T.D. v. C.F.

• Decision Date: 27 July 2022
• Docket Number: D079554
• Parties: T.D., Respondent, v. C.F., Appellant.
• Court: California Court of Appeals Court of Appeals

T.D., Respondent,
v.
C.F., Appellant.

D079554

California Court of Appeals, Fourth District, First Division

July 27, 2022

NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of San Diego County, Super. Ct. No. 18FL001514N, William Y. Wood, Judge.

A. Stephen Rocha for Appellant.

No appearance for Respondent.

IRION, Acting P. J.

C.F. (Father) appeals the order denying his second request to change the surname of his minor child (Minor) from that of Minor's mother, T.D. (Mother), to that of Father. The family court denied the second request on the ground the denial of the first one was res judicata. We reverse.

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BACKGROUND

Father and Mother were not married when Minor was born in November 2014 and given Mother's surname. Mother filed a proceeding under the Uniform Parentage Act (UPA; Fam. Code, § 7600 et seq.) to establish Father's paternity. A judgment was entered in November 2016 establishing paternity and granting custody to Mother and visitation to Father.

In March 2018, Father filed a request for an order modifying custody and visitation and changing Minor's surname to Father's. Father was then living in North Carolina and Mother in California. Father requested joint legal custody and more visitation, including overnight visits and visits outside California, so that Minor could spend more time with Father and his extended family. He requested the name change to strengthen his relationship with Minor. Mother opposed the requested modifications to custody and visitation and the requested name change. The family court (Hon. Kelly C. Mok) granted Father increased visitation, but denied his requests for joint legal custody and name change. As to the request to change Minor's surname, the court minutes state: "The Court denies the request for a name change at this time. This Court is looking for consistent contact and involvement with the child. [Father] may file a motion once he can show the Court that he is doing this."

In June 2019, Father filed a second request for an order modifying custody and visitation and changing Minor's surname to Father's. Father was still living in North Carolina but had begun working for a major airline and therefore could and did fly to California to visit Minor more frequently. He again requested joint legal custody, increased visitation, and the name change. Mother opposed any change in legal custody, agreed to increased

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visitation in California, but opposed the name change. After several review hearings and continuances, the matter was finally heard in May 2021. During the hearing, the family court (Hon. William Y. Wood) noted that Father had "very persistently" and "very appropriately" exercised his visitation rights "as he [was] able to do so" and that the visits were "going very well." The court stated its tentative decision on the name-change request was to change Minor's surname to a hyphenated form of Mother's and Father's surnames. In response, Mother's counsel advised the court that Judge Mok had previously denied Father's request to change Minor's surname. The court expressed its unawareness of that denial, took a brief recess, heard argument from Father's counsel, and then ruled that Judge Mok's denial was res judicata. In its findings and order after hearing, the family court granted Father's requests for joint legal custody and increased visitation, but denied his request to change the Minor's surname "based on res judicata."

DISCUSSION

Father complains the family court abused its discretion by denying his second request to change Minor's surname and asks us to reverse the denial order and to remand for further proceedings. He argues res judicata did not bar the second request, and circumstances had so changed since the denial of the first request that the name change was in Minor's best interest. We agree res judicata did not bar the...