Spero v. Heath

Present: All the Justices

JESSICA WYNN SPERO AND ELLA MADISON SPERO, AN INFANT WHO SUES
BY JESSICA WYNN SPERO, HER MOTHER AND NEXT FRIEND

v. Record No. 030495 OPINION BY
JUSTICE DONALD W. LEMONS
DAVID TODD HEATH March 5, 2004

FROM THE CIRCUIT COURT OF HENRICO COUNTY
Gary A. Hicks, Judge

In this appeal, we consider whether a trial court erred

in determining that a name change was in the best interest of

a child, when the child bore the mother's surname and the

natural father petitioned the court to change the child's

surname to the father's.

Ella Madison Spero ("Ella"), born October 30, 2001, is

the daughter of David Todd Heath ("Heath") and Jessica Wynn

Spero ("Spero"). Heath and Spero were never married and ended

their relationship in 2001, before Ella's birth. Also before

Ella's birth, Spero told Heath that he was not Ella's father.

Consequently, Ella received the surname "Spero." A paternity

test, completed in January 2002, confirmed that Ella was

Heath's child.

Heath filed a petition to change Ella's surname. At the

hearing on the petition, Heath and Spero contradicted one

another concerning the amount, type, and quality of support

provided by Heath for Ella's care. Spero alleged that Heath

was a drug dealer and was planning to move to Amsterdam, which
Heath denied. Heath produced evidence that Spero had been

convicted of "driving under the influence of alcohol within

one year" of Ella's birth. Finally, both Heath's and Spero's

mothers testified about the effect, as they experienced it, of

having a different surname than their children.

At the conclusion of the evidence, the trial court found

"that it is in the best interest of the child that she have

the last name of the petitioner, David Todd Heath." Spero

filed a motion to reconsider. The trial court heard argument

on the motion but reaffirmed the prior judgment changing

Ella's surname to "Heath." The trial court suspended "the

effect" of the order until resolution of the expected appeal

to this Court. Spero appeals the adverse judgment of the

trial court.

We will consider the evidence in the light most favorable

to the respondent, Heath, the prevailing party below. In

Virginia, Code § 8.01-217 delineates the method for changing

the name of a minor. It requires that the person seeking the

name change "apply . . . to the circuit court of the county or

city in which the person whose name is to be changed resides."

It further requires reasonable notice to the parent who does

not seek the name change and a hearing to determine whether

the name change is in the best interest of the minor. Code

§ 8.01-217.

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 The parent petitioning to change the surname of the minor

bears the burden of proving that the change is in the minor's

best interest. See May v. Grandy, 259 Va. 629, 632, 528

S.E.2d 105, 106 (2000); Rowland v. Shurbutt, 259 Va. 305, 308,

525 S.E.2d 917, 919 (2000); Beyah v. Shelton, 231 Va. 432,

434, 344 S.E.2d 909, 911 (1986); Flowers v. Cain, 218 Va. 234,

237, 237 S.E.2d 111, 113 (1977). The petitioning parent may

prove that the name change is in the best interest of the

minor by showing that:

1) The parent sharing his or her surname with the minor

has "abandoned the natural ties ordinarily existing

between parent and child,"

2) The parent sharing his or her surname with the minor

"has engaged in misconduct sufficient to embarrass

the [minor] in the continued use" of the parent's

name,

3) The minor "otherwise will suffer substantial

detriment" by bearing the surname he or she

currently bears, or

4) The minor "is of sufficient age and discretion to

make an intelligent choice and . . . desires that

[his or her] name be changed."

See, e.g., Flowers, 218 Va. at 236-37, 237 S.E.2d at 113. A

"change of name will not be authorized . . . merely to save

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. . . minor inconvenience or embarrassment" to the parent or

the minor. Id. at 237, 237 S.E.2d at 113.

Although our previous cases often use gender specific

terms in enunciating the test for determining whether a name

change is in the best interest of a child, that language

should not be read to mean that there is a presumption that a

child should have the father's surname or that the mother

always bears the burden of proof for or against a petition for

name change. Nothing in the language of the statute suggests

such a presumption. Under the statute, a petition for

changing a child's name must be considered on the particular

facts of the case before the court. The burden is upon the

petitioning party to "prove by satisfactory evidence that the

change is in the child's best interest." Rowland, 259 Va. at

308, 525 S.E.2d at 919; May, 259 Va. at 632, 528 S.E.2d at

106.

In this case, Heath, the parent petitioning to change

Ella's surname, did not offer evidence tending to show any of

the criteria required by Flowers. Spero's DUI conviction

within a year of Ella's birth does not rise to the level of

misconduct sufficient to embarrass the child in the continued

use of the parent's surname. The record does not reflect that

Ella will suffer any form of detriment by continuing to use

the surname "Spero." The record does not reflect that Spero

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has failed to care for Ella, nor that she has engaged in

misconduct sufficient to embarrass Ella in the continued use

of the surname "Spero." The testimony of Ella's grandmothers

fails to rise beyond a catalogue of minor inconveniences and

embarrassment. Based on the record before us, Heath has not

satisfied his burden of proof as the petitioning parent

because he has not offered sufficient evidence to show that a

name change is in Ella's best interest.

We hold that the trial court abused its discretion by

ordering the change in Ella's surname. Accordingly, we will

reverse the judgment of the trial court. The trial court's

order of December 12, 2002 will be vacated and the petition

for name change will be dismissed.

Reversed, vacated, and dismissed.

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