Raubar v. Raubar

Decision Date01 May 1998
PartiesMary RAUBAR, Plaintiff, v. John W. RAUBAR, Defendant. Family Part, Cape May County
CourtNew Jersey Superior Court

Edward R. Doughty, Linwood, for plaintiff.

Brian J. Callaghan, Atlantic City, for defendant.


In this dissolution action, the court is asked to consider and decide the very issue earlier decided by another trial court in Holshue v. Holshue, 265 N.J.Super. 599, 628 A.2d 383 (Ch.Div.1993) and, contrary to that holding, allow plaintiff to assume, at final hearing and without prior notice given, a surname that is neither her birth name nor a prior legal name. Having reviewed the current texts and legislative histories of N.J.S.A. 2A:34-21 (Resumption of Name or Assumption of Any Surname ) and N.J.S.A. 2A:52-1 to -4 (Action for Change of Name; Complaint; Content; Service ), this court grants the application and allows plaintiff to assume a new surname, Bevan, her grandmother's maiden name, pursuant to the former and without prior compliance with the notice requirements of the latter or R. 4:72-3; Cimiluca v. Cimiluca, 245 N.J.Super. 149, 584 A.2d 823 (App.Div.1990). The Holshue rationale and its inherent logic no longer persuasively countermand (1) the clear and unambiguous language of these name change statutes; (2) the legislative histories of each (3) appropriate deference to the public policies unmistakably declared in recent amendments (indeed, the post-Holshue amendments to N.J.S.A. 2A:52-1 and R. 4:72-3); and (4) basic principles of statutory construction.

Plaintiff, Mary Raubar, and defendant, John W. Raubar, were divorced by way of Final Judgment of Divorce entered December 12, 1997 and filed December 30, 1997. Extensive pretrial motion practice notwithstanding, the parties resolved the cause of action and collateral issues at trial by way of agreement. At the conclusion of the hearing, plaintiff moved for leave to amend her complaint, nunc pro tunc, to include a request that she be permitted to assume a surname, Bevan, which is neither her birth name nor a surname previously used. 1 As explained by plaintiff, the surname, Bevan, was her grandmother's maiden name which she sought to assume for reasons sentimental. 2 The court reserved decision on this issue and afforded counsel the opportunity to submit briefs. Defendant consented to plaintiff's request.

Plaintiff argued, per letter brief, that: (1) the trial court decision in Holshue is not controlling; 3 (2) the Holshue court misconnstrued the plain meaning of the 1988 amendments to N.J.S.A. 2A:34-21 and, in so doing, substituted its judgment alternative to the clearly stated intention of the Legislature; and (3) the Holshue rationale, that assumption of a new surname "may affect" someone other than a party to the divorce action, fails to recognize--much less reconcile--the apparent reality that any name change, whether resumption of a former surname or assumption of a new and wholly different surname, "may affect someone else" in ways and to degrees too innumerable to contemplate. The potential for adverse effect upon third parties being not limited to new surname applications, the construction given N.J.S.A. 2A:34-21 by the Holshue court lacked empirical basis. As the application to assume a new surname under authority of N.J.S.A. 2A:34-21 should have been granted, so, too, should the instant application be granted without requiring prior compliance with N.J.S.A. 2A:52-1 and R. 4:72-1 to -4. For reasons which include yet also exceed arguments asserted by plaintiff, this court agrees and grants the name change application. Analysis starts, of course, with the statutes themselves, for "statutes are the law ..." 4 Chisom v. Roemer, 501 U.S. 380, 406, 111 S.Ct. 2354, 115 L.Ed.2d 348 (1991) (dissenting opinion by Justice Scalia).

Statutory construction, here, begins with two texts which our Legislature has adopted and our Governor has signed. The court must construe the words of these statutes as any ordinary member of the Legislature would have read them, Holmes, the Theory of Legal Interpretation, 12 Harvard Law Review, 417 (1899), and apply the meaning so determined. The court presumes that the Legislature is familiar with (1) existing judicial statutory interpretations, Chase Manhattan Bank v. Josephson, 135 N.J. 209, 638 A.2d 1301 (1994); (2) its own enactments, State v. Vonderfecht, 284 N.J.Super. 555, 665 A.2d 1145 (App.Div.1995); Monaghan v. Holy Trinity Church, 275 N.J.Super. 594, 646 A.2d 1130 (App.Div.1994); IFA Insurance Co. v. Waitt, 270 N.J.Super. 621, 637 A.2d 941 (App.Div.) certif. denied, 136 N.J. 295, 642 A.2d 1004 (1994); County of Essex v. Com'r, Dept. of Human Services 252 N.J.Super. 1, 599 A.2d 167 (App.Div.1991), certif. denied, 127 N.J. 553, 606 A.2d 366 (1991); Matter of Freshwater Wetlands Protection Act Rules, 238 N.J.Super. 516, 570 A.2d 435 (App.Div.1989); Guzman v. City of Perth Amboy, 214 N.J.Super. 167, 518 A.2d 758 (App.Div.1986); (3) our common law, Bert v. Director, Div. of Taxation, Dept. of the Treasurery, State of N.J., 11 N.J.Tax 29 (Tax 1990); and (4) rules of grammar, Croswell v. Shenouda, 275 N.J.Super. 614, 646 A.2d 1140 (Ch.Div.1994). The court must assume that the Legislature intended these statutes to have meaning that is neither superfluous nor irrelevant, Phillips v. Curiale, 128 N.J. 608, 608 A.2d 895 (1992), neither redundant nor meaningless. State v. White, 253 N.J.Super. 490, 602 A.2d 295 (Law Div.1991). The Legislature is presumed not to have included useless language in statutes. Alling Street Urban Renewal Co. v. City of Newark, 204 N.J.Super. 185, 497 A.2d 1287, (App.Div.1985), certif. denied, 103 N.J. 472, 511 A.2d 653 (1986).

