West v. Wright

• Decision Date: 09 November 1971
• Docket Number: No. 51,51
• Citation: 283 A.2d 401,263 Md. 297
• Parties: Jack Curtis WEST v. Evangelene Kennedy WRIGHT et al. etc.
• Court: Maryland Court of Appeals

Page 297

263 Md. 297

283 A.2d 401

Jack Curtis WEST v. Evangelene Kennedy WRIGHT et al. etc.

No. 51.

Court of Appeals of Maryland.

Nov. 9, 1971.

Abel J. Merrill, Annapolis (Albert J. Goodman and Goodman, Bloom & Merrill, Annapolis, on the brief), for appellant.

No brief filed on behalf of appellees.

Argued before HAMMOND, C. J., and BARNES, FINAN, SINGLEY and DIGGES, JJ.

DIGGES, Judge.

This is an appeal from the Circuit Court for Anne Arundel County where Judge Wray, sitting in equity, decreed that the surname of two young children be changed to the last name of their stepfather. The controversy really originated in 1961 when appellant, Jack Curtis West and his former wife, the appellee, Evangelene Kennedy Wright were divorced. At that time Mrs. Wright was given custody of the two children, Todd Curtis West, who is now twelve years old and his younger brother, Phillip Jay West, now eleven. The father was given visitation rights and required to make monthly support payments, which he has done punctually and without fail. Both parents remarried and the mother moved to Maryland, about 300 miles from her former husband. This distance has proved a major impediment to the frequency of visits between father and sons. Mr. West works six days a week and it is very difficult for him to come to Maryland. Similarly it is hard for the boys to stay with their father in Pennsylvania, because his home is quite small and he has two children of his subsequent marriage. However, the appellant does manage to spend at least two to three days a year with Todd and Phillip, some times more, taking them fishing or swimming, and being with them several hours each of those days. This he does when the children visit their grandparents (both his and Mrs. Wright's parents). The father does not often call or write his sons, explaining that until now they were very young and could not 'carry on a conversation over the telephone or writing'; but he does maintain contact by sending them presents on their birthdays and at Christmas. He has also designated the boys as beneficiaries of life insurance policies and bonds and Mr. West wants this property inherited under his surname.

Mrs. Wright, the mother, says that since she remarried, the children have been embarrassed that their last name differs from hers. She claims that they have been teased by classmates and have even been involved in fights because of this.

The trial judge concluded that it would best serve the interests of the boys to allow the name change. He based his decision solely on the sparsity of communication between the father and his sons, as well as 'the cruelty of children to other children who are 'different." Mr. West contends on appeal that Judge Wray was in error in concluding that these circumstances justified a change of name. We agree and reverse the trial judge's decree.

This is a case of first impression in Maryland, but the rule in other courts has been to look at what is in the best interests of the child before determining if a name change is warranted. Degerberg v. McCormick,41 Del.Ch. 46, 187 A.2d 436 (1963); Mark v. Kahn, 333 Mass. 517, 131 N.E.2d 758, 53 A.L.R.2d 908 (1956); Kay v. Kay, 51 Ohio Op. 434, 65 Ohio L.Abs. 472, 112 N.E.2d 562 (1953); Clinton v. Morrow, 220 Ark. 377, 247 S.W.2d 1015 (1952). However, courts are also most reluctant to allow such a change except under extreme circumstances. As the New York court said in Application of Yessner, 61 Misc.2d 174, 304 N.Y.S.2d 901, 903 (1969) '* * * to deprive the son of his father's surname is a serious and farreaching action * * * the father has a natural right to have his son bear his name and * * * the court should not endeavor to interfere with the usual custom of succession of paternal surname nor foster any unnatural barrier between father and son.' Application of Keach, 51 Misc.2d 1097, 274 N.Y.S.2d 938 (1966); Lazow v. Lazow, 147 So.2d 12 (Fla.App.1962), 53 A.L.R.2d 914; cf. Watson v. Dockett, 229 Md. 63, 181 A.2d 461 (1962). Nevertheless, the father's right to perpetuate his name in his son is certainly not absolute; it can be forfeited by conduct inimical to the child. Application of Yessner, supra. 'The sins of the father should not be visited upon the children', ¹ Application of Fein, 51 Misc.2d 1012, 274 N.Y.S.2d 547 (1966).

Courts of our sister states have usually made inquiries along the following lines in deciding cases involving a name change of minor children:

1. Is there any proof of misconduct by the natural father which might make the continued use of the name by his children shameful or disgraceful?

2. Has the father wilfully abandoned or surrendered the natural ties between himself and his children?

Application of Keach, supra, 274 N.Y.S.2d at 940; Degerberg v. McCormick, supra, 187 A.2d at 439; Sobel v. Sobel, 46 N.J.Super. 284, 134 A.2d 598 (1957). In addition some courts have also taken into account other factors such as the age of the children involved and in one case even went into an elaborate discussion of whether a name per se was embarrassing. Worms v. Worms, 252 Cal.App.2d 130, 60 Cal.Rptr. 88 (1967).

We agree with the utilization of these general considerations and will analyze the facts of the present case accordingly. The most prevalent basis for allowing a change of name is where there is proof of serious misconduct by the father which adversely affects the best interests of his children. In Application of Fein, supra, the New York court allowed a name change because the father was serving a life sentence in prison for second degree murder. The court said at 274 N.Y.S.2d page 554: 'The arrest, trial, sentence and appeals aroused wide notoriety, of the sensational type, because of the unusual features of the case. It has attracted the most distasteful kind of publicity. This naturally has brought shame, disgrace and distress to his family.' In Application of Yessner,supra, the New York court came to the same result when the father was convicted of manslaughter for choking the child's maternal grandfather to death. In W. v. H., 103 N.J.Super. 24, 246 A.2d 501 (1968) the New Jersey court allowed a name change in a case where the father was in prison for having sexual intercourse with his eleven year old daughter. There are no hard and fast...