Marriage of Schaefer, In re

• Decision Date: 28 September 1987
• Docket Number: No. 86-1098,86-1098
• Citation: Marriage of Schaefer, In re, 515 N.E.2d 710, 161 Ill.App.3d 841, 113 Ill.Dec. 725 (Ill. App. 1987)
• Parties: , 113 Ill.Dec. 725 In re MARRIAGE OF Lynn SCHAEFER n/k/a Lynn Buckley, Petitioner-Appellant, and Norman B. Schaefer, Respondent-Appellee.
• Court: Appellate Court of Illinois

Page 710

515 N.E.2d 710

161 Ill.App.3d 841, 113 Ill.Dec. 725

In re MARRIAGE OF Lynn SCHAEFER n/k/a Lynn Buckley Petitioner-Appellant and Norman B. Schaefer, Respondent-Appellee.

No. 86-1098.

Appellate Court of Illinois First District, First Division.

Sept. 28, 1987.

Phillip A. Battaglia, Hickory Hills, for petitioner-appellant.

Richard Gigante, Chicago (Paul R. Jenen, Wheeling, of counsel), for respondent-appellee.

Justice MANNING delivered the opinion of the court:

The petitioner, Lynn Schaefer n/k/a Lynn Buckley, appeals from an order entered by the trial court enjoining her from using the name Buckley as a surname for the two minor children of petitioner and respondent.

The petitioner, Lynn Schaefer n/k/a Lynn Buckley and the respondent Norman Schaefer, were married on December 27, 1969. Born of the marriage were Wren and Nicholas-John, 12 and 10 years-old respectively, at the time of the hearing on this petition for a restraining order. On March 22, 1978, a judgment of dissolution of marriage was granted. Custody of the two minor children was granted to Lynn Schaefer and reasonable visitation rights were conferred upon Norman Schaefer. Lynn Schaefer was remarried in May of 1980 to William Buckley.

On September 9, 1982, Norman Schaefer filed a Petition for Modification of Visitation Rights alleging that Lynn Buckley made it difficult for him to see the children. An order was entered on October 21, 1982, granting Norman Schaefer visitation rights on specific dates and times. A separate order was entered on that same date requiring Lynn Buckley to provide Norman Schaefer with the children's school records and to inform him of any psychological problems they may be having at school.

On June 18, 1984, Norman Schaefer filed a Petition for Rule to Show Cause and for Modification alleging that Lynn Buckley was not providing him with copies of his children's report cards in accordance with prior orders and that she was interfering with his visitation rights. On March 6, 1985, the court entered an order that the children were to hand deliver their report cards to Norman Schaefer upon receipt.

On March 12, 1986, Norman Schaefer filed a Petition for Restraining Order which prayed that Lynn Buckley be permanently enjoined and restrained from using the surname of "Buckley" on school records. Lynn Buckley filed a response to the petition admitting the use of the "Schaefer-Buckley" name by the children since March 1983. In her response she further asserted that Norman Schaefer was aware that the children were using the Schaefer-Buckley name since March 1983. Therefore, he should be estopped from seeking injunctive relief. Moreover, she filed a petition seeking a legal name change of the minor children to "Schaefer-Buckley." The trial court did not rule on the latter petition.

On March 26, 1986, a hearing was held on Norman Schaefer's Petition for Injunctive Relief. Immediately preceding that hearing, the petitioner's attorney moved to take a discovery deposition of Norman Schaefer. The motion was denied by the trial court. During the hearing, both parties testified. Additionally, the trial court conducted an in camera examination of the children.

Norman Schaefer testified that he was not aware that the children were using the "Schaefer-Buckley" name until March 1985, when he received a "lump of report cards" listing his children as "Schaefer-Buckley." Moreover, he noticed that the label on his son's asthma medication listed the son as Nicholas Buckley. His testimony does not reveal the date that he made this discovery.

Lynn Buckley testified that the two minor children began "exclusively and continuously" using the "Schaefer-Buckley" name in March or April of 1983. Furthermore, the "Schaefer-Buckley" name appeared on school records, medical records, library cards, bank accounts and in newspaper articles. She further testified that Norman Schaefer became aware of the use of the "Schaefer-Buckley" name as early as the summer of 1984 when he noticed the name Nicholas Buckley on his son's prescription bottle. Moreover, she contends that he did not object to the use of the Buckley name until December 31, 1985.

During the in camera interview with the minor children, neither of them objected to the use of the Schaefer name. Wren Schaefer testified that she wanted to use her father's name because she was proud of the Schaefer name and would not be embarrassed to use it. However, she further testified that she wanted to use the "Schaefer-Buckley" name because her little sister was named Buckley, her stepfather paid her tuition, and she is known by her friends as "Schaefer-Buckley." When asked by the court whether she would switch her name to Buckley-Schaefer, she responded that "anything is fine." She acknowledged that she did not believe that she would be loved any more or less by her parents if she used Schaefer as her last name.

