Natale, Matter of

• Citation: 527 S.W.2d 402
• Decision Date: 29 July 1975
• Docket Number: No. 35880,35880
• Parties: In the Matter of Judith Eleanor NATALE, a/k/a Judith Natale Montage, Petitioner, Appellant. . Louis District, Division One
• Court: Court of Appeal of Missouri (US)

Page 402

527 S.W.2d 402

In the Matter of Judith Eleanor NATALE, a/k/a Judith Natale Montage, Petitioner, Appellant.

No. 35880.

Missouri Court of Appeals, St. Louis District, Division One.

July 29, 1975.

Judith Eleanor Natale a/k/a, Judith Natale Montage pro se.

Ellen Fulghum Watkins, Nat. Org. for Women, St. Louis Chapter, St. Louis, for appellant.

DOWD, Judge.

Petitioner appeals from the denial of her Petition for Change of Name requesting a court order changing her name from Judith Eleanor Natale, the name she had used following her marriage to Daniel Natale, to Judith Natale Montage. The petition alleged: that petitioner was twenty-nine years old and a resident of St. Louis County; that petitioner desired to change her name for purposes of professional and personal identity and convenience to her husband and herself in carrying out their professional careers; that petitioner had never been convicted of any felony, misdemeanor, or offense involving moral turpitude; and, that petitioner's requested name change would not defraud any of her creditors, was proper and not detrimental to the interests of any other person. An affidavit was filed with the petition in which petitioner's husband stated that he concurred with petitioner's request for a change of name.

The evidence at the hearing on the petition consisted solely of petitioner's testimony confirming the allegations of the petition. Petitioner's husband was an Administrator in the Parkway School District who did not list his home phone number in order to avoid calls from parents and children during his free time. Petitioner was a law student at St. Oouis University, expecting to graduate in May, 1974. ¹ She desired to list her home phone number as an attorney. Prior to her marriage, the Petitioner had not used the name Montage but had been known by three surnames due to her mother's remarriage and petitioner's adoption. While petitioner and her spouse had certain joint obligations such as charge accounts and leased their home and paid for utilities in the husband's name, no evidence was admitted which indicated that any of the couple's creditors would be defrauded by granting the name change petition.

On August 21, 1973, the court entered its order and judgment denying the Petition for Change of Name on the ground that 'Petitioner is lawfully married and resides with her legal spouse' and 'that under such circumstances the granting of said petition could be detrimental to others in the future.' The court's order did not specify who the 'others' were, but at the hearing, the court had commented, 'Where a married couple who do have and in the future are likely to have many obligations for which they are liable, I can see circumstances that would be detrimental . . .' It appears, therefore, that the trial court found that the fact of a woman's ongoing marriage is prima facie evidence of detriment to creditors sufficient to deny her petition for change of name.

The thrust of petitioner's first argument is that she has the right at common law to change her name, regardless of her marital status. Section 1.010 (RSMo 1969, V.A.M.S.) adopts, as the common law of Missouri, the laws of England in existence prior to the fourth year of the reign of James the First which are of a general nature and which have not been invalidated, expressly or impliedly, by the United States Constitution, Missouri Constitution or Missouri Statute. A survey of the common law of England is, therefore, useful.

Surnames arose as descriptive terms applied to individuals to differentiate between parties with the same baptismal name, eventually becoming a required part of a person's legal name. Even so, names could be adopted and abandoned at will, and all members of a family, including the husband and wife, were not necessarily known by the same surname. Gradually, the custom that all members of the family bear the same, fixed surname developed as surnames lost their character as descriptions of particular individuals. Since the husband and wife customarily adopted the name of the spouse with the most property and since men typically held more property than women, most women took the husband's name. However, the custom never became law. The English common law view was that a woman's surname was not bound to her marital status and arose only through her use of a name. ²

The law of England adopted by Section 1.010, supra, recognized the right to change name by the nonfraudulent use of another. The right was never limited to males; indeed, it was through this common law method that a woman changed her surname to that of her husband after marriage. Cowley v. Cowley, (1901) A.C. 450, 460; 19 Halsbury, Laws of England (3d ed.), p. 829; 32 Md.L.Rev. 409(1972); Lamber, A Married Woman's Surname: Is Custom Law?, 1973 Wash.U.L.Q. 779. As Section 1.010, supra, does not purport to prohibit married females from exercising their common law rights, married women in Missouri are free to adopt another name by the common law method if this right has not been invalidated by constitutional or statutory mandate.

