Rice v. Merkich, 2009-CA-00318-SCT.
| Decision Date | 06 May 2010 |
| Docket Number | No. 2009-CA-00318-SCT.,2009-CA-00318-SCT. |
| Citation | 34 So.3d 555 |
| Parties | Jessica Nicole RICEv.Scott Thomas MERKICH. |
| Court | Mississippi Supreme Court |
[34 So.3d 555 555]
Jeffrey P. Hubbard, Jackson, Stacey L. Strain, attorneys for appellant.
T. Jackson Lyons, Jackson, David Edwin James, attorneys for appellee.
EN BANC.
[34 So.3d 555 556]
¶ 1. Jessica Rice appeals the judgment of the Madison County Chancery Court changing the surname of her minor child to that of the father pursuant to a paternity action. As this is a case of first impression, this Court must interpret Mississippi Code Section 93-9-9(1) of the Mississippi Uniform Law on Paternity. For the reasons stated herein, we affirm the judgment of the chancellor.
¶ 2. Jessica Rice and Scott Merkich had been dating on and off for about two years when they discovered that Rice was approximately eight weeks pregnant in June 2007. Rice and Merkich were living together at the time of the pregnancy. Rice and Merkich had planned to get married, but they ultimately ended the relationship on August 25, 2007, and Rice moved in with her parents. Rice admitted that she had dated other men while she and Merkich were broken up, and Merkich questioned the child's paternity. However, the parties remained in contact after the break-up. Prior to ending the relationship, Merkich accompanied Rice on two doctor's visits. After the break-up, Merkich planned to accompany Rice to at least one other doctor's visit, but Rice changed the date of the appointment without informing him of the new time. Merkich also contributed to the payment of two medical bills related to the pregnancy.
¶ 3. The baby was due January 22, 2008, but was born on January 3, 2008. Rice did not contact Merkich when she went into labor and, thus, he was not present when she gave birth to the baby girl, which Rice named Presley Annsleigh Rice. Rice did not inform Merkich of Presley's birth until January 6, 2008, the day after she was discharged from the hospital.
¶ 4. On January 16, 2008, Merkich filed a Petition for Determination of Paternity, seeking paternity testing. The parties agreed to DNA testing, and the results established a 99.98 percent probability that Merkich is Presley's father. Thereafter, Merkich filed in that same action on March 7, 2008, a Complaint for Determination of Child Custody and Visitation. Merkich asked for joint legal and physical custody of Presley, asked that her surname be changed to Merkich, and stated that he was willing to pay his statutorily-required child-support obligation. Rice filed a Response to Complaint for Determination of Child Custody and Visitation and Respondent's Counterclaim for Back Child Support and Other Relief on April 1, 2008. Rice denied that Merkich should be awarded joint care, custody and control of the minor child. Rice also denied that Presley's surname should be changed to Merkich. Rice admitted that Merkich should pay child support and counterclaimed for back child support. Merkich filed an answer on April 2, 2008.
¶ 5. After a hearing for temporary relief, the chancellor entered a Temporary Order on July 10, 2008, finding that Rice and Merkich would share joint legal custody of Presley and that Rice would maintain primary physical custody subject to Merkich's reasonable visitation rights. The chancellor also ordered temporary child support and set the matter for trial on January 13, 2009. On the date of trial, Rice and Merkich filed a joint stipulation that they agreed on all issues except those identified, which included Presley's surname. The trial proceeded on those issues, including Presley's surname. After hearing evidence and testimony, the chancellor found that Presley's surname should be Merkich. Subsequently, Rice filed this appeal.
[34 So.3d 555 557]
¶ 6. Rice raises the following issues:
¶ 7. This Court “will not disturb the factual findings of a chancellor when supported by substantial evidence unless the Court can say with reasonable certainty that the chancellor abused his discretion, was manifestly wrong, clearly erroneous or applied an erroneous legal standard.” Powers v. Tiebauer, 939 So.2d 749, 752 (Miss.2005). “When reviewing questions of law, this Court employs a de novo standard of review and will only reverse for an erroneous interpretation or application of law.” Id.
¶ 8. Mississippi Code Section 93-9-9 of the Mississippi Uniform Law on Paternity states, in relevant part: “In the event of court-determined paternity, the surname of the child shall be that of the father unless the judgment specifies otherwise.” Miss.Code Ann. § 93-9-9(1) (Rev. 2004) (emphasis added). Although the statute does not delineate those circumstances where the “judgment specifies otherwise,” it is reasonable to conclude that those circumstances should be examined in light of the best interest of the child, if, and only if, this is a contested issue. In other words, “in the event of court-determined paternity,” where a party to the action contends that the surname should not be “that of the father,” then, and in that event, that party must prove by a preponderance of the evidence that it is in the child's best interest that the surname not be “that of the father.” We note that the parties assert a clear and convincing evidence burden of proof and that in Pendleton v. Leverock, 23 So.3d 424, 431 (Miss.2009), this Court referenced a clear and convincing standard with regard to a custody case involving a natural parent and a third party. However, we find that a preponderance of the evidence is the appropriate burden of proof in the instant case. Moreover, child-custody and adoption cases are categorically different from cases involving changing the surname of a child to the surname of the natural father pursuant to statute.
¶ 9. In the instant case, the statute's plain language clearly indicates that Presley's surname shall be Merkich unless Rice proves by a preponderance of the evidence that it is in the child's best interest that her surname not be Merkich. Such an interpretation is consistent with and supported by other relevant statutory provisions and Department of Health rules. For example, Mississippi Code Section 93-9-9(3) states:
Miss.Code Ann. § 93-9-9(3) (Rev. 2004) (emphasis added).
¶ 10. Mississippi Code Section 41-57-23(2) of the Vital Statistics Chapter provides that:
If a child is born to a mother who was not married at the time of conception or birth, or at any time between conception and birth, and the natural father acknowledges paternity, the name of the father shall be added to the birth certificate if a notarized affidavit by both parents acknowledging paternity is received on the form prescribed or as provided in Section 93-9-9. The surname of the child shall be that of the father except that an affidavit filed at birth by both listed mother and father may alter this rule. In the event the mother was married at the time of conception or birth, or at any time between conception and birth, or if a father is already listed on the birth certificate, action must be taken under Section 41-57-23(1) to add or change the name of the father.
Miss.Code Ann. § 41-57-23(2) (Rev. 2009) (emphasis added). Rice testified that she had failed to disclose to Merkich that Presley had been born until after she had been released from the hospital. If Rice had informed Merkich earlier, and he had acknowledged paternity by completing the proper forms at the hospital, then, pursuant to this section, Presley's surname would have been Merkich unless both Rice and Merkich had signed an affidavit stating otherwise.
¶ 11. Such a finding is also consistent with the Rules Governing the Registration and Certification of Vital Events by the Mississippi State Department of Health. Rule 103.04 states:
This section details the conditions under which the father's name may be entered on the certificate, the specification of the child's name under each condition, and conditions under which the surname of the child may be different from either the father's surname or mother's surname if no father is listed. Traditionally, a child assumes the legal surname of his or her father as listed on the birth certificate, or of the mother if no father is listed. When the surname given a child is not traditional, a signed statement, witnessed by a hospital representative, signed by both parents or the mother if no father is listed, and filed with the birth certificate shall be required, but the certificate shall not be considered nor marked as having been amended.
Miss. Dep't of Health R. 103.04 available at Miss. State Dep't of Health Website http:// www. msdh. state. ms. us/ (last accessed May 3, 2010).
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