In the Matter of Brian Alexander Guthrie

• Decision Date: 04 April 2001
• Docket Number: No. 05-98-01437-CV,05-98-01437-CV
• Citation: 45 S.W.3d 719
• Parties: (Tex.App.-Dallas 2001) IN THE MATTER OF BRIAN ALEXANDER GUTHRIE, A CHILD
• Court: Texas Court of Appeals

Page 719

45 S.W.3d 719 (Tex.App.-Dallas 2001)

IN THE MATTER OF BRIAN ALEXANDER GUTHRIE, A CHILD

No. 05-98-01437-CV

Court of Appeals of Texas, Dallas

April 4, 2001

On Appeal from the 380th Judicial District Court Collin County, Texas Trial Court Cause No. 380-51693-96

[Copyrighted Material Omitted] Before Justices FitzGerald, Richter, and Rosenberg ¹

OPINION

Opinion By Justice ROSENBERG.

This is a voluntary parentage case. Mark Roger Buckley, the biological father of Brian Alexander Guthrie, sought to establish a parental relationship with his son, as well as establish visitation, child support, and a change of the child's last name to his. After a hearing, the trial court ordered the name change and denied retroactive child support. In four points of error, Elene Therese Guthrie, the mother, appeals the judgment, alleging the trial court did not file findings of fact and conclusions of law, the name change was not in the best interest of the child, and the trial court erred in overruling her objection to the admission of a rule 11 agreement into evidence and in refusing to award retroactive child support. We overrule Guthrie's points of error and affirm the trial court's judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Buckley and Guthrie had a relationship while she lived in California, and Guthrie became pregnant. During her pregnancy, Guthrie filed suit in California to establish paternity. That suit was dismissed after Guthrie moved to Connecticut and gave birth to the child. Guthrie then moved with the child to Collin County, Texas, where Buckley filed this cause. Guthrie contested Buckley's paternity. The trial court ordered blood tests. After the tests, Guthrie filed a counter petition requesting that the court establish the child's parentage. In addition to a request to establish support and visitation, she requested retroactive child support from the date of Buckley's Texas petition and payment of an equitable portion of all pre- and post-natal-related health care expenses for her and the child.

The case was mediated, and all issues were resolved except the name of the child and the amount, if any, of retroactive support. After a bench trial, the court ordered the child's last name changed to Buckley and denied the request for retroactive support. The trial court denied Guthrie's motion for new trial. Guthrie appeals these rulings in the judgment.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

In her third point of error, Guthrie complains that the trial court did not file requested findings of fact and conclusions of law. Guthrie contends that she has made a proper request. Buckley responds that her request was not proper.

In cases involving the parent-child relationship, an appellant may be entitled to two types of findings of fact and conclusions of law. The first is pursuant to Texas Rule of Civil Procedure 296. This rule requires that a request be filed within twenty days after the judgment is signed. Tex. R. Civ. P. 296. If the court fails to file the findings within twenty days of the request, the appellant must file a notice of past due findings of fact and conclusions of law within thirty days after filing the original request. Tex. R. Civ. P. 297. The failure to file a notice of past due findings of fact waives the right to complain about the trial court's failure to file findings of fact and conclusions of law. See Las Vegas Pecan & Cattle Co. v. Zavala County, 682 S.W.2d 254, 255-56 (Tex. 1984); Monroe v. Frank, 936 S.W.2d 654, 658 (Tex. App.-Dallas 1996, writ dism'd w.o.j.). Guthrie requested findings of fact and conclusions of law pursuant to rule 296, but she failed to file a notice of past due findings of fact pursuant to rule 297 when the trial court did not make her requested findings. Therefore, Guthrie waived her complaint that the trial court failed to enter findings of fact and conclusions of law pursuant to the rules of civil procedure. See Monroe, 936 S.W.2d at 658.

The second type of findings of fact is pursuant to section 154.130 of the Texas Family Code, which provides for findings in child support orders. Tex. Fam. Code Ann. § 154.130 (Vernon 1996). The court is required to make findings if: (1) a party files a written request with the court not later than ten days after the hearing; (2) a party makes an oral request during the hearing; or (3) the amount of child support ordered by the court varies from the amount computed by applying the statutory guidelines. Id. § 154.130(a)(1)-(3). Guthrie made no written or oral request under this statute. Thus, this section applies if the amount of the support ordered deviated from the guidelines. Here, Guthrie complains about the failure to award retroactive support. Retroactive support concerns payment of child support for a period before a child support order. Section 154.130 is directed to the setting of monthly support. Therefore, the refusal to award any retroactive support does not constitute a deviation from the guidelines such that a statutory finding is required.

