Wright v. Buttercase

• Decision Date: 15 January 2007
• Docket Number: No. WD 67861.,WD 67861.
• Citation: 244 S.W.3d 174
• Parties: Warren Joshua WRIGHT, Respondent, v. Anden Richard BUTTERCASE by his Next Friend, Heather Ladawn BUTERCASE, and Heather Ladawn Buttercase, Appellants.
• Court: Missouri Court of Appeals

244 S.W.3d 174

Warren Joshua WRIGHT, Respondent, v. Anden Richard BUTTERCASE by his Next Friend, Heather Ladawn BUTERCASE, and Heather Ladawn Buttercase, Appellants.

No. WD 67861.

Missouri Court of Appeals, Western District.

January 15, 2007.

Dan Smith, Esq., Rock Port, MO, for Appellants.

Kelli D. Wulff, Esq., Independence, MO, for Respondent.

Before LOWENSTEIN, P.J., ELLIS and NEWTON, JJ.

HAROLD L. LOWENSTEIN, Judge.

FACTUAL BACKGROUND:

Father and Mother were never married but did engage in a brief relationship, the result of which was the birth of one child in March of 2004. Neither parent was certain at that time as to whether Father was the biological parent of the child. In fact, for close to a year, Mother told Father that another man who lived out of state was the child's biological father. She claimed that she was ninety percent sure that this was the case. A year after the child's birth, a friend of Father's informed him that, upon seeing the child, he was certain that the child was Father's. Acting on this information, Father contacted Mother, who agreed to a paternity test. The paternity test confirmed that Father was the child's parent.

After a paternity order was issued in May 2005, Father was allowed to visit the child periodically. Mother stopped allowing visitation in November 2005, and Father responded by bringing an action for a declaration of paternity and order of visitation and custody. At a hearing on April 26, 2006, the circuit court heard testimony from both parents, as well as the pastor of Father's church and one of the child's grandparents. On November 27, 2006, the circuit court entered a judgment finding that Father was the child's parent, ordering joint legal and physical custody, adopting a parenting plan produced by the parties, ordering child support to be paid to Mother by Father, and ordering that the child's surname be changed from Mother's to Father's surname. Mother appeals only the decision to change the child's name.

In her point relied on, Mother asserts that the trial court did not have before it substantial evidence on which to decide that a change in name was in the child's best interests. She notes that Father had the burden of proof, as he was the parent requesting a change in name, and argues that the evidence at trial was insufficient to meet that burden. This court disagrees and affirms the trial court's judgment.

STANDARD OF REVIEW:

In a court tried case, the decision of the trial court must be affirmed unless the judgment is not supported by substantial evidence, it is against the weight of the evidence, or unless it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). When determining the sufficiency of the evidence, this court "will accept as true the evidence and inferences from the evidence that are favorable to the circuit court's decree and disregard all contrary evidence." T.B.G. v. C.A.G., 772 S.W.2d 653, 654 (Mo. banc 1989).

Neither parent has an absolute right for a child born out of wedlock to bear that parent's surname. Cobb by Webb v. Cobb, 844 S.W.2d 7, 9 (Mo.App. 1992). The circuit court has wide discretion with regard to changes of surname, in paternity actions and should be guided by what is in the best interests of the child in determining the appropriate surname. Id. For this reason, this court will accept the circuit court's ruling unless it is "`clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration.'" Morris by Cope v. Morris, 926 S.W.2d 87, 89 (Mo.App.1996) (quoting State ex rel Webster v. Lehndorf Geneva, Inc. 744 s.W.2d 801, 804 (Mo. banc 1988)). "[I]f reasonable men can differ about the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion." Lehndarff Geneva, Inc., 744 S.W.2d at 804.

DISCUSSION:

The parent seeking to change the child's surname bears the burden of proving that the change is in the child's best interests. Schubert v. Tolivar, 905 S.W.2d 924, 926 (Mo.App.1995). There is no presumption that the child's best interests are served by carrying the biological father's surname. Blechle v. Poirrier, 110 S.W.3d 853, 855 (Mo.App.2003). Instead, certain factors should be considered. M.L.H. by D.R.H. v. W.H.P., 831 S.W.2d 677, 679 (Mo.App.1992). "These factors include the child's age, the potential embarrassment or discomfort the child would experience when his or her surname is different than the custodial parent, and how the name change will affect the child's relationship with his parents.'" Id. (quoting R.K, T.S. by V.T. v. R.S., 819 S.W.2d 749, 750 (Mo.App.1991)). A father's remark that he would like his child's name to be changed is not sufficient evidence to overcome his burden of proof. Blechle, 110 S.W.3d at 855. Also, testimony that amounts only to, an explanation of the father's motivation for seeking a change in surname does not constitute evidence that the name change is in the best interests of the child. See C.R.F ex rel. C.R.C. v. B.M.F., 174 S.W.3d 90, 92 (Mo.App.2005).

The trial court considered each factor noted by M.L.H. in deciding that the change in surname was in the best interests of the child. There is ample evidence in the record to support the court's decision on these factors. First, with respect to the age of the child, the trial court heard the testimony of Mother that the child was essentially too young to be confused or upset by having his surname changed. Mother testified:

Q. [The child] doesn't use his last name—I mean, he doesn't call himself [by his full name], does he?

A. No, not at this time.

Q. Okay. Does he—He speaks, but—

A. Yes.

Q.—he just calls himself [by his first name]? A. He actually doesn't even say his first name.

Q. Okay.

A. I mean, he can. He just doesn't call himself by his first name.

Q. SO he—he doesn't really use his first or last name at this point in his life?

A. That is semi correct.

Q. Okay. Well, what's incorrect about it?

A. I mean, he'll say—he can say his first name. And he's heard his last name. And that's kind of a long name to say, so—At the age of two I, think it would be hard for any two-year-old to say that last name.

Q. And you would agree that at this point he's not able to write his first or last name, nor should he be expected to?

A. That is correct.

Mother further testified that the child had not been enrolled in school under his surname or otherwise become known by that name. This court agrees with the trial court's assessment that the child's age at the time of the change in name was conducive to effecting the change with minimal psychological impact. The trial court also considered, in its judgment, the potential embarrassment or discomfort the child might experience as a result of having a different surname than his custodial parent. At the hearing, Mother testified that she had two children. The older child was seven at the time of the hearing, was not a child of Father, and carried the surname of her biological father. Thus, the two children already had different surnames. Furthermore, Mother testified that she hoped to soon marry and intended to take the surname of her spouse when she did so. This would leave each child with a different surname than Mother and the child involved in this suit with a surname that matched neither his mother's nor his father's. Substantial evidence existed supporting the trial court's decision that little, if any, embarrassment would come from switching the child's surname to that of Father.

With regard to the M.L.H. factors, the trial court found that considerations of how the name change would affect the child's relationship with his parents cut in favor of the change. The court had before it the testimony of Father that he was trying to build a relationship with the child. Mother also testified that Father was attempting to do so. Additionally, Father testified to the effect that every child in the surrounding community carried his or her Father's surname and that the name change would help the child identify with Father's family. The trial court found that, in this situation, the child was more likely to "feel accepted by the father if the child bears the father's name." It also found that, since the child was so young, the name change would not alter his relationship with Mother. The testimony discussed above provides substantial evidence to support these findings. In its judgment, the trial court discussed at length the 1992 decision of this court in Cobb by Webb v. Cobb. See 844 S.W.2d 7 (Mo.App.1992). In their briefs, the parties disagree as to how closely Cobb tracks the situation at bar. Contrary to Mother's arguments, Cobb is on point and supports the trial court...