Leadingham ex rel. Smith v. Smith, 2000-CA-001533-DG.

• Decision Date: 07 September 2001
• Docket Number: No. 2000-CA-001533-DG.,2000-CA-001533-DG.
• Citation: 56 S.W.3d 420
• Parties: Denise LEADINGHAM, on behalf of Lacey Danielle SMITH, Appellant, v. Jeffrey S. SMITH, Appellees.
• Court: Kentucky Court of Appeals

56 S.W.3d 420

Denise LEADINGHAM, on behalf of Lacey Danielle SMITH, Appellant, v. Jeffrey S. SMITH, Appellees.

No. 2000-CA-001533-DG.

Court of Appeals of Kentucky.

September 7, 2001.

COPYRIGHT MATERIAL OMITTED

C. David Mussetter, Ashland, KY, for Appellant.

Mary Hall Sergent, Ashland, KY, for Appellee.

Before HUDDLESTON, KNOPF and TACKETT, Judges.

OPINION

HUDDLESTON, Judge.

The ties of common names and kindred blood and the affection that flows from these strong ties has fueled the controversy before us.

Denise Leadingham, the mother of Lacey Danielle Smith, appeals a circuit court order that reversed a district court judgment that changed Lacey's surname to Smith-Leadingham.

Lacey, a minor, was born of the marriage of Jeffrey S. Smith and Denise. When Lacey was two years old, the marriage was dissolved and Denise was granted custody of Lacey. Subsequently, Jeffrey, who was in the Navy, relocated to Alaska, California and Georgia.¹ Denise married Charles Leadingham when Lacey was about five years old and Denise took Leadingham as her surname. Jeffrey has also remarried.

According to Lacey, one day, prior to July 30, 1999, a teacher called her home and asked to speak with Mrs. Smith. This call prompted Lacey to begin thinking about the differences in her surname and her mother's. Lacey said that she was bothered by the fact that she and her mother no longer shared the same surname. Lacey spoke with her mother about the possibility of changing her surname after learning that it was possible to do that legally.

Lacey said that although she was a Smith, and wanted to retain her father's name, she also wanted her name to be associated with both her father's and her mother's surnames. Lacey also said that by using a hyphenated surname she would keep the identity of both parents.

Jeffrey was unconditionally opposed to the name change. He said that Lacey was born a Smith, was never a Leadingham and would never be a Leadingham.

The district court concluded that changing Lacey's surname from Smith to Smith-Leadingham would not result in the forfeiture of Jeffrey's right to have his daughter bear his name since the petition specifically requested that his surname remain a part of Lacey's name. The district court also concluded that not granting the request for a name change would violate the public policy favoring preservation of the family relationship because the family relationship between Lacey and Denise would suffer as a result of the difference in their surnames. The district court observed that Denise's remarriage had created a new family relationship within which Lacey has been raised. The district court said that Lacey's decision to use the surnames of both her parents was in accord with public policy in this day and age of divorced parents and preserved the family relationship with both her mother and father.

The circuit court reversed the district court's order, stating that the case of Likins v. Logsdon² is controlling. The court said that to defeat a divorced father's right and interest in having his children bear his name substantial reasons must exist to do so, and that mere inconvenience is insufficient as a matter of law. In sum, the circuit court determined that the reasons given for the proposed name change fell short of the "substantial reasons" standard.

This Court has been provided with no record of the proceedings conducted by the district court.³ Both parties attempt to supplement this missing record with statements of fact in their briefs. However, we must ignore all such references since this Court may not consider statements in the briefs that are not supported by the record.⁴ [I]n the absence of the evidence heard by the trial court, [this Court will assume] that the evidence which was heard was sufficient to sustain the findings of that court."⁵ However, even without the district court record we still must decide whether the circuit court's reversal was correct. In sum, "[t]here must be sufficient evidence to permit the [required, legal] conclusion."⁶

To the extent that this case involves a proposed surname change that combines a divorced father's surname and a step-father's surname, it is a case of first impression for this Court. Neither party directs our attention to a Kentucky case with similar facts, and we have been unable to find one. We have, however, found one case from another jurisdiction that presents similar facts. In Robinson v. Hansel,⁷ the proposed name change was from the divorced father's surname to a combination, but not by hyphenated form, of the divorced father's surname and the step-father's surname. Jeanine Hansel Robinson sought to change the surnames of her four minor children by adding to their surname the surname of her present husband, Bruce Robinson. Jeanine and Richard Hansel, the children's natural father, were divorced in 1969 and Jeanine had married Robinson in 1970.

