Montandon v. Montandon

• Decision Date: 20 June 1966
• Citation: 242 Cal.App.2d 886,52 Cal.Rptr. 43
• Court: California Court of Appeals Court of Appeals
• Parties: Lorraine V. MONTANDON, Plaintiff and Respondent, v. Jean M. MONTANDON, Defendant and Appellant. Civ. 7756.

Page 43

52 Cal.Rptr. 43

242 Cal.App.2d 886

Lorraine V. MONTANDON, Plaintiff and Respondent, v. Jean M. MONTANDON, Defendant and Appellant.

Civ. 7756.

District Court of Appeal, Fourth District Division 2, California.

June 20, 1966.

T. L. DeBord, F. A. Lopez, Jr., DeBord & Lopez, Barstow, for defendant and appellant.

Julius J. Novack, Novack & Novack, San Bernardino, for plaintiff and respondent.

OPINION

McCABE, Presiding Justice.

In 1963, the defendant petitioner filed an order to show cause to require respondent to have the minor children of their previously terminated marriage registered in school and known by their paternal surname and not the surname of the present alleged spouse of the respondent. After a hearing this relief was denied.

From the record, including an engrossed statement filed in lieu of a transcript, the following facts appear:

The Montandons were divorced in California by an interlocutory decree entered June 1, 1956. This decree granted Mrs. Montandon custody of the two minor male children with certain visitation rights to Mr. Montandon and ordered him to pay $50.00 per month for each child's support. Immediately after the interlocutory decree was entered, Mrs. Montandon went to Mexico, obtained a Mexican divorce and there married Robert Brannon. Admittedly, before respondent went to Mexico she was aware the California divorce was not final. Respondent and Mr. Brannon immediately returned to California. From that time to the date of the hearing on the order to show cause they lived together with the Montandon minors.

In August 1956, the petitioner and respondent entered into a formal written agreement whereby in consideration of petitioner relinquishing his right in and to specifically described joint tenancy real property (the family home) respondent waived any right to receive alimony or child support. In that agreement, signed by respondent, it was provided, in part, '* * * I agree to the stipulation that said two children will not be legally adopted by my present spouse or future spouses. * * *' The agreement further provided that it 'be made a matter of court records in the month of June 1957.' Upon application of the petitioner herein, the final decree of divorce was entered in June 1957.

In September 1956, the minor male children, then approximately six and three years of age, were enrolled in school under the surname of Brannon, and have continued to be so enrolled.

For several years and in reliance on the stipulation releasing respondent's alimony and support claims, petitioner made no child support payments. After consulting an attorney, and after the attorney advised him the children might be declared abandoned for his failure to support them petitioner made child support payments. From 1962 to the date of the hearing on the order to show cause, petitioner has made regular monthly payments for child support in the amounts set forth in the divorce decree. There is a conflict in the testimony as to whether petitioner knew his sons were using the name Brannon, but it is a reasonable inference to be drawn from the evidence that sometime between 1956 and 1962, he learned that fact and made no formal protest. For several years prior to 1963, petitioner had had his sons with him on some weekends and on his vacations and had attended ceremonies when an award was given to at least one of his children, given to the minor under the name Brannon.

Respondent testified she had an apprehension that if the children were not to use the name Brannon it would lead to embarrassment, confusion and detriment to the children. This testimony was an apprehensive conclusion for there is no testimony to support it.

Respondent and Mr. Brannon only have the marital status which may have been created by respondent's Mexican divorce and the Mexican marriage. Their marital status is not an issue on this appeal.

Petitioner argues to us that the rights of a father to have his natural children bear his surname is an inviolate right under the authority of In re Larson, 81 Cal.App.2d 258, 262, 183 P.2d 688; In re Malloy, 185 Cal.App.2d 135, 8 Cal.Rptr. 143. Further, even though the mother legally remarries she may not change the surname over the natural father's objection merely because of embarrassment and inconvenience. De Vorkin v. Foster, Sup., 66 N.Y.S.2d 54; In re Cohn, 181 Misc. 1021, 50 N.Y.S.2d 278; In re Ebenstein, Sup., 85 N.Y.S.2d 261 and 53 A.L.R.2d 915 are cited to us.

Respondent argues in several areas (1) emotional disturbance and embarrassment to the children; (2) since custody of the children was granted to her, she has certain rights regarding schools, religion and punishment, citing Boens v. Bennett, 20 Cal.App.2d 477, 67 P.2d 715; Hardwick v. Board of School Trustees, 54 Cal.App. 696, 205 P. 49; Hutchinson v. Hutchinson, 124 Cal. 677, 57 P. 674; and California Law, vol. 2, p. 1266; (3) there must be a change of circumstances to modify the custody order, Prouty v. Prouty, 16 Cal.2d 190, 105 P.2d 295; Crater v. Crater, 135 Cal. 633, 67 P. 1049; Foster v. Foster, 8 Cal.2d 719, 68 P.2d 719; Allen v. Allen, 156 Cal.App.2d 499, 319 P.2d 673; Bartold v. Bartold, 155 Cal.App.2d 251, 318 P.2d 69; Disney v. Disney, 121 Cal.App.2d 602, 263 P.2d 865; Sampsell v. Superior Court, 32 Cal.2d 763, 197 P.2d 739; (4) an individual who has no fraudulent purpose may change his name merely by adopting another and different name. (Emery v. Kipp, 154 Cal. 83, 97 P. 17, 19 L.R.A.,N.S., 983; Ray v. American Photo Player Co., 46 Cal.App. 311, 189 P. 130.)

While an individual's common law right to change his name has not been superceded by statutory provision, In re Weingand 231 Cal.App.2d 289, 41 Cal.Rptr. 778; In re Application of McGehee, 147 Cal.App.2d 25, 304 P.2d 167; Turesky v. Superior Court, 97 Cal.App.2d 838, 218 P.2d 784; In re Useldinger, 35 Cal.App.2d 723, 96 P.2d 958, the case before us is not one in which an individual of his own volition, voluntarily and without fraud, uses a different name. Here, the respondent, having the minor children in her custody, gave the new name to the minor children. They were not of an age when such a choice could be voluntarily made.

It seems fittingly fair to allow the one who has the custody under a legal order of court to select the religious, cultural, and educational forum and to allow the custodian to have the disciplinary procedures. All of these facets unite to reach a desired result without unnecessary traumatic experiences for the child. In a study of the cases cited to us to sustain the above facets, there is no indication that to procure the desired result or to avoid a traumatic experience to the child, it is necessary that his surname be at the sole choice and selection of the custodian. Under the postulation of respondent a custodian under legal order of court who is unrelated by blood or marriage to the child would have the right to change the surname at the whim of the custodian even though the custody order was temporary and at all times subject to change by court order if circumstances warrant. Thus, possibilities of traumatic experiences to ward so abhorred by respondent would be multiplied, not lessened.

Focusing our attention to the children, it is obvious that the children knew they had a natural father for they had been with him over the years and on frequent occasions. There is no testimony they believed he was any other person than their father. The only reasonable inference is the children knew Mr. Montandon was their father, their parents were divorced and they were living with their stepfather. There is no evidence that this caused the children, or either of them, confusion or embarrassment or emotional disturbance. The defendant-petitioner has manifested an abiding interest in maintaining his paternal relationship with his sons. At no time has be been declared in default of his obligation to make support payments in their behalf.

The precise point in issue has not been previously decided by an Appellate Court of this state. However, several cases have dealt...