Pizziconi v. Yarbrough

• Court: Arizona Court of Appeals
• Writing for the Court: KLEINSCHMIDT
• Citation: Pizziconi v. Yarbrough, 868 P.2d 1005, 177 Ariz. 422 (Ariz. App. 1993)
• Decision Date: 23 September 1993
• Docket Number: CA-CV,No. 1,1
• Parties: In re the Matter of Vincent B. PIZZICONI, Petitioner-Appellant, v. Bonnie C. YARBROUGH, Respondent-Appellee. 91-0249.

Page 1005

868 P.2d 1005

177 Ariz. 422

In re the Matter of Vincent B. PIZZICONI, Petitioner-Appellant, v. Bonnie C. YARBROUGH, Respondent-Appellee.

No. 1 CA-CV 91-0249.

Court of Appeals of Arizona Division 1, Department A.

Sept. 23, 1993.

Review Denied March 15, 1994.

[177 Ariz. 424] Fox & Fox, P.C. by John R. Fox, Phoenix, for petitioner-appellant.

Helm & Kyle, Ltd. by Margaret R. Tinsley, Tempe, for respondent-appellee.

OPINION

KLEINSCHMIDT, Judge.

This appeal from rulings in a paternity case raises an issue concerning a child's surname as well as other questions relating to support for the child and the admissibility of evidence. The case arose as follows.

Vincent Pizziconi and Bonnie Yarbrough, to whom we will frequently refer to hereafter as the "Father" and the "Mother," respectively, are the natural parents of a child who was born in 1986. They have never married. The Father initially filed a paternity action when he learned that the Mother's current husband was interested in adopting the Child. This was consolidated with a paternity suit, which the Mother filed requesting that Pizziconi be declared the father of the Child and that he pay for the expenses associated with the birth of the Child and pay back child support.

Following a trial, the judge denied the Father's request that the Child bear his surname and ruled that the Child's surname should be "Yarbrough," which was the name of the Mother's former husband and the name used by the Mother and the Child's half brother. The judge also ordered the Father to pay back child support in the amount of $6,959.00, monthly child support of $307.00, and the Mother's attorney's fees.

THE CHILD'S SURNAME

The Father argues that he and the Child have a protectable interest in having the Child bear the paternal surname and that the Child should use that name unless the Mother can prove that it would be harmful to the Child to do so. He relies primarily on the case of Laks v. Laks, 25 Ariz.App. 58, 540 P.2d 1277 (1975), in which a mother, following her divorce, changed the surnames of her three children to a hyphenated version of the father's name and her own surname which she had used from birth. The mother argued that under the Equal Protection Clause of the Fourteenth Amendment she had a right equal with the father's to give her children her own name unless the father could show that such change was not in the best interests of the children. Division Two of this court affirmed an order reinstating the paternal surname, noting that although a father does not have a legal right to have his child bear his surname, the "usual custom" gives him a protectable interest in such. The court observed that the bond between a child and its noncustodial father could be weakened or destroyed if the child's name were changed.

Although the court in Laks acknowledged the mother's argument that the father's position was based upon a premise that the sexes are not equal, it said that where the issue was a name change, and not what the children were originally named, the best interests of the children were controlling. Since the mother had not filed a transcript of the hearing, the court presumed the record sustained the judgment with respect to the children's best interests.

In this case, unlike in Laks, the Child has never borne her Father's name. According to the Mother's undisputed testimony, when she told the Father of the Child's birth, he initially said that he did not want to be involved. Accordingly, the Mother could not have given the Child the Father's name because under Ariz.Rev.Stat.Ann. ("A.R.S.") section 36-322(F), an unmarried women who gives birth to a child may not use the putative father's name on the birth certificate without his consent. See also A.R.S. § 36-338(D) (name on birth certificate may be changed to father's surname if both parents acknowledge father's paternity and request substitution of his name).

The court in Laks held that the father's protectable interest was based on the custom of giving legitimate children their father's surname. With respect to children born out of wedlock, however, the custom has been for the child to assume the mother's surname. See Richard H. Thornton, Note, The Controversy over Children's Surnames: Familial Autonomy, Equal Protection and the Child's Best Interests, 1979 No. 2 Utah L.Rev. 303, 312. This custom undercuts the Father's position. So too, the concern Laks expressed about weakening the link between a father and child by discontinuing the use of the father's name has little weight in this case because the evidence shows that the Father and Child have bonded.

