Wheat, In re, s. 16843
| Decision Date | 27 August 1990 |
| Docket Number | 16844,Nos. 16843,s. 16843 |
| Citation | 794 S.W.2d 710 |
| Parties | In re Change of Name of Sonya Lyn WHEAT, Jessica Dawn Wheat, and Johnathan Trent Wheat, Petitioners-Appellants (Two Cases). |
| Court | Missouri Court of Appeals |
Kenneth A. Wagoner, Brill, Moore & Wagoner, P.C., West Plains, for petitioners-appellants.
These two appeals are consolidated for the purpose of opinion. As they arise from one continuous saga, we shall set forth the pertinent facts at the outset. However, the legal issues in each appeal are unique to it; consequently, we shall address the legal issues separately.
On December 14, 1989, Sonya Lyn Wheat filed an application in the Circuit Court of Howell County to be appointed next friend for her two minor children, Jessica Dawn Wheat and Johnathan Trent Wheat. The application averred both children resided with Sonya and that both children were under the age of fourteen years. The application stated the appointment was for the purpose of instituting an action to change the children's names. The court clerk made the appointment. Rule 52.02(b). 1
The petition for change of name listed three petitioners: Sonya, Jessica and Johnathan. The petition pled that all three desired to change their surname to Hensley. The petition explained: (1) Sonya was once married to Jason Dal Wheat, father of Jessica, but the marriage had been dissolved, (2) Jason pays no child support for Jessica and keeps no contact with her, (3) Johnathan's father is Randy Gene Batesel, who pays no child support for Johnathan and does not oppose the change of Johnathan's surname, and (4) Sonya's maiden name was Hensley.
The action was assigned number CV389-615CC.
In obedience to Rule 95.03, the court clerk sent notice by certified mail to Jason Dal Wheat and Randy Gene Batesel that the court would hear the matter January 16, 1990, at 1:00 p.m. Each notice was accompanied by a copy of the petition. The correspondence to Jason Dal Wheat was addressed "c/o J.D. Wheat, 'K' Highway, West Plains, MO 65775." It came back January 4, 1990, marked "RETURNED TO SENDER, MOVED, LEFT NO ADDRESS 65775."
The case was heard as scheduled January 16, 1990, by Circuit Judge Harold L. Henry. Sonya appeared in person with her lawyer. Neither Jason Dal Wheat nor Randy Gene Batesel was present. Judge Henry appointed Steven Privette, a lawyer in the courtroom, as guardian ad litem for Jessica and Johnathan.
Sonya then testified, confirming the allegations recited in the second and third paragraphs of this opinion. She added: (1) Jessica was born September 28, 1986, (2) the marriage with Jason Dal Wheat was dissolved January 28, 1987, (3) Johnathan was born September 25, 1988, and was given the surname Wheat because that was still Sonya's surname, (4) Sonya was never married to Randy Gene Batesel, (5) Sonya is presently unmarried, and (6) Sonya and both children reside with Sonya's parents on the latters' farm.
Sonya recounted that Jason Dal Wheat had not seen Jessica during the three years since the dissolution, that he had never sent a birthday or Christmas card, that there were "one or more felony warrants outstanding for his arrest," and that Sonya's only contact with him since the dissolution was a telephone call "probably a year ago." At that time, said Sonya, Jason stated he had rented an apartment in Springfield. Sonya "hung up on him" because "he tries to bother me." Asked whether she had any indication Jason had lived elsewhere since the phone call, Sonya responded, "I've heard that he came back to West Plains."
Judge Henry, who had earlier inquired whether Jason had been personally served with summons in the dissolution case or whether service had been by publication, interjected: 2
Following Judge Henry's comment, Sonya's lawyer presented testimony by a Howell County deputy sheriff, who disclosed that in June, 1989, Jason Dal Wheat was residing in West Plains. The deputy recounted that "about two ... months ago" Jason "moved out on K Highway with his parents." The deputy did not know Jason's present whereabouts. The deputy confirmed a warrant was out for Jason's arrest for stealing. Efforts to serve it on several occasions had been unsuccessful. The deputy's testimony continued:
"Q. If a summons in a civil action was delivered to you for service upon Mr. Wheat, would you be able to serve it in Howell County on him?
