoux filed a petition to adjudicate parentage to establish his paternal rights to the child and his support obligations. Brittain and Chalifoux entered mediation and agreed on nearly every term, including that the parents would be joint managing conservators, Brittain would have the exclusive right to designate the child's residence, and Chalifoux would have certain visitation rights and financial support obligations. The single issue they could not agree upon was the surname of the child.
At a bench trial on March 15, 2010, both Chalifoux and Brittain testified on the name change issue. Chalifoux's direct testimony, in full, was as follows:
Q. Are you asking the Court to change this child's name to [H.S.] Chalifoux?
A. Yes.
Q. You think that's in the best interest of your child?
A. Yes.
Q. And you filed this case, didn't you?
A. Yes.
Q. And you pursued this diligently so that you could have a relationship with your child?
A. Yes.
Q. It wasn't always easy, was it?
A. No, it was not.
Q. But you were determined to be involved in your child's life; is that correct?
A. Yes.
Q. And you think it's in the best interest that he have your last name; is that correct?
A. Yes.
Q. And is it—is it your belief that he should have your last name because that is the tradition in this country?
A. Yes.
Q. And also because you think it will be better for your child?
A. Yes.
On cross, he could not provide a specific reason for changing the child's name:
Q. Do you have any reason why keeping the name Brittain would be detrimental to the child?
A. It's—he should have my last name.
Q. Do you have any other reason why it should be changed to Chalifoux.
A. No, I do not.
It was uncontested that Chalifoux had agreed to help financially support the child and reimburse Brittain for all prenatal and postnatal expenses and insurance costs. Chalifoux also testified that it had been difficult to bond with his child during supervised visits, but he had made an effort to do so.
Brittain testified that she has another son who lives with her, the other son is older than H.S.B. by less than three years, and he has the Brittain surname. Both of her sons have first names that end with the syllable “son,” which she chose to encourage a sibling bond. Because of their closeness in age, Brittain explained that the boys would at times attend the same school. She worried that it would alienate H.S.B. to have a different name from his brother while they attended the same schools, lived in the same house, and attended the same church. She was concerned that it would lead to social awkwardness because the brothers will be together often at school and church. Brittain testified “from personal experience” that it is embarrassing and awkward to grow up with a different last name from one's siblings because the child is forced to explain to other children what two adults did to put the child in that situation.
She further testified that she would not change her surname if she ever chose to get married in the future, and she would not change either of her sons' names. She explained that her reasons for wanting to keep her child's last name was not to alienate Chalifoux from his son—Chalifoux was the first person Brittain told about the pregnancy, he attended several doctor's visits while she was pregnant, and she called him to the hospital on the day their son was born.
Brittain also testified about tradition. She said that she thought it was more traditional for a child to have the same surname as his or her siblings and the members of the same household. She acknowledged that it is traditional for children to bear their father's surname, but usually in that situation the parents have been married or the father is living in the same house.
Finally, the trial court allowed testimony about alleged misconduct by Chalifoux, over his objection. Brittain testified that Chalifoux had skipped, arrived late, or departed early from a number of visitation sessions with the child. He would pay medical bills but did not always ask about the welfare of the child. There was also evidence that the mediated settlement agreement included an unpaid amount of $4,200 for past support.
On May 3, 2010, the court ordered that the child's surname would be changed to Chalifoux, and the court later entered findings of fact and conclusions of law in which the court found that the name change would be in the best interest of the child.1 The court also found that Chalifoux “has maintained a significant relationship with the child.” This appeal followed.
In her first issue, Brittain argues that the trial court impermissibly considered evidence of tradition. In her second and third issues, Brittain challenges the sufficiency of the evidence for the trial court's findings that changing the child's name would be in the child's best interest and that Chalifoux had shown good cause for the name change. We hold that a court may consider evidence of tradition when determining if it is in a child's best interest to order a name change, but tradition alone is an insufficient ground for changing a child's name. We also hold that the trial court abused its discretion in ordering the name change because there was legally insufficient evidence to support a finding that changing the name was in the child's best interest.2
We review for an abuse of discretion a trial court's decision to change the name of a minor child. In re S.M.V., 287 S.W.3d 435, 446 (Tex.App.-Dallas 2009, no pet); In re A.C.B., No. 14–99–01379–CV, 2001 WL 931567, at *1 (Tex.App.-Houston [14th Dist.] Aug. 16, 2001, no pet.) (mem. op., not designated for publication); see Newman v. King, 433 S.W.2d 420, 424 (Tex.1968). A trial court abuses its discretion when its ruling is arbitrary, unreasonable, or without reference to guiding rules or legal principles. London v. London, 94 S.W.3d 139, 143 (Tex.App.-Houston [14th Dist.] 2002, no pet.).
We have explained that “insufficient evidence” is not an independent point of error when the standard of review is abuse of discretion, and the sufficiency of the evidence is merely a factor to consider. Id. at 143–44. For a court to act within its discretion to change a child's name, however, the record must contain some evidence of a substantial and probative character to support the trial court's decision. Zieba v. Martin, 928 S.W.2d 782, 787 (Tex.App.-Houston [14th Dist.] 1996, no writ). Accordingly, the abuse of discretion standard requires a two-pronged analysis: (1) whether the trial court had sufficient information upon which to exercise its discretion; and (2) whether the trial court erred in applying its discretion under the appropriate legal authorities. In re S.M.V., 287 S.W.3d at 446;In re M.C.F., 121 S.W.3d 891, 895 (Tex.App.-Fort Worth 2003, no pet.); see also Evans v. Evans, 14 S.W.3d 343, 346 (Tex.App.-Houston [14th Dist.] 2000, no pet.) (reviewing the trial court's division of property with similar two-pronged analysis).
A party's challenge to the sufficiency of the evidence when the standard of review is abuse of discretion, as in this case, implicates the first of the two inquiries. In re M.C.F., 121 S.W.3d at 895. Under a legal sufficiency review, we must determine whether the evidence would enable a reasonable and fair-minded person to reach the finding under review. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.2005). We credit favorable evidence if reasonable fact finders could and disregard contrary evidence unless reasonable fact finders could not. Id. A legal sufficiency challenge must be sustained when (1) the record shows a complete absence of evidence of a vital fact, (2) the court is barred from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a mere scintilla, or (4) the evidence establishes conclusively the opposite of the vital fact. Id. at 810;Wiese v. Pro Am Servs., Inc., 317 S.W.3d 857, 860 (Tex.App.-Houston [14th Dist.] 2010, no pet.).3
The use of a single surname is a well-entrenched custom in the United States, emanating from Anglo–Saxon patriarchal traditions.4 This custom is perhaps incapable of being gender-neutral for a child born out of wedlock, regardless of whether the paternal or maternal surname is selected for the child. For example, Chalifoux argued in the trial court that it is tradition in this country for a child to take his or her father's surname. This custom developed from various patriarchal notions, including that a man was the head of a family, a woman had no legal rights separate from that of her husband's, and only...
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