The court below had granted the petition in favor of the mother, ordering that the children's surname be changed from "Hansel" to "Hansel Robinson." In reversing the lower court's order, the Supreme Court of Minnesota established as the standard of review: "I That judicial discretion in ordering a change of a minor's surname against the objection of one parent should be exercised with great caution and only where the evidence is clear and compelling that the substantial welfare of the child necessitates such change."⁸ The court found the evidence supporting the petition for change of name to be neither clear nor compelling.

A similar issue, under different facts, was addressed by the Supreme Court of Ohio.⁹ The name change sought was to have the mother's maiden name added to the daughter's last name in hyphenated form. The Supreme Court of Ohio held "that when deciding whether to permit a name change for a minor child ... the trial court must consider the best interest of the child in determining whether reasonable and proper cause has been established."¹⁰

"The term `surname' comes from the French word `surnom' — `sur' meaning above or beyond, `nom' from the Latin `nomen,' meaning name."<sup>11</sup> "The use of surnames is a relatively recent practice. `In the early life of all races surnames were unknown, while given names have been used from the most distant times to identify and distinguish a particular individual from his fellows.'"¹² "Surnames are said not to have been used in England until the Norman Conquest [in 1066] and have come into general use only toward the end of the 14th century, after Henry VIII established regulations governing the recording of births, marriages and deaths."¹³ As a convenience to the feudal system, to accommodate the feudal lord in identifying sons of the soldiers most loyal to him, the naming of' sons after their father was a custom the Normans brought with them to England.¹⁴

However, patronymics, a name derived from that of the father, was neither compelled or universal:

Inquiry into the naming practices of Western societies demonstrates that names ordinarily express kinship, but not necessarily paternity. Matronymics, names derived from the maternal line, have been employed in several Western cultures, including modern Spain and medieval England. In England, at least as late as the fourteenth century, both sons and daughters adopted their mothers' surnames, often upon succeeding to their mothers' estates or in hopes of doing so. Men also adopted their wives' surnames if' the couple inherited property from the woman's family. The children of such couples presumably also took their mothers' surnames. Even among the non-propertied classes, children sometimes used the maternal surnames. Historian and linguist C.M. Matthews explained the custom:

An illegitimate boy might be called by his mother's name, but it was equally natural and useful to refer to the son of a highly respected widow in the same way, or even, when the father was alive but away for years on some distant expedition or married to a dominant wife the lad might be spoken of ... as belonging to Moll or Alison or Margery.

The paternal surname, even if initially bestowed, did not necessarily survive the father's absence. Many of these English matronymics are still in use. As many as one-tenth of contemporary English surnames of relationship (as contrasted to those derived from names of places or occupations) were originally matronymics.¹⁵

The flexibility in naming practices, evident in the history and customs of Western society, goes a long way in explaining why

[t]his jurisdiction recognizes the common law right of any person to informally change their name by public declaration. [Kentucky Revised Statutes] Chapter 401 is not intended to abrogate the common law, but merely to insure that a permanent record is made of the name change. Therefore, even a child, on his own initiative, may exercise the common law right. However, he may not do so pursuant to statute because the statutory right is vested in the parent.¹⁶

However, the common law right is restricted by Kentucky Revised Statute (KRS) 401.020 which, in relevant part, provides that:

Both parents, provided both are living, or one (1) parent if one (1) is deceased, or if no parent is living, the guardian, may have the name of a child under the age of eighteen (18) changed by the District Court of the county in which the child resides. However, if one (1) parent refuses or is unavailable to execute the petition, proper notice of filing the petition shall be served in accordance with the Rules of Civil Procedure.

Because KRS 401.020 provides for mandatory notice and an implied right to be heard, the Supreme Court in construing its decision in Blasi v. Blasi¹⁷ said that a divorced father has an implied right to have his children continue to bear his name unless such right has been forfeited by his own misconduct or other extraordinary circumstances.¹⁸ "Clearly the father has a right and a protectable interest in having his...