Thomas v. Thomas

• Decision Date: 14 October 1981
• Docket Number: No. 80-1315,80-1315
• Citation: 56 Ill.Dec. 604,100 Ill.App.3d 1080,427 N.E.2d 1009
• Parties: , 56 Ill.Dec. 604 In re the Marriage of Geneva THOMAS, Petitioner-Appellant, v. Donald THOMAS, Respondent-Appellee.
• Court: United States Appellate Court of Illinois

Page 1009

427 N.E.2d 1009

100 Ill.App.3d 1080, 56 Ill.Dec. 604

In re the Marriage of Geneva THOMAS, Petitioner-Appellant, v. Donald THOMAS, Respondent-Appellee.

No. 80-1315.

Appellate Court of Illinois, First District, Third Division.

Oct. 14, 1981.

Helen R. Rogal, Chicago, for petitioner-appellant.

WHITE, Justice.

Petitioner, Geneva Thomas, was granted dissolution of her marriage and given custody of her 2 children, ages 4 and 10. The Judgment of Dissolution, however, denied her the use of her maiden name. From that portion of the judgment petitioner appeals.

At the hearing below, petitioner was asked by her counsel if she wished to resume her maiden name, she answered yes, and this colloquy followed:

"THE COURT: Mrs. Thomas, I always consider the best interest of the children, do you feel that by you assuming another name and the children having the name Thomas, that it won't confuse the children?

THE WITNESS: I don't know.

THE COURT: Well, if you don't know, I am not going to let you resume your former name.

MS. ROGAL: I believe she has a basic right to resume it just for asking for it.

THE COURT: Under the best interest if she is telling me she is doing it for professional use

MS. ROGAL: The Act says

THE COURT: It has never been tested. Take it up. Her petition is denied."

This was all of the evidence before the trial court on the issue of the restoration of petitioner's maiden name.

Petitioner contends that the trial court erred in denying her request asserting that the statutory language is mandatory and leaves the court no discretion as to whether to grant or deny a request for restoration of a maiden name. The Appellate Court, Fourth District, in a recent case has so construed the statute. Dorks v. Dorks (1981), 98 Ill.App.3d 1046, 54 Ill.Dec. 537, 425 N.E.2d 49. Section 413(c) of the Illinois Marriage and Dissolution of Marriage Act (Ill.Rev.Stat.1979, ch. 40, par. 413(c)) provides, "Upon request by a wife whose marriage is dissolved or declared invalid, the court shall order her maiden name or a former married name restored."

By the common law, every person is free not only to assume any surname he or she pleases, but also to change it at any time. In Reinken v. Reinken (1933), 351 Ill. 409, 413, 184 N.E. 639, our supreme court said:

"At common law, and in the absence of statutory restriction, an individual may lawfully change his name without resort to any legal proceedings, and for all purposes the name thus assumed will constitute his legal name just as much as if he had borne it from birth. (45 Corpus Juris, 381.) Our "act to revise the law in relation to names" (Citations) permits an individual to apply to the circuit court for the entry of an order changing his name. These statutory provisions are, however, not exclusive but are merely permissive, and they do not abrogate the common law right of the individual to change his name without application to the courts."

Petitioner also contends that the trial court misapplied the best interests of the child concept when presented with petitioner's request for restoration of her maiden name. We agree with her contention. We reach this conclusion whether or not we interpret the language of section 413, chapter 40, as mandatory although we recognize that "shall" is generally held to be mandatory particularly when addressed to a public official. The best interests of the child are to be considered by the trial court in selecting the custodial parent. The name which the parent uses has not been held to be one of the relevant factors. The welfare of the child becomes an important consideration where the custodial parent petitions to change the name of the minor child (Solomon v. Solomon (1...