Worms v. Worms

• Decision Date: 28 June 1967
• Citation: 60 Cal.Rptr. 88,252 Cal.App.2d 130
• Court: California Court of Appeals Court of Appeals
• Parties: Laurie Lynn WORMS and Curtis Jeffrey Worms, Petitioners and Respondents, v. Bernard Albert WORMS, Remonstrant and Appellant. Civ. 29811.

Page 88

60 Cal.Rptr. 88

252 Cal.App.2d 130

Laurie Lynn WORMS and Curtis Jeffrey Worms, Petitioners and Respondents, v. Bernard Albert WORMS, Remonstrant and Appellant.

Civ. 29811.

Court of Appeal, Second District, Division 5, California.

June 28, 1967.

Rehearing Denied July 25, 1967.

Hearing Denied Sept. 21, 1967.

Samuel W. Blum, Los Angeles, for remonstrant and appellant.

Shacknove & Goldman, Los Angeles, for petitioners and respondents.

KAUS, Presiding Justice.

This appeal involves a question of first impression in this state: what are the legitimate criteria for the exercise of the trial court's discretion, when a mother, divorced from the father of her children and since remarried, petitions to have the surname of the children changed to that of her second husband and the natural father objects?

Laurie Lynn Worms, born December 21, 1953, and Curtis Jeffrey Worms, born December 26, 1952, on petition filed as prescribed by section 1276 of the Code of Civil Procedure were permitted to change their last name to that of their stepfather, Melvin Freilich, a medical doctor. Bernard A. Worms, their natural father, who had been divorced by the mother of the minors about eight months after the younger of the two children was born, objected strenuously but to no avail. The only relevant grounds ¹ for the change of name alleged in the petition are:

1. That the children encountered difficulties in school with other students over the name 'Worms,' which name had led to violent conduct on the part of other children and 'many unhappy and unpleasant experiences.'

2. That Mr. Worms had not contributed to the support of his children for about eighteen months and even before then had never been punctual in making his support payments.

Mr. Worms filed objections to the petition, alleging, in effect, that it was just another step in Mrs. Freilich's campaign to alienate the children from him. He also presented reasons for his delinquency in making support payments and asserted his pride in his family name.

The petition came on for hearing. The only witnesses were the Freilichs and Mr. Worms. There is no direct evidence in the record that the children themselves desired the change of name, but there is proof of a very sad absence of affection by the children toward Mr. Worms, particularly on the part of the boy. It is not claimed that this alienation was wanted by Mr. Worms, although it is obvious that he may not always have been very wise in his attempts to prevent it.

The petition came on for hearing together with an order to show cause in re contempt in connection with a large number of support payments which Mr. Worms had failed to make. ² At the conclusion of the hearing he was found guilty on one count of contempt. After some rather weak testimony ³ that in the past the children had suffered embarrassment because of the name 'Worms' the court permitted the change of names as prayed.

The record also contains a good deal of evidence concerning the relationship over the years between Mr. Worms, his children and Dr. and Mrs. Freilich. There is no need to detail the testimony. Those with any experience in these matters know what it is: failure to notify the mother when Mr. Worms would be late or unable to pick up the children, delivery of the children unsuitably dressed for whatever activities Mr. Worms had in mind, friction concerning the choice of doctors and dentists, harsh words between the stepfather and Mr. Worms and an alleged assault on Mrs. Freilich. Finally there is, of course, a rather prolonged period of nonpayment of support. This was explained by Mr. Worms as the result of financial reverses. Although it may well have appeared to the trial court that Mr. Worms gave too high a priority to the repayment of his commercial obligations and although the court was perhaps charitable in finding him guilty of contempt on just one failure to make his periodic payments, the evidence falls far short of that which would be necessary to support a finding that Mr. Worms had, in effect, committed such misconduct as would have justified a forfeiture of his parental rights. (See Guardianship of Case, 57 Cal.App.2d 844, 848, 135 P.2d 681.)

At the conclusion of the hearing the court announced that Mr. Worms was 'unable to see what that name (Worms) means in an American playground context.' The court then gave two examples of foreign names--one Eastern European, the other Oriental--which, it said, were distinguished names in their respective countries but which it was cruel and horrible to force children to use in America, because each name contained a four-letter syllable which, colloquially, denotes excrement: 'The name Worms has scatological overtones, if I have to be so frank with you, in this country and, if you don't know it, it means that you sincerely are still a European.'

After a few more remarks along the same lines the court, without adverting to any other factor pertinent to its ruling, gave Mr. Worms an opportunity to consent that the children could use the name Freilich in school. When no such consent came forth, the decree appealed from was signed and entered.

'Scatological' is defined in all the dictionaries as 'relating to excrement' or 'marked by an interest in excrement or obscenity.' Although there are perhaps prettier names than 'Worms,' it seems obvious that it is not scatological and that it does not have such overtones.

There may be names so repulsive, obscene and embarrassing that a court can consider the very name itself as a significant factor on a petition such as this one, but 'Worms' is not such a name.

The balancing of legitimate competing interests in a case such as this is a ticklish enough process. By throwing the inelegance of the father's name into the scales--indeed, to the exclusion of all other relevant factors--the trial court failed to give the father's objections to the petition the consideration which they deserved. (Cf. People v. Robarge, 41 Cal.2d 628, 634, 262 P.2d 14.)

Our function, however, is not merely negative. We should indicate by what standard the court must be guided at a retrial (Code Civ.Proc. § 53) if Mr. Worms and Mrs. Freilich are unable to adjust the problem amicably.

As we said at the outset, there is no California law precisely in point. After the hearing in the case at bar, Montandon v. Montandon, 242 Cal.App.2d 886, 52 Cal.Rptr. 43, was decided. That case did not involve a formal petition under ...