Marriage of Killman, Matter of

• Decision Date: 06 March 1998
• Docket Number: No. 75837,75837
• Citation: 955 P.2d 1228,264 Kan. 33
• Parties: In the Matter of the Marriage of Diana I. KILLMAN, a/k/a Diana I. Bock, Appellant, and Kurt Killman, Appellee.
• Court: Kansas Supreme Court

Page 1228

955 P.2d 1228

264 Kan. 33

In the Matter of the Marriage of Diana I. KILLMAN, a/k/a Diana I. Bock, Appellant and Kurt Killman, Appellee.

No. 75837.

Supreme Court of Kansas.

March 6, 1998.

Syllabus by the Court

1. A trial court's interpretation of a statute is a question of law, and this court's scope of review is unlimited.

2. The fundamental rule of statutory construction is that the intent of the legislature, where it can be ascertained, governs the construction of a statute. The legislature is presumed to have expressed its intent through the language of the statutory scheme it enacted.

3. When a statute is plain and unambiguous, the appellate courts will not speculate as to the legislative intent behind it and will not read such a statute so as to add something not readily found in the statute.

4. In a divorce action, the district court does not have jurisdiction or statutory authority to change the last name of the child of the marriage.

Molly M. Wood, of Legal Aid Society of Topeka, argued the cause, and Lowell C. Paul, of the same office, was with her on the briefs for appellant.

Doug Thompson, of Thompson Law Office, Abilene, argued the cause and was on the brief for appellee.

LOCKETT, Justice:

Wife appealed the district court order changing the name of the minor child of the marriage to husband's name in the decree of divorce. The Court of Appeals, in In re Marriage of Killman, 23 Kan.App.2d 975, 976, 939 P.2d 970 (1997), held that Kansas courts have implied authority to change a child's name in a divorce proceeding, but the district court abused its discretion in changing the name of the minor child because it failed to consider the interests of the child and mother. We granted the husband's petition for review.

Diana I. Bock, f/k/a Diana I. Killman, filed for divorce on April 11, 1995. The only child of the marriage, Brendan Ross Bock, was 8 months old. The husband, Kurt Killman, filed an answer admitting the child's name was Brendan Ross Bock. The only contested matter at the divorce hearing was the child's last name. The wife was not present at the hearing but was represented by counsel. The husband testified that although he signed the child's birth certificate stating the child's name was Brendan Ross Bock, he and his wife had disagreed over which last name to give the child. The wife wanted the child's last name to be Bock and he wanted the last name to be Killman. The wife won that disagreement.

The district court reasoned that because it had jurisdiction to determine custody of the child, it had statutory authority to determine the child's last name. In changing the last name, the district court concluded that "[c]onvention dictates the child should assume the name of the father and therefore this Court orders that the minor child's name be Brendan Ross Killman." The mother appealed, arguing that the district court lacked statutory authority to change the name of the child and lacked personal jurisdiction over the child, and that changing the name of the child was not an issue properly before the district court.

The Court of Appeals observed that whether the district court had jurisdiction of the child was a question of law and an appellate court is free to substitute its judgment on a question of law for that of the trial court. Killman, 23 Kan.App.2d at 976, 939 P.2d 970; see City of Chanute v. Polson, 17 Kan.App.2d 159, 160, 836 P.2d 6 (1992).

As to the mother's argument that there was no statutory authority for the district court to change the child's name, the Court of Appeals pointed out that K.S.A.1996 Supp. 60-1610 provides, in part: " 'A decree in an action under this article may include orders on the following matters....' Subsection (a), covering minor children, includes the support, education, custody, and residency." 23 Kan.App.2d at 976, 939 P.2d 970. It noted that the district court recognized K.S.A.1996 Supp. 60-1610 is silent as to the name of minor children. However, the statute required the district court to determine custody of the child and authorized the court The Court of Appeals observed that other jurisdictions are divided on this issue. 23 Kan.App.2d at 977, 939 P.2d 970. Jurisdictions which allow a change of name incident to divorce generally have statutory features distinguishing them from Kansas statutes. Illinois, for example, has ruled that a divorce court has subject matter jurisdiction over a child's name as a matter incident to custody of the child. In re Marriage of Presson, 102 Ill.2d 303, 306, 80 Ill.Dec. 294, 465 N.E.2d 85 (1984). The Presson court based its decision upon the Illinois change-of-name statute, which provided that a petitioner could include his or her minor child in a change-of-name petition if the change was in the child's best interests. That statute also required that the affidavit for a change of name of a minor, as well as the notice of name change, be signed by the parent or guardian having legal custody of the child. 102 Ill.2d at 307, 80 Ill.Dec. 294, 465 N.E.2d 85.

upon request, to order the restoration of either spouse's former name. [264 Kan. 35] Therefore, the trial court determined it had jurisdiction of the child and statutory authority to change the child's last name in a divorce proceeding.

