In re S.m.-R.

• Decision Date: 23 November 2016
• Docket Number: NO. 02-15-00287-CV,02-15-00287-CV
• Parties: IN THE INTEREST OF S.M.-R., A CHILD
• Court: Texas Court of Appeals

IN THE INTEREST OF S.M.-R., A CHILD

NO. 02-15-00287-CV

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

November 23, 2016

FROM THE 231ST DISTRICT COURT OF TARRANT COUNTY

TRIAL COURT NO. 231-556936-14

MEMORANDUM OPINION¹

Pro se appellant D.M. (Mother) appeals from the trial court's "Final Order Establishing the Parent-Child Relationship" between her daughter S.M.-R. (Stacy) and appellee J.R. (Father).² In three points, Mother contends that the trial court erred by granting Father's request to change Stacy's name to include his surname, by limiting Father's payment of retroactive child support, and byordering her to pay "attorney's fees" (or not requiring Father to pay attorney's fees). We affirm.

Background Facts

In May 2014, the State, represented by the Office of the Attorney General, filed a petition to establish the parent-child relationship between Stacy and Father.³ The State asked the trial court to adjudicate Father's parentage of Stacy, to appoint "appropriate conservators" of Stacy, and to order Father to pay current and retroactive child support. The State also asked the trial court to order Father to pay the costs of the suit. Stacy had lived with Mother since birth, and Father had not previously paid child support.

At first, Father answered with a general denial. He later filed a counterpetition in which he conceded that he is Stacy's father and asked the trial court to appoint him as a managing conservator with the right to designate her primary residence.

In October 2014, the trial court signed a temporary order. The court found that Father is Stacy's father, appointed Mother and Father as her joint managing conservators, gave Mother the exclusive right to designate her primary residence, gave each parent periods of possession, and ordered Father to pay $202 per month in child support beginning on November 1, 2014.

In November 2014, appearing pro se, Mother filed a motion for the trial court to modify the temporary order. Among other requests, she asked to be named Stacy's sole managing conservator. The record does not contain any ruling on Mother's modification motion.

In August 2015, the trial court held an evidentiary hearing. Following that hearing, the court signed a Final Order Establishing the Parent-Child Relationship. In the order, the trial court changed Stacy's surname so that it contained a hyphenated combination of Mother's and Father's surnames. The court appointed Mother and Father as Stacy's joint managing conservators and gave Mother the right to designate her primary residence. The court ordered Father to pay $351 per month⁴ in current child support beginning on September 1, 2015 and to pay $4,570 in retroactive child support (at a rate of $70 per month) for the period of January 1, 2013 to November 1, 2014 (the date that Father began paying child support under the temporary order).⁵ The court ordered Mother and Father to each pay half of the court costs associated with thesuit, but the court did not explicitly require either party to pay attorney's fees. Mother brought this appeal.

Name Change

In her first point, Mother contends that the trial court erred by changing Stacy's surname to include a hyphenated combination of Mother's and Father's surnames rather than Mother's surname only. We review a trial court's ruling on a parent's request to change the name of a child for an abuse of discretion. Anderson v. Dainard, 478 S.W.3d 147, 150 (Tex. App.—Houston [1st Dist.] 2015, no pet.); In re Guthrie, 45 S.W.3d 719, 723 (Tex. App.—Dallas 2001, pet. denied). A trial court abuses its discretion when it acts in an arbitrary or unreasonable manner or if it acts without reference to any guiding rules or principles. Anderson, 478 S.W.3d at 150. Our analysis on whether the trial court abused its discretion employs a two-pronged inquiry: "(1) whether the trial court had sufficient information upon which to exercise its discretion[,] and (2) whether the trial court erred in its application of discretion." Id. Merely because a trial court may decide a matter within its discretion in a different manner than an appellate court would in a similar circumstance does not demonstrate that an abuse of discretion has occurred. Found. Assessment, Inc. v. O'Connor, 426 S.W.3d 827, 831 (Tex. App.—Fort Worth 2014, pet. denied). An abuse of discretion does not occur when some evidence of substantive and probative character supports the trial court's decision. H.E.B., L.L.C. v. Ardinger, 369 S.W.3d 496, 520 (Tex. App.—Fort Worth 2012, no pet.).

