Present: Carrico, C.J., Lacy, Hassell, Keenan, Koontz, and
Kinser, JJ., and Poff, Senior Justice
CHARLES F. MAY
OPINION BY JUSTICE LEROY R. HASSELL, SR.
v. Record No. 991770 April 21, 2000
LINDA GRANDY, ET AL.
FROM THE CIRCUIT COURT OF BOTETOURT COUNTY
George E. Honts, III, Judge
In this appeal, we consider whether the evidence is
sufficient to support the circuit court's order granting a
natural mother's petition to change the surname of her minor
child.
The following undisputed facts were adduced during an ore
tenus hearing. Linda Grandy is the natural mother of
Elizabeth Nicole May, who was born on January 14, 1987.
Charles F. May is Elizabeth's natural father.
Elizabeth lives with her mother, her stepfather whose
surname is Grandy, and other family members. Elizabeth
testified "that she had been asking her mom to have her name
changed to the name of Grandy for the last four . . . years."
Elizabeth stated that she would feel more a part of her family
with whom she resided if she had the last name of Grandy.
Linda Grandy testified "that at no time had she ever
hindered or obstructed Charles May from seeing his daughter,
and in fact had encouraged a healthy relationship between the
two." Charles May agreed that he had "always received a
congenial response to requests of visitation." Elizabeth
testified that "her father does not call or visit her, and
that it had been 2 1/2 years since the last visit." When
Charles May was asked "why he had not exercised his right of
visitation . . . he stated it was due to his job schedule and
traveling."
The evidence was uncontroverted that Charles May had not
mistreated or abused Elizabeth, nor had he committed any act
of misconduct toward her. He also testified that he had
"never abandoned his daughter." Charles May "did not want his
child's name changed to that of the step-father (Grandy)."
Following the hearing, the circuit court entered an order
concluding that Elizabeth's best interest would be served by
granting the mother's petition. Accordingly, the child's
surname was changed to Grandy.
On appeal, the father contends that the circuit court
erred in ordering a change of Elizabeth's name because "as the
natural father [he] had committed no wrong against the child."
The father also asserts that the circuit court erred "in
granting the name change on the basis of inconvenience or that
the child might be embarrassed to have a different last name
than her mother." We disagree with the father's contentions.
As relevant to this proceeding, Code § 8.01-217 provides
that a parent desiring to change a child's name may apply to
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the appropriate circuit court "which shall consider such
application if it finds that good cause exists therefor under
the circumstances alleged." Code § 8.01-217 also states in
relevant part:
"In case of a minor who has both parents living, the
parent who does not join in the application shall be
served with reasonable notice of the application
and, should such parent object to the change of
name, a hearing shall be held to determine whether
the change of name is in the best interest of the
minor."
Code § 8.01-217 requires that the petitioning parent
prove by satisfactory evidence that the change of name is in
the child's best interest. Rowland v. Shurbutt, 259 Va. 305,
308, ___ S.E.2d ___, ___ (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).
In Flowers, 218 Va. at 236-37, 237 S.E.2d at 113, we
discussed the factors that we consider when applying the best
interest test:
"Generally, a [name] change will be ordered only if
(1) the father has abandoned the natural ties
ordinarily existing between parent and child, (2)
the father has engaged in misconduct sufficient to
embarrass the child in the continued use of the
father's name, (3) the child otherwise will suffer
substantial detriment by continuing to bear the
father's name, or (4) the child is of sufficient age
and discretion to make an intelligent choice and he
desires that his name be changed. But, 'a change of
name will not be authorized against the father's
objection . . . merely to save the mother and child
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minor inconvenience or embarrassment.' [Citations
omitted]."
Accord Beyah, 231 Va. at 435, 344 S.E.2d at 911.
Viewing the evidence in the light most favorable to the
mother, the prevailing party below, we hold that the evidence
is sufficient to support the circuit court's holding that the
change of name is in the child's best interest. Even though
Charles May had not abandoned his child, the circuit court was
certainly entitled to place great weight upon the fact that he
"does not call or visit her, and that it had been 2 1/2 years
since the last visit," even though the mother sought to
encourage "a healthy relationship" between Charles May and his
daughter. Indeed, the father admitted that with the exception
of one occasion, the mother "had never hindered or stopped him
from seeing his daughter." The circuit court also considered
other factors, including Elizabeth's desire to change her
name, her age, and her level of maturity.
