Reben, In re

• Decision Date: 18 July 1975
• Citation: Reben, In re, 342 A.2d 688 (Me. 1975)
• Parties: In re Susan E. REBEN a/k/a Susan E. Hirsch.
• Court: Maine Supreme Court

Page 688

342 A.2d 688

In re Susan E. REBEN a/k/a Susan E. Hirsch.

Supreme Judicial Court of Maine.

July 18, 1975.

Howard T. Reben, Portland, for appellant.

Before DUFRESNE, C. J., and WEATHERBEE, POMEROY, ARCHIBALD, and DELAHANTY, JJ.

WEATHERBEE, Justice.

On July 19, 1973 the appellant, Susan E. Reben, filed a petition for change of name in the Probate Court of Cumberland County. A hearing was held on September 12, 1973 before the Judge of Probate. That Judge issued his decree on October 16, 1973 denying the relief sought in the petition.

The Petitioner appealed directly to this Court from the order. ¹ Pursuant to 4 M.R.S.A. § 401, the Judge of Probate has reported to us the facts involved in this appeal. The full boundaries of the question before the Court are presented by these reported facts:

The Petitioner was born under the name Susan E. Hirsch. Upon marrying Howard T. Reben, now her attorney in this controversy, the Petitioner took the name of Susan E. Reben. Approximately six months prior to the hearing in Probate Court and several months after her assumption of the surname Reben, the Petitioner decided that she wished to change her last name back to her birth name. The Petitioner believes that a married woman should not be compelled to assume her husband's surname. Consequently, the Petitioner now uses her birth name for all purposes, 'including', the Judge's report says, 'two bank accounts, numerous credit cards, school registration, driver's license, social security, auto registration, home mortgage and voter registration'. The Judge's reported factual statement concludes by noting that no fraudulent purpose was a factor in his denial of her request for a name change.

On appeal, the appellant first alleges that she has a right under the common law to choose any name she wishes, unless motivated by a fraudulent purpose, and that as the Judge of Probate found no fraudulent purpose, his denial of her petition was an abuse of discretion. Second, she asserts that the Judge's ruling denies her equal protection of the laws by unconstitutionally discriminating against her as a woman.

We sustain her appeal. In doing so, however, we find it unnecessary to reach the constitutional question. See, e. g., State v. Good, Me., 308 A.2d 576 (1973).

There is a remarkable sparsity here of both decisional and statute law concerning the status of a married woman's name. This opinion, also, will leave many questions unanswered, foremost, probably, the question whether a woman takes the surname of her husband at marriage by operation of law. Traditionally this has been the almost unanimous practice in this state, yet no statute has required it and no decision of this Court has ever affirmed it as being mandated by the common law. ²

We are satisfied as to the wisdom of the policy which dictates that we should, except in compelling situations, decide only issues which are necessary to the disposition of the case before us. We consider that it is particularly important that we exercise judicial restraint in an ex parte hearing such as this where we have had the benefit of only the Petitioner's arguments and where possible areas of wide personal and public concern are yet unexplored.

The ultimate question of whether the woman takes her husband's surname by operation of law is not necessary to this decision as this Petitioner agrees that she did take it (but as a result, she says, of her own choice to do so) and as her complaint is that the Judge declined to restore her maiden name judicially. It seems to us that that ultimate question is primarily one of governmental policy which can best be determined by legislative action. If it must be decided by the Court, the decision should come as the law of a case, not as mere dictum, and preferably in an adversary proceeding where we will have the benefit of argument on both sides of the controversy.

To resolve the abuse of discretion issue now before us, we must examine and interpret for the first time the language of the name change statute under which the appellant's petition was filed.

The Maine Legislature enacted our first statute authorizing a judicial change of name-the predecessor of our present statute-in 1873. The original statute, P.L.1873, ch. 97, read:

'Sect. 1. Whenever any person in this state desires to change his or her name, such person may petition therefor to the judge of probate of the county in which he or she resides; and such judge of probate is hereby authorized and empowered to change the name of such person, and shall make and preserve a record thereof.

Sect. 2. Whenever the judge of probate before granting any such petition, deems it expedient that notice thereof be given, such notice shall be given as the judge may order.