The family code states that in an order adjudicating parentage, on "request of a party and for good cause shown, the court may order that the name of the child be changed." Tex. Fam. Code Ann. § 160.636(e) (West Supp. 2016). Another part of the family code states that a trial court may change the name of a child if the change is in the child's best interest. Id. § 45.004(a)(1) (West 2014); see also id. § 153.002 (West 2014) ("The best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child.").

The good cause requirement of section 160.636(e) tacitly includes the best-interest-of-the-child requirement of section 45.004(a)(1); indeed, "the best interest of a child will . . . be considered good cause for changing the child's name." Anderson, 478 S.W.3d at 151 n.1 (quoting In re H.S.B., 401 S.W.3d 77, 81 n.2 (Tex. App.—Houston [14th Dist.] 2011, no pet.)); In re M.C.F., 121 S.W.3d 891, 895 (Tex. App.—Fort Worth 2003, no pet.) ("[W]hen reviewing the decision of a trial court to determine whether good cause was shown for changing a child's name in a proceeding to establish paternity under chapter 160, we conclude that the trial court must then also consider whether the change is in the best interest of the child."). "The child's best interest is the determinative issue; the interests of the parents are irrelevant." Anderson, 478 S.W.3d at 151; see H.S.B., 401 S.W.3d at 83. Our sister courts have used the following non-exclusive factors to discern the best interest of a child in comparing the child's original name to a proposed name:

(1) the name that would best avoid anxiety, embarrassment, inconvenience, confusion, or disruption for the child, which may include consideration of parental misconduct and the degree of community respect (or disrespect) associated with the name;

(2) the name that would best help the child's associational identity within a family unit, which may include whether a change in name would positively or negatively affect the bond between the child and either parent or the parents' families;

(3) assurances by the parent whose surname the child will bear that the parent will not change his or her surname at a later time;

(4) the length of time the child has used one surname and the level of identity the child has with the surname;

(5) the child's preference, along with the age and maturity of the child; and

(6) whether either parent is motivated by concerns other than the child's best interest—for example, an attempt to alienate the child from the other parent.

Anderson, 478 S.W.3d at 151 (citing In re A.E.M., 455 S.W.3d 684, 690 (Tex. App.—Houston [1st Dist.] 2014, no pet.)); see H.S.B., 401 S.W.3d at 84; see also In re T.G.-S.L., No. 02-12-00391-CV, 2013 WL 43738, at *3 (Tex. App.—Fort Worth Jan. 4, 2013, no pet.) (mem. op.) (reciting some the factors stated in Anderson).

Father testified that he wanted Stacy's name changed because he "believe[d]" that doing so was important. Later, he testified that he wanted Mother's surname to be stricken from Stacy's surname even though Stacy had lived the first four years of her life with Mother. He explained, "I'm still the father, and the father's last name -- in the way I was brought up -- should be the lastname of the child that is his." When asked whether any reason other than his tradition supported the change, Father said, "[I]f she's on my insurance, it makes it easier for me so I don't have to go and prove that this is my child . . . . [I]t makes it more easy flowing." Father also testified that incorporating both parents' last names could help Stacy facilitate a bond with them, although he acknowledged that it would not "bother [Stacy] if [his] name stayed off of her name."

When Mother was asked why she opposed a name change, she testified,

[Stacy] is four-and-a-half. She already knows how to spell her name, write her name. She knows what her name is. The confusion we're having right now is when she goes over to [Father's] house, they call her [by his surname]. So she comes home saying, my last name is [Father's surname].

It's more confusing on her than anything for her to try to figure out who she is, and so the objection for the name change is it's in the best interest of her to keep it how it is so it's not confusing.

Under this evidence and the remaining evidence in the record, we conclude that the trial court did not abuse its discretion by granting the name change. Although Father's testimony about the reason he was seeking a name change initially focused on his own interests in preserving tradition,⁶ he later emphasized goals that served Stacy's best interests, including avoidingobstacles in securing her insurance and helping her bond with both parents. Cf. Anderson, 478 S.W.3d at 153 ("[I]t was not an abuse of discretion to determine that it was in A.A.A.'s best interest to change her surname in order to facilitate the formation of a father-daughter bond . . . ."). Furthermore, the trial court could have reasonably found that the confusion about Stacy's identity that Mother described could be alleviated by her bearing a surname containing both Mother's and Father's surnames and therefore associating her identity with both of them. Cf. R.E.G., 2009 WL 3778014, at *5 ("The court's ordered name change of "Garcia-Padilla" allows the child to identify equally with two family units that are deeply...