Finally, although the court in Laks recognized the father's interest in having his children bear his name, it held that the best interests of the children was controlling. See Note, Whose Interest is Controlling in the Name Change of Minors--the Father's, the Mother's or the Child's?, 18 Ariz.L.Rev. 725, 730-31 (1976). This rule, that the child's best interests control, is consistent with the law in a number of jurisdictions. See Hamby v. Jacobson, 769 P.2d 273, 277 (Utah Ct.App.1989) (citing Laks as among the decisions that follow the rule that a name change should be granted only if the court finds the change is in the best interests of the child); Hamman v. County Court in and for Jefferson County, 753 P.2d 743, 749 (Colo.1988); Ribeiro v. Monahan, 524 A.2d 586, 587 (R.I.1987); Daves v. Nastos, 105 Wash.2d 24, 711 P.2d 314, 318 (1985); In re Schiffman, 28 Cal.3d 640, 169 Cal.Rptr. 918, 922, 620 P.2d 579, 583 (1980).

The Laks court did not set forth any guidelines for deciding when a change of name will be in a child's best interests, but other courts have considered such factors as: the child's preference; the effect of the change on the preservation and development of the child's relationship with each parent; the length of time the child has borne a given name; the difficulties, harassment, or embarrassment that the child may experience from bearing the present or proposed name; the motive of the parents and the possibility that the use of a different name will cause insecurity or a lack of identity. See Hamby, 769 P.2d at 277; In re Schiffman, 169 Cal.Rptr. at 922, 620 P.2d at 583.

We agree that all these factors may be relevant. Furthermore, courts should not give greater weight to the father's interest in having the child bear the paternal surname because, as the Supreme Court of Utah recognized in Hamby, "our society no longer adheres to the notion that the husband is the sole legal representative of the family, and its property and children, and therefore able to unilaterally determine the surname of the couple's children." 769 P.2d at 276 (citation omitted). It went on to say: "In these times of parental equality, arguing that the child of unmarried parents should bear the paternal surname based on custom is another way of arguing that it is permissible to discriminate because the discrimination has endured for many years." 769 P.2d at 278 (citation and footnote omitted).

A standard which gives greater weight to the paternal surname could implicate equal protection concerns. See Note, Whose Interest is Controlling in the Name Change of Minors--the Father's, the Mother's or the Child's?, 18 Ariz.L.Rev. at 731-36; see also Roe v. Conn, 417 F.Supp. 769, 782-83 (M.D.Ala.1976) (statute giving father the right to determine surname of child following legitimation without due regard to mother's desire or child's individual interest violates equal protection guarantees). Such a standard is also inappropriate since the tradition of children bearing the father's name has eroded as women have, with increasing frequency, opted to retain their birth names after marriage or to select a surname other than their husband's. Hamby, 769 P.2d at 276.

Notwithstanding that the parties originally left this matter to the discretion of the trial judge, informed by the law which they argued, the Father now urges that we should remand this issue to the trial court to consider specific factors bearing on whether the Child's name should be changed. Some courts have required an express finding as to whether the best interests of the child require the grant or denial of a request for a change of name. See Daves, 711 P.2d at 318; Hamby, 769 P.2d at 278. There is, however, no Arizona statute or case that requires such an express finding on this issue, and the Father did not request findings of fact pursuant to Rule 52(a), Arizona Rules of Civil Procedure. We therefore assume that the trial court found every controverted issue of fact necessary to sustain its decision and the judgment will be upheld if there is reasonable evidence to support it. Fleming v. Becker, 14 Ariz.App. 347, 350, 483 P.2d 579, 582 (1971).

There is sufficient evidence to support the inferential finding that a change of name was not in the Child's best interest. The Child had used the name "Yarbrough" for four years, her half-brother uses that name, and the Mother avowed that she would not seek to change the name in the future. See Ribeiro, 524 A.2d at 587 (best interest of illegitimate three-year-old child to retain mother's surname when that name was on birth certificate, child had grown up with the name, and siblings used that name).

THE AWARD OF PAST CHILD SUPPORT

The Father argues that there was insufficient evidence to support the award of past child support. He asserts that the trial judge improperly used the Arizona Child Support Guidelines adopted by the Arizona Supreme Court in computing the amount due. He argues that the award should be reversed or, in the alternative, that the case should be remanded for a determination of the amount the Mother actually spent on behalf of the Child from birth until the entry of the pendente lite support order which the court entered after the paternity actions were filed.

Except for evidence of amounts spent for the expenses of birth,...