Trower, Application of

• Decision Date: 14 March 1968
• Citation: Trower, Application of, 66 Cal.Rptr. 873, 260 Cal.App.2d 75 (Cal. App. 1968)
• Court: California Court of Appeals
• Parties: Application of Elizabeth Antoinette TROWER for Change of Name. Elizabeth Antoinette TROWER, a minor, Petitioner and Appellant, v. William P. TROWER, Objector and Respondent. Civ. 23498.

Page 873

66 Cal.Rptr. 873

260 Cal.App.2d 75

Application of Elizabeth Antoinette TROWER for Change of Name Elizabeth Antoinette TROWER, a minor, Petitioner and Appellant, v. William P. TROWER, Objector and Respondent.

Civ. 23498.

Court of Appeal, First District, Division 3, California.

March 14, 1968.

Hearing Denied May 9, 1968.

Frank S. McGorty, San Francisco, for petitioner-appellant.

John A. Pettis, Jr., Oakland, for objector and respondent.

DRAPER, Presiding Justice.

Once again, divorced parents resort to the courts to determine the surname of their child. The minor was born in 1960. Final divorce decree of the parents, entered in 1962, awarded custody to the mother. Each parent remarried, and each has a child by the later marriage. The surname of the mother's present husband is Dash. In 1965, Mrs. Dash, on behalf of her daughter, sought an order changing the child's name to Elizabeth Antoinette Trower Dash. The father, Mr. Trower, opposed the application. It was denied and the mother appeals. The trial court heard evidence, including testimony of both parents, but the proceedings were not reported.

The common law right of a competent adult to change his name has not been abrogated, and his application to make a judicial record of the change (Code Civ.Proc. §§ 1275--1279) will not be denied in the absence of substantial reason (In re Ross, 8 Cal.2d 608, 67 P.2d 94, 110 A.L.R. 217).

At common law, a minor did not have the right to change his name. Continued application of that rule is recognized by the statute (Code Civ.Proc. § 1276). Since fit parents are presumed to know and act in the best interests of their child (see concurring opinion of Traynor, J. in Guardianship of Smith, 42 Cal.2d 91, 94, 265 P.2d 888, 37 A.L.R.2d 867), they may apply in his behalf.

Problems arise, however, when the parents are divorced and disagree as to the change. Since the parent having custody has broad authority over the education, health, and religious training of the minor (Lerner v. Superior Court, 38 Cal.2d 676, 681, 242 P.2d 321), it could be argued that such parent should also have the primary right to choose the child's surname. When the father does not object, this right of the mother having custody seems impliedly acknowledged (In re McGehee, 147 Cal.App.2d 25, 304 P.2d 167).

But California decisions recognize that the father, even when custody is in the mother, has a protectible interest in having the child bear the paternal surname. This interest is first mintioned in a 1947 case referring to it as his 'primary right' (In re Larson, 81 Cal.App.2d 258, 262, 183 P.2d 688). His standing to assert this substantial right is squarely determined in a recent decision (In re Worms, 252 A.C.A. 136, 60 Cal.Rptr. 88; see also Montandon v. Montandon, 242 Cal.App.2d 886, 52 Cal.Rptr. 43). Worms (252 A.C.A. p. 141, 60 Cal.Rptr. p. 90) points to the general rule in other jurisdictions that 'a change of name will not be authorized against the father's objection, merely to save the mother and child minor inconvenience or embarrassment' (53 A.L.R.2d 914, 915).

The father's of course, is not absolute. The best interests of the child are paramount. Overruling of his objection may be warranted by such circumstances as misconduct justifying forfeiture of his rights, or a showing that his name will be positively deleterious to the child (Worms, at 141, 60 Cal.Rptr. 88). Obviously, some discretion is vested in the trial court in determining such issues.

The parties agree that the application is based upon such embarrassment and inconvenience as...