A. No sir.
Q. Do you know what county to forward it to for service upon him?
A. No sir."
At the conclusion of the hearing, Judge Henry made the following entry on the docket sheet: "Case is taken advisement."
On January 25, 1990, Judge Henry entered the following order:
On February 1, 1990, Sonya filed a new application in the Circuit Court of Howell County to be appointed next friend for Jessica and Johnathan. The application was identical to the earlier one. Again, the court clerk made the requested appointment. Accompanying the application was a new petition for change of name, also identical to the earlier one.
The new case was assigned number CV390-46CC. To differentiate it from the earlier one we henceforth refer to the new case as "case II" and the earlier one as "case I."
The court clerk sent notice by certified mail to Jason Dal Wheat that the court would hear case II March 19, 1990, at 1:00 p.m. The notice, accompanied by a copy of the petition in case II, was addressed to Jason "c/o Howell County Jail, West Plains, MO 65775."
On February 5, 1990, a document styled "Consent to Name Change" was filed in case II. It stated: "I hereby consent to the name change of Johnathan Trent Wheat to Johnathan Trent Hensley." It was dated February 1, 1990, and bore the signature "Randy G Batesel."
On February 7, 1990, Sonya's lawyer filed a document in case II requesting that the case be assigned to Judge David Dunlap, an Associate Circuit Judge of the Circuit Court of Howell County. At the foot of the document was a proposed order to effectuate the assignment. The order was prepared for the signature of Judge Henry, the presiding judge of Judicial Circuit 37, a four-county circuit which includes Howell County. § 478.167, RSMo 1986.
The notice to Jason Dal Wheat was evidently received by him February 9, 1990, as the court file in case II contains a certified mail receipt showing delivery that date.
The next activity in case II occurred February 14, 1990, when Judge Henry entered the following order:
On February 20, 1990, Sonya, Jessica and Johnathan filed in the office of the Clerk of the Circuit Court of Howell County a notice of appeal in case I and a notice of appeal in case II. Both notices were received by the Clerk of this Court February 26, 1990. The appeal in case I was assigned number 16844; the appeal in case II was assigned number 16843.
Appellants' brief 3 presents one point relied on; it avers the trial court erred in denying the relief sought in that appellants followed the procedure for change of name required by § 527.270, RSMo 1986, and Rule 95, and "the proposed name was not bizarre, obscene, offensive, or that of a governmental body."
In Matter of Natale, 527 S.W.2d 402 (Mo.App.1975), the Eastern District of this Court summarized the history of the common law right of a person to change his--or her--name, and held that the method for changing one's name established by § 527.270 and Rule 95 did not abrogate the common law but merely supplemented it. 527 S.W.2d at 405. The opinion explained:
In Natale the petitioner was a married woman who wanted to change her surname from that of her husband (which she had used since marrying him) to Montage. Their home phone number was unlisted because the husband, a school official, wanted to avoid calls there from parents and children. The petitioner, a new lawyer, wanted to use the name Montage for career purposes, one of which was to list the home phone in that name, identifying her as a lawyer. The husband filed an affidavit stating he concurred in his wife's request. The trial court denied the request, evidently believing the change could be detrimental to present and future creditors and to future children of the marriage.
Reversing the judgment, the Eastern District held that the record was bare of evidence of harm to third parties, that possible harm to future children of the marriage was too speculative to deny the request, and that no harm to the State was shown inasmuch as the requested name was not bizarre, obscene, offensive, or that of a governmental body. 527 S.W.2d at 406. The case was remanded to the trial court with a directive to grant the change. Id. at 407.
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