Present: Carrico, C.J., Compton, ∗ Lacy, Hassell, Keenan, Koontz,
and Kinser, JJ.
LINDA ROWLAND
OPINION BY JUSTICE A. CHRISTIAN COMPTON
v. Record No. 990923 March 3, 2000
EDWARD DAVID SHURBUTT
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
Russell I. Townsend, Jr., Judge
This is the appeal of an order granting a natural father's
petition to change the surname of his minor child. The central
issue is whether the evidence is sufficient to support the trial
court's ruling.
The facts, considered during a March 1998 hearing, are not
disputed. The only testimonial evidence presented was the
deposition of a psychiatrist, who had been employed by the
father.
The child, a male, was born in Norfolk on September 3,
1991. His mother, residing in Chesapeake, is appellant Linda
Grant Rowland. His father, residing in Virginia Beach, is
appellee Edward David Shurbutt.
When the child was conceived, the mother was not married to
the father and was separated from her spouse. When the child
was born, the mother and her husband had reconciled and the
child was given the surname "Rowland," a name he still carries.
∗
Justice Compton participated in the hearing and decision of
this case prior to the effective date of his retirement on
Since birth, the child has been in the physical custody of
his mother. Court orders provide, however, that both parents
have "joint legal custody" of the child. The parents have been
litigating issues concerning child custody, child support, and
visitation most of the child's life.
In March 1998, the father filed duplicate petitions in the