We overrule Guthrie's third point of error.

NAME CHANGE

In her first point of error, Guthrie contends that the trial court erred in changing the name of Brian Alexander Guthrie to Brian Alexander Buckley because the evidence did not support a finding that changing the child's name would be in the best interest of the child. She argues that the finding of paternity does not require a name change, and the father has no protected interest or constitutional right to have the child's name changed to his. Buckley responds that he does have a protected interest, Texas courts should recognize the custom and practice of children carrying the last names of their fathers as a factor in changing a child's name to that of the father, and it is in the best interest of the child to have Buckley's last name.

We review the trial court's granting of a name change under an abuse of discretion standard. Bennett v. Northcutt, 544 S.W.2d 703, 706-08 (Tex. Civ. App.-Dallas 1976, no writ) (per curiam). The test for abuse of discretion is not whether, in the opinion of this Court, the facts present an appropriate case for the trial court's actions. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241 (Tex. 1985). Rather, the test is whether the court acted without reference to any guiding rules and principles. Id. at 241-42. A trial court abuses its discretion as to factual matters when it acts unreasonably or arbitrarily. Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992) (orig. proceeding). A trial court abuses its discretion as to legal matters when it fails to analyze or apply the law correctly. Id. at 840.

A father has no constitutional right to have his children bear his last name. Newman v. King, 433 S.W.2d 420, 422-23 (Tex. 1968); Concha v. Concha, 808 S.W.2d 230, 231-32 (Tex. App.-El Paso 1991, no writ). The only protectable interest a father has in a child's name recognized by Texas courts is when the mother attempts to change the child's surname from the father's. G.K. v. K.A., 936 S.W.2d 70, 73 (Tex. App.-Austin 1996, writ denied); see, e.g., Newman, 433 S.W.2d at 423; In re Griffiths, 780 S.W.2d 899, 900 (Tex. App.-Amarillo 1989, no writ); Brown v. Carroll, 683 S.W.2d 61, 63 (Tex. App.-Tyler 1984, no writ); In re Baird, 610 S.W.2d 252, 254 (Tex. Civ. App.-Fort Worth 1980, no writ); Bennett, 544 S.W.2d at 707-08.

The standards for changing the name of a minor are controlled by the Texas Family Code. The family code provides that "[t]he court may order the name of a child changed if the change is in the best interest of the child." Tex. Fam. Code Ann. § 45.004(a) (Vernon 1996). The general rule is that courts will exercise the power to change a child's name reluctantly and only when the substantial welfare of the child requires it. Newman, 433 S.W.2d at 423; Bennett, 544 S.W.2d at 707. A parent's interest and desire is only a secondary consideration. In re J.K., 922 S.W.2d 220, 222 (Tex. App.-San Antonio 1996, no writ); Ex parte Taylor, 322 S.W.2d 309, 312 (Tex. Civ. App.-El Paso 1959, no writ). Texas has no statute giving the right to name a child to either parent. However, the name chosen by one of the parents will not be changed unless the dissident parent shows a good reason for such change. In re M. L. P., 621 S.W.2d 430, 431 (Tex. Civ. App.-San Antonio 1981, writ dism'd).

Although Buckley urges that we consider a custom or tradition of a child assuming the surname of the father as a best interest factor, we note that even a custom of carrying a father's surname within the marital relationship has not always been the situation in western societies. See Gubernat v. Deremer, 657 A.2d 856, 859-67 (N.J. 1995) (describing history of surnames and connecting tradition with emergence of women's legal and social rights). And there is no such custom when it comes to adopting a surname for a child born out of wedlock. See id. at 862, 864. Those children usually received their mother's surname. Id. at 864. Additionally, there is no Texas statutory requirement that a child receive his or her father's surname under any circumstance of birth. Further, in Texas any custom or tradition of a child receiving a father's surname does not override the best interest of the child. See Newman, 433 S.W.2d at 424; In re C.B.M., 14 S.W.3d 855, 862 (Tex. App.-Beaumont 2000, no pet.); G.K., 936 S.W.2d at 73. Finally, under the Texas Equal Rights Amendment, we must not give preference to one parent's name over another on the basis of whether the parent is the father or the mother. Tex. Const. art. I, § 3a ("Equality under the law shall not be denied or abridged because of sex, race, color, creed, or national origin."). Texas emphasizes an equality between parents. See Tex. Fam. Code Ann. § 153.003 (prohibiting discrimination based on sex in determining conservatorship), § 154.010 (child support to be determined without regard to sex of parent paying or receiving, or sex of child) (Vern...