We recognize that a circuit court cannot change a child's
name because of minor inconvenience or minor embarrassment.
We also recognize that a circuit court must not change a
child's name over the objection of the natural father solely
because a child desires to bear that child's stepfather's
surname. Rather, Code § 8.01-217 requires that a parent, who
seeks to change a child's surname over the objection of the
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other parent, demonstrate with satisfactory evidence that the
requested name change is in the child's best interest. The
mother demonstrated with satisfactory evidence that the name
change was in the best interest of Elizabeth and,
consequently, we hold that the circuit court did not abuse its
discretion in granting the name change. Accordingly, we will
affirm the order granting the name change.
Affirmed.
JUSTICE KOONTZ, dissenting.
I cannot join in the majority opinion in this case. In
my view, the record does not support the majority’s holding
that the mother here met her burden, under Code § 8.01-217, to
demonstrate with satisfactory evidence that the name change is
in the best interest of her child and, consequently, that the
trial court did not abuse its discretion in granting the name
change over the objection of the child’s natural father.
Accordingly, I respectfully dissent.
The result reached in this particular case is not,
however, the primary reason that prompts my dissent. Rather,
I am concerned that the majority opinion will give a degree of
credence to assertions in the trial courts in future factually
similar cases that this Court no longer strictly adheres to
the essential thrust of our prior decisions first in Flowers
v. Cain, 218 Va. 234, 237 S.E.2d 111 (1977), and later in
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Beyah v. Shelton, 231 Va. 432, 344 S.E.2d 909 (1986). Until
today, those decisions have stood for the simple proposition
that absent “substantial reasons” to the contrary, it is in
the best interest of a child to have the natural father’s
surname rather than stepfather’s surname. Flowers, 218 Va. at
236, 237 S.E.2d at 113; Beyah, 231 Va. at 434-35, 344 S.E.2d
at 911.
Regrettably, the factual background in which this case
arose in the trial court, as accurately related in the
majority’s factual recitation, is an all too familiar one.
More regrettably, similar factual scenarios will undoubtedly
occur in the future involving different parties and result in
a petition in other cases by a mother to change the surname of
her child from a prior marriage to the surname of the mother’s
current husband. It is because these circumstances arise so
frequently that we have required more than minor inconvenience
or embarrassment to the mother and child to authorize a change
in the surname of the child over the objection of the natural
father. The consistency of that requirement avoids meritless
litigation and needless emotional and financial strain upon
divorced parents and their children.
In the present case, however, the majority opinion
appears to lower the bar. It is not readily apparent that
substantial reasons were established to authorize the name
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change of the child. The child’s expression that “she would
feel more a part of her family with whom she resided if she
had the last name of [her stepfather]” is not a substantial
reason to authorize the name change. Indeed, the majority’s
primary focus is upon the father’s failure to call or visit
the child for “2 1/2 years since the last visit” and it
permits the trial court “to place great weight” upon that fact
in determining the best interest of the child. Make no
mistake; I do not defend this failure of the father regardless
of “his job schedule and traveling” upon which the father
attempts to justify the failure to have regular contact and
visitation with his child. However, standing alone that
failure does not constitute a substantial reason, in light of
all of the circumstances of this case, to authorize the name
change of his child over his objection. The father has not
“abandoned his daughter.”
Nevertheless, I dissent in this case because we are not
told by the majority whether the same result would obtain
whether a father fails to call or visit his child for a period
of one year, six months, three months, or even one month
although such periods of parental absence surely reflect less
than what one would expect from a proper father concerned with
the best interest of his child. Thus, in my view, to permit
“great weight” to be given to the father’s failure to maintain
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more appropriate visitation with his child is more in the
nature of a punitive reaction to the father’s conduct than an
appropriate means to determine whether such conduct amounts to
a substantial reason to conclude that a name change is in the
best interest of the child. Moreover, such an approach to a
determination of the best interest of a child in these cases
clouds the clear import of our decisions in Flowers and Beyah
and in so doing creates uncertainty where there was certainty
in the rights of parents in these regrettable circumstances.
For all these reasons, I would reverse the judgment of
the trial court.
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