Nicholas Schaefer testified that he liked the Buckley name because his sister Sara is named Buckley and his mother wanted him to use that name. He also testified that it would not embarrass him to use the Schaefer name nor would he lose any friends.

On March 26, 1986, at the conclusion of the hearing, the trial court entered an order permanently enjoining Lynn Buckley from using "the surname of Buckley for and on behalf of the children at school or any matters dealing with the daily life; to this end the name Buckley is to be deleted from the children's school records and all other documents, legal or otherwise ..." On April 23, 1986, Lynn Buckley filed this appeal from that order.

The standard of review in determining whether a minor child's surname should be changed is the best interest of the child. (In re Marriage of Presson (1984), 102 Ill.2d 303, 308, 80 Ill.Dec. 294, 465 N.E.2d 85; Cohee v. Cohee (1982), 210 Neb. 855, 860, 317 N.W.2d 381, 384.) The Illinois Supreme Court in Presson, set forth the following criteria to be considered in determining the best interest of the child:

"To determine the best interest of the child, the court should consider the expressed wishes of the child and of both parents, the stated reasons for the proposed change, the child's age and maturity, the nature of the family situation, the strength of the tie between the child and each parent, any misconduct toward or neglect by the parent opposing the change, and the name by which the child has customarily been called." 102 Ill.2d 303, 308, 80 Ill.Dec. 294, 465 N.E.2d 85.

In 1985, the Illinois legislature expanded the standard of review to "clear and convincing evidence that the change is necessary to serve the best interest of the child ... The relevant factors in determining the best interest of the child under this standard of review are: (1) the wishes of the parents ... (2) the wishes of the child and the reasons therefor ... (3) the interaction and interrelationship of the child with his or her parents ... (4) the child's adjustment to his or her home, school and communities ..." Ill.Rev.Stat.1985, ch. 96, par. 1.

The petitioner expressed her desire for the children to use the Schaefer-Buckley name while the respondent expressed his desire that the children use solely the Schaefer name. The children expressed a love for both parents and the testimony did not indicate that there would be an adverse affect on the children if they revert to using the Schaefer name.

The respondent asserts that even where a child expresses a desire for a name change, these desires may be disregarded if the court determines that the reasons are inappropriate. He supports this proposition with In re Marriage of Presson (1984), 102 Ill.2d 303, 310, 80 Ill.Dec. 294, 465 N.E.2d 85 and Lazow v. Lazow ((Fla.App.1962), 147 So.2d 12, 14.) In Presson, the court found that a seven year old child at that stage of development was not necessarily able to judge his best interest since neither his mental nor his emotional development was complete. (102 Ill.2d 303, 310, 80 Ill.Dec. 294, 297, 465 N.E.2d 85, 88.) Other reviewing courts have held that a 12 year old child is not capable of making an intelligent choice regarding his name. Lazow v. Lazow, (Fla.App.1962), 147 So.2d 12, 14, cited in In re Marriage of Omelson (1983), 112 Ill.App.3d 725, 733, 68 Ill.Dec. 307, 445 N.E.2d 951.

The petitioner maintains that the length of time the children have used "Schaefer-Buckley" whether nine months or three years has resulted in the name becoming completely integrated into the children's lives. The respondent maintains that whether the children used the "Schaefer-Buckley" name for nine months or three years, the Schaefer name was used for the majority of the children's lives.

Norman Schaefer as the noncustodial parent is at a disadvantage in maintaining a strong relationship with his children. Maintenance of the Schaefer name goes far toward demonstrating his continuing interest in and identity with the children. (In re Marriage of Presson (1984), 102 Ill.2d 303, 312, 80 Ill.Dec. 294, 465 N.E.2d 85; In re Application of Robinson (1974), 302 Minn. 34, 35-36, 223 N.W.2d 138, 140.) Similar to the facts in Presson, William Buckley has not adopted Wren and Nicholas and therefore, is under no legal obligation to support them. It is undisputed that Norman Schaefer is willingly meeting his financial obligations towards his children. The record does not reflect any misconduct or neglect of the children by Norman Schaefer. Moreover, the children express love for both of their natural parents.

The trial court heard testimony regarding the factors set forth under both Presson and the Change of Name statute. Consideration was given to the express wishes of the parents and the children. Moreover, consideration was given to the children's age, their relationship to each parent and the name the children were customarily called. The judgment of the trial court enjoining the change of the minor children's name will not be disturbed on...