This court is unaware of any constitutional or statutory provision which abrogates the English common law right to change names through usage, Section 417.200 (RSMo 1969, V.A.M.S.) notwithstanding. This statute provides that the transaction of business under a fictitious name not previously registered with the secretary of state is a misdemeanor. The construction given the statute comports with the common law right to change names. Contracts entered under a fictitious name are valid in themselves, but the act of contracting without registration constitutes a misdemeanor. State v. Euge, 400 S.W.2d 119 (Mo.1966). No holding in Missouri directly confirms the common law right to change names through usage, but the courts have indicated that a person's name is the designation given to the individual by himself or herself and others and that an individual may change his or her name. State ex rel. Kansas City Public Service Co. v. Cowan, 356 Mo. 674, 203 S.W.2d 407, 408 (Mo. banc 1947); State v. Deppe, 286 S.W.2d 776, 781 (Mo.1956); State ex rel. Rainey v. Crowe, 382 S.W.2d 38, 42 (Mo.App.1964).

Policy argues in favor of acknowledging that a woman may exercise the common law right to change names. The custom of restricting a married woman's right to use a surname other than her husband's is an outgrowth of societal compulsion and economic coercion ³ inconsistent with developments granting women equal legal rights. The concept that the husband and wife are one, ⁴ the 'one' being the husband, has been abandoned. Insistence that a married couple use one name, the husband's, is equally outmoded.

Petitioner chose to petition for a court ordered change of name under Section 527.270 (RSMo.1969, V.A.M.S.) rather than use the common law method to change her name. What has previously been said in reference to petitioner's common law right to change names, therefore, simply confirms petitioner's right to utilize the statutory procedure for changing names. Section 527.270, supra, and Rule 95.01, V.A.M.R. which is its counterpart do not abrogate and are merely supplemental to the common law method of name change. Under the common law, the change of name is accomplished by usage or habit, and under the statutory method, the change is accomplished by court order and public record. The primary difference between the two methods is, therefore, the speed and certainty of the change of name under the statutory procedure. 57 Am.Jur.2d, Name, § 11 (1971); 65 C.J.S. Names § 11(2) (1966). While no Missouri case has yet considered the relationship between the common law and statutory method of name change, the court's view that the common law and statutory methods of changing name coexist is consistent with the language of Section 1.010, supra, since Section 527.270 (RSMo 1969, V.A.M.S.) does not expressly abrogate the common law or invalidate the common law by inconsistency.

Petitioner's second argument urges that the trial court abused its discretion by denying the petition for change of name. The scope of discretion to deny a petition for change of name is narrow. Although no court in Missouri has previously considered the trial court's discretion to deny a name change petition, the advantages of the statutory procedure as against the common law method oblige this court to restrict the trial court's discretion. The statutory procedure accomplishes the change of name quickly and provides a means of notification to third parties under Rule 95.03 and Section 527.290 (RSMo 1969, V.A.M.S.). The petitioner also avoids any risk of prosecution for use of an unregistered, fictitious name under Section 417.200, supra, by using the statutory rather than common law method.

Our research had disclosed no appellate decision in any state which affirmed the trial court's denial of a married woman's name change petition on the ground of an ongoing marriage. Petition of Hauptly, 312 N.E.2d 857 (Ind.1974); Marshall v. State, 301 So.2d 477 (Fla.App.1974); Application of Halligan, 46 A.D.2d 170, 361 N.Y.S.2d 458 (1974); Application of Lawrence, 133 N.J.Super. 408, 337 A.2d 49 (Super.Ct.App.Div.1975). These cases hold that it is an abuse of discretion to deny a married woman her name change on grounds other than those specified in the statute or at common law or that it is an abuse of discretion of deny the petition on grounds which lack evidentiary support.

We are persuaded that the trial court abused its discretion in denying petitioner her requested name change. Both Rule 95.01, and Section 527.270 (RSMo 1969, V.A.M.S.) provide:

'Hereafter every person desiring to change his or her name may present a petition to that effect, verified by affidavit, to the circuit court in the county of the petitioner's residence, which petition shall set forth the petitioner's full name, the new name desired, and concise statement of the...