The court's role, therefore, is to give effect to the Legislature's intent as reflected by the statutory language chosen, policy behind the statute, legislative history and concepts of reasonableness. State in Interest of J.L.A. 262 N.J.Super. 78, 619 A.2d 1321, rev'd. 136 N.J. 370, 643 A.2d 538 (1994). Legislative history of a statute and contemporaneous construction of other laws pertaining to similar subject matter may also reveal the purpose and plan of the Legislature. Pine Belt Chevrolet, Inc. v. Jersey Central Power & Light Co., 249 N.J.Super. 461, 592 A.2d 634 (App.Div.1991), rev'd. 132 N.J . 564, 626 A.2d 434 (1993). Yet, legislative history must be carefully and judiciously invoked in this interpretive process. In re Madia, 68 B.R. 11 (Bkrtcy.D.N.J.1986). Where the Legislature has expressed its intention in plain language and the legislative history does not demonstrate a contrary purpose, the court is bound to follow the statutory provision as written. Matter of Resyn Corp., 945 F.2d 1279 (3rd Cir., 1991). There is no reason to consider legislative history when the statute itself is clear. In re Yuhas, 186 B.R. 381 (Bkrtcy.D.N.J.1995). 5

A statute should not be interpreted to change a long-standing rule or principle embodied in a different statute unless the statute manifests a clear intent to do so. Deutch Shur, P.C v. Roth, 284 N.J.Super. 133, 663 A.2d 1373 (Law Div.1995). This court must therefore construe these statutes as separate enactments intended to be consistent with one another. Local 478 Trucking & Allied Industries Pension Fund v. Jayne, 778 F.Supp. 1289 (D.N.J.1991). When the purposes of two statutes appear to conflict with one another, the text of each fails to cross-reference the other, and legislative history is silent as to the possible conflict, the court generally assumes that the latter statute constitutes an amendment of the earlier statute, particularly when the latter specifically concerns a certain subject matter, whereas the previously enacted law pertains to the issue only in general terms. 6 American Telegraph & Telephone, Co. v. M./V. Cape Fear, 763F.Supp. 97, (D.N.J.1991) rev'd 967 F.2d 864 (3rd Cir., 1992)

The court should also consider the entire legislative scheme of which the statutes are a part. N.J. Transit Corp. v. Borough of Somerville, 139 N.J. 582, 661 A.2d 778 (1995). Statutes that share common purpose should be harmonized, not read in conflict. F. & W. Associates v. County of Somerset, 276 N.J.Super. 519, 648 A.2d 482 (App.Div.1994). The court cannot supply, however, every legislative omission or ignore statutory changes made deliberately by the Legislature. State v. Channel Home Centers, 199 N.J.Super. 483, 489 A.2d 1225 (App.Div.1985). Statutes in pari materia must all be viewed together in ascertaining legislative intent. State v. Wright, 107 N.J. 488, 527 A.2d 379 (1987); Kiss v. Jacob, 268 N.J.Super. 235, 633 A.2d 544 (App.Div.1993) rev'd. 138 N.J. 278, 650 A.2d 336 (1994). The rule of construction that statutes which deal with the same matter and seek to achieve the same overall legislative purpose should be read in pari materia, most obviously applies when statutes in question were enacted during the same session or went into effect at the same time, or when they make specific reference to one another. Sellitto v. Borough of Spring Lake Heights, 284 N.J.Super. 277, 664 A.2d 1284 (App.Div.1995). 7 Specific language contained in a statutory amendment to address concerns raised in prior judicial interpretations of the amended statute suggests that the Legislature considered those interpretations in drafting and enacting the amendment. 8 Chase Manhattan Bank v. Josephson, supra.

Application of these principles to the plain language of and legislative histories to the two statutes here involved yields the unavoidable conclusion that, in each instance, our Legislature has clearly written exactly what it intended the law to be.

Two statutes presently authorize a change of name. The first, N.J.S.A. 2A:52-1 (hereinafter name change statute), authorizes "any person" to "institute an action in Superior Court, for authority to assume another name ". [Emphasis added]. This language clearly...

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