State ex rel. Connor v. Blake G.

• Decision Date: 10 October 2014
• Docket Number: S–13–1000,Nos. S–13–995,s. S–13–995
• Citation: 856 N.W.2d 295
• Parties: State of Nebraska on behalf of Connor H., a minor child, appellee, v. Blake G., defendant and third-party plaintiff, appellee, and Amanda H., now known as Amanda G., third-party defendant and appellant. In re Change of Name of Connor H., by and through his next friend, Amanda G. Amanda G., appellant, v. Blake G., appellee.
• Court: Nebraska Supreme Court

856 N.W.2d 295

State of Nebraska on behalf of Connor H., a minor child, appellee

v.Blake G., defendant and third-party plaintiff, appelleeandAmanda H., now known as Amanda G., third-party defendant and appellant.

In re Change of Name of Connor H., by and through his next friend, Amanda G.

Amanda G., appellant

v.Blake G., appellee.

Nos. S–13–995

S–13–1000

Supreme Court of Nebraska.

Filed October 10, 2014

Marc J. Odgaard, of Hanson, Hroch & Kuntz, for appellant.

Diane L. Merwin, of Fankhauser, Nelsen, Werts, Ziskey & Merwin, P.C., for appellee Blake G.

Heavican, C.J., Wright, Connolly, Stephan, McCormack, Miller–Lerman, and Cassel, JJ.

Syllabus by the Court

1.Minors: Names: Appeal and Error.An appellate court reviews a trial court's decision concerning a requested change in the surname of a minor de novo on the record and reaches a conclusion independent of the findings of the trial court.

2.Minors: Names.The question of whether the name of a minor child should be changed is determined by what is in the best interests of the child.

3.Minors: Names: Proof.The party seeking the change in surname has the burden of proving that the change in surname is in the child's best interests.

4.Minors: Names.Substantial welfare is related to best interests, because a change in surname is in a child's best interests only when the substantial welfare of the child requires the name to be changed.

5.Minors: Names.In Nebraska, there is no preference for a surname–paternal or maternal–in name change cases; rather, the child's best interests is the sole consideration.

6.Minors: Names.Nonexclusive factors to consider in determining whether a change of surname is in a child's best interests are (1) misconduct by one of the child's parents; (2) a parent's failure to support the child; (3) parental failure to maintain contact with the child; (4) the length of time that a surname has been used for or by the child; (5) whether the child's surname is different from the surname of the child's custodial parent; (6) a child's reasonable preference for one of the surnames; (7) the effect of the change of the child's surname on the preservation and development of the child's relationship with each parent; (8) the degree of community respect associated with the child's present surname and the proposed surname; (9) the difficulties, harassment, or embarrassment that the child may experience from bearing the present or proposed surname; and (10) the identification of the child as a part of a family unit.

7.Names: Child Custody: Presumptions.No presumption exists in favor of the surname desired by a custodial parent, even if the parent has sole legal and physical custody of the child.

8. Names.Name-change decisions are to be made on a case-by-case basis.

Cassel, J.

INTRODUCTION

This appeal addresses the surname of a child born out of wedlock and given his mother's maiden surname.After the mother married and began using her husband's surname, both parents sought to change the child's surname—the father proposing his surname and the mother requesting her married surname.The district court granted the father's request, giving preference to the paternal surname and using a “substantial evidence” standard.But the child's best interests, without any presumption favoring either parent's surname, is the controlling standard.Upon our de novo review, we conclude that the evidence was insufficient to show that a change in the child's surname was in his best interests.

BACKGROUND

Connor H. was born out of wedlock to Blake G. and Amanda H., now known as Amanda G., in October 2008.Blake signed the birth certificate, which listed Amanda's maiden surname as Connor's surname.Amanda made the decision to use her maiden surname as Connor's surname, and Blake testified that he was “[n]ot really” allowed any input in that decision.Blake and Amanda ceased living together prior to Connor's

birth, and Amanda has been Connor's custodial parent since his birth.

Blake and Amanda entered into a stipulation regarding paternity, child support, and other matters.On December 1, 2009, the district court entered a judgment, styled as an order, granting Amanda sole legal and physical custody of Connor, granting Blake reasonable rights of visitation, and ordering Blake to pay child support.

In December 2011, Amanda married.She then changed her surname to that of her husband.