The Court of Appeals noted that although the Kansas change-of-name statutes, K.S.A. 60-1401 et seq., did not specifically provide for changing the names of minors, a panel of the Court of Appeals had ruled that a change of a child's name is available if the action is brought by a next friend. In re Application to Change Name, 10 Kan.App.2d 625, Syl. p 1, 706 P.2d 480 (1985). It observed that this was distinguishable from the parent or guardian requirement of Illinois in that the change of a minor's name was not necessarily an incident of custody.

Nebraska has held that a divorce court has jurisdiction over a change of minor childrens' names. Cohee v. Cohee, 210 Neb. 855, 860, 317 N.W.2d 381 (1982). The Cohee court relied upon a Nebraska statute which gives the court authority to " 'include such orders in relation to any minor children and their maintenance as shall be justified' " as well as its equity jurisdiction in allowing the change of a child's surname in a dissolution action. 210 Neb. at 860, 317 N.W.2d 381 (quoting Neb.Rev.Stat. § 42-364 [1978] ).

Colorado has also ruled that a court handling the dissolution of a marriage has the power to order a change of the parties' minor child's name. In re Marriage of Nguyen, 684 P.2d 258 (Colo.App.1983), cert. denied 469 U.S. 1108, 105 S.Ct. 785, 83 L.Ed.2d 779 (1985). The Colorado Court of Appeals reasoned in Nguyen that Colorado's statutory name change provision did not eliminate the common-law method for change of name. The Nguyen court noted that Colorado courts routinely restore the wife's former name upon request at dissolution although this was not specifically provided for in its Dissolution of Marriage Act. (Kansas statutes authorize restoration of either spouse's former name.) The Colorado court had also noted that the great procedural safeguards attendant to a divorce and the breadth of the trial court's consideration of the family relationship supported the change of a minor's name in such a proceeding. 684 P.2d at 260.

The husband asserts that the issues pertaining to minor children in K.S.A.1996 Supp. 60-1610 are those which peculiarly belong to the two parties, i.e., the husband and wife. The Court of Appeals observed that in Kansas, generally, a husband and a wife are the only proper parties to a divorce action. Breidenthal v. Breidenthal, 182 Kan. 23, 28, 318 P.2d 981 (1957). Nevertheless, jurisdictions which have given the courts authority to change a minor child's name in a divorce action have determined that the court's power to do so is incidental to its jurisdiction of the child's custody. See, e.g., In re Marriage of Gulsvig, 498 N.W.2d 725, 728 (Iowa 1993); In re Marriage of Presson, 102 Ill.2d at 307, 80 Ill.Dec. 294, 465 N.E.2d 85.

The Court of Appeals observed that interpretation of a statute is a question of law over which it had an unlimited power of review, citing Foulk v. Colonial Terrace, 20 Kan.App.2d 277, Syl. p 1, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995). The Court of Appeals noted that Iowa statutes were similar to Kansas statutes in allowing a change of a minor's name incident to a divorce action. In spite of the fact that Iowa's dissolution statute did not specifically provide for change of a minor's name, the Iowa Supreme Court ruled that authority to change a " 'One of the more common rules of statutory interpretation is that expressed in the Latin maxim expressio unius est exclusio alterius, i.e., the mention or inclusion of one thing implies the exclusion of another. This rule may be applied to assist in determining actual legislative intent which is not otherwise manifest, although the maxim should not be employed to override or defeat a clearly contrary legislative intention. [Citations omitted.]' " State v. Luginbill, 223 Kan. 15, 20, 574 P.2d 140 (1977) (quoting In re Olander, 213 Kan. 282, 285, 515 P.2d 1211 [1973] ).

                child's name was inferred under the statute.  In re Marriage of Gulsvig, 498 N.W.2d at 728.   The Gulsvig court concluded the broad discretion given Iowa courts by statute to determine custody and physical care of the child authorized an infant child's name to be changed.  The Court of Appeals reasoned that the inclusion of a change of name provision for [264 Kan. 37] either party is evidence that the Kansas Legislature intended K.S.A.1996 Supp. 60-1610 to provide the district court with authority to change the parties' child's name.  It found the reasoning of the Iowa courts persuasive and adopted the Iowa rule that the court has the inferred authority to change a child's name in divorce proceedings.  The majority next turned to rules of statutory construction and said
                

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