. . ..'

This language has since evolved to become 19 M.R.S.A. § 781, upon which the present petition is based.

'If a person desires to have his name changed, he may petition the judge of probate in the county where he resides; or, if he is a minor, his legal custodian may petition in his behalf, and the judge, after due notice, may change the name of such person and shall make and preserve a record thereof.' (Emphasis added.) ³

The development of the custom of identifying individuals by names no doubt begins before the time of recorded history, but the factors which engendered a need for a recognizable symbol of identification can easily be understood. With the appearance of village society in Europe and the development of the laws of inheritance, real estate title and contracts, and the use of promissory commercial paper, some degree of reliance upon the names of persons became indispensable.

The New York Court of Appeals examined the ancient history of the use of surnames and the common law of England, which had grown largely from the prevailing customs, in Smith v. United States Casualty Co., 197 N.Y. 420, 90 N.E. 947 (1910). The Smith Court concluded that at early common law a person could change his name nonjudicially, provided this was not done with fraudulent intent. Our own research has satisfied us that this was the state of the common law. E. g., Linton v. First National Bank, 10 F. 894 (W.D.Pa.1882); Mark v. Kahn, 333 Mass. 517, 131 N.E.2d 758 (1956); In re Ross, 8 Cal.2d 608, 67 P.2d 94 (1937).

It can easily be understood why the early, casual, common law practice of changing one's name at will would have resulted in confusion and uncertainty as our American society moved steadily toward complexity and urbanization. The necessity of being able to ascertain an individual's correct name and identity must inevitably have appeared in business, real estate transactions, litigation, political activity, and law enforcement. The confident statement of the English Chief Justice, Lord Abbott, in Luscombe v. Yates, 5 Barn. & Ald. 544, (1822) that

'(a) name assumed by the voluntary act of a young man at his outset into life, adopted by all who knew him and by which he is constantly called, becomes for all purposes that occur to my mind as much and effectually his name as if he had obtained an act of Parliament to confer it on him'

no longer provided a satisfactory answer to late 19th century North American society. The descendants of the young man of whom the late Chief Justice spoke could no longer be expected to live, buy and sell, litigate, beget, die and pass by inheritance in the community where they were born, where everyone knew them and called them by name.

We note that in the opinion from which we have quoted the English Chief Justice-as in many other opinions upholding the individual's right to use the name of his choice-the party had used and had been known exclusively by the adopted name for a period of many years. We find, in the older cases upholding the individual's common law right to change his name nonjudicially, such language as '. . . when his neighbors and the community have acquiesced and recognized him by his new designation, that becomes his name' ⁴ and '. . . for many years transacting his business and holding himself out to his friends and acquaintances thereunder with their acquiescence and recognition. . . .' ⁵ It must have occurred to the Maine Legislature to wonder-as it does to us-how long the individual, especially the new arrival in town, would be required to use the new name before he and people dealing with him could feel assured that it had replaced his old one, had not been motivated by fraud, and had become his legal name-and to question the acceptability of such uncertainty as our social structure became more urban and more transient. ⁶ We have no doubt that the 1873 statute was intended to put these uncertainties to rest.

The Legislature's use of the language 'his or her name' and 'in which he or she resides' leaves no doubt that it intended to make the statutory procedure available to women as well as men but its intention to extend the privilege to married women is less clear.

At common law a married woman had no separate identity before the law. In the eyes of the old common law, a husband and wife became one person upon marriage and that person was the husband. Mellott v. Sullivan Ford Sales, Me., 236 A.2d 68, 70 (1967). Although the common law decisions frequently spoke of a 'person's' right to change 'his' name, our research has revealed no case where the exercise of this right at common law by a married woman was either affirmed or disapproved- a situation which might, of course, be explained by the absence of occasion for 18th and 19th century married women to exercise the right. In other words, it is unclear whether American married women (and especially Maine married women) did or did not have the right to change their names at common law.

The old common law concept of a married woman's loss of identity was gradually eroded by positive legislation early in our statehood. P.L.1821, ch. 57, § 9, empowered courts to authorize an abandoned married woman to...