On January 28, 2013, Blake filed a complaint to modify the December 2009 judgment.He alleged that a material change in circumstances had occurred and requested, among other things, that Connor's surname be changed to Blake's surname.

On August 12, 2013, Amanda initiated a separate case by filing a petition for name change.She alleged that it was in Connor's best interests to change his surname from Amanda's maiden surname to her married surname.

The district court heard both matters in October 2013.At that time, Connor was 4 years old and enrolled in preschool.Evidence established that Connor had leukemia and that he was covered under Amanda's insurance.Both parents were involved in his medical care.

Blake was able to build a strong relationship with Connor despite their different surnames.Connor referred to Blake as “ ‘Dad.’ ”Amanda was supportive of Blake's relationship with Connor and allowed Blake additional visitation at times.Blake testified that he exercised his visitation rights and paid child support.At the time of trial, he was current on child support, but he had been in arrears until approximately May 2011.Blake attended Connor's T-ball games and school activities.Blake also took Connor hunting and fishing and to watch football games.Connor knew his paternal grandparents and was involved with both of Blake's brothers.

Amanda wished to change Connor's surname to match her married surname.Because Amanda, Connor's stepfather, and Connor's half sister have the same surname, Amanda thought that Connor “would feel more part of the family and feel like he belongs if he could have the same last name as everybody

that he lives with.”Amanda testified that Connor asked about her last name and that of his half sister and that he knew he had a different last name.As it pertained to Amanda's state of mind and not for the truth of the matter, the court allowed Amanda to testify that Connor had told her that he would like his last name to be Amanda's married surname.Amanda testified that Connor loves his stepfather and that Connor has a great relationship with his stepgrandparents, who live in the same town.

Following the presentation of evidence, the district court stated:

Well, the Court doesn't find that there's evidence to change [Connor's surname] to [Amanda's married surname].I think that's like a de facto adoption.I'm not going to do that; that would just simply be wrong.

Now, the evidence here is that the dad has had a good contact with the child, the natural father, and he's kept contact with the child.There's no reason to be changing the name to a stepfather's name.

The question really comes down to whether or not there's evidence supplied that it would be in the best interest of the child to change the name at all.

Now, mom says there is because she has changed her name now from [her maiden surname to her married surname].And, of course, in the case of [Amanda's] name change request, I'm not going to find it's in the best interest to change it to [Amanda's married surname], so I'm going to deny [Amanda's] application in that regard.

The father—the natural father's allegation under the paternity law to change the name to the—to his name I'm going to find is probably in the best interest of the minor child.Now, that may be considered an old-fashioned statement, but, on the other hand, I think there's substantial evidence here in this sense.Now, substantial evidence defined in Nebraska's law is—actually, it comes down to being more than a scintilla and less than a preponderance, which is interesting because the name “substantial” means that it would be substantial but, yet, that's the definition.I deal with that definition every day and in dealing with appeals and so forth.

But the Court is going to find that there's been primary contact; the contact with the natural father has been good with the minor child.And since mom's name has already been changed, [her maiden surname] no longer is really relevant to this young man, and so if he was going to take a name, it would seem to me it would be in the best interest to take the natural father's name instead of taking what would be—in the Court's thinking would be a stepfather's name.

On October 15, 2013, the district court entered an order in the paternity case changing Connor's surname to Blake's surname.On October 28, the district court entered a judgment denying Amanda's separate petition for change of name.The court found that changing Connor's surname to Amanda's married surname “would amount to a de facto adoption” and that granting the petition would not be in the child's best interests.

Amanda filed a timely appeal in each case.The parties agreed to consolidate the appeals for briefing, argument, and disposition.We moved the cases to our docket under our statutory authority to regulate the caseloads of the appellate courts of this state.¹

ASSIGNMENTS OF ERROR

Amanda assigns, reordered, that the district court erred in denying her petition for name change and in granting Blake's complaint to modify the decree, because the court(1) applied an incorrect burden of proof, (2) wrongfully gave preference to Blake's surname, and (3) ignored evidence which supported the name change to Amanda's married surname.

STANDARD OF REVIEW

An appellate court reviews a trial court's decision concerning a requested change in the surname of a minor de novo

on the record and reaches a conclusion independent of the findings of the trial court.²

ANALYSIS

Burden of Proof

The question of whether the name of a minor child should be changed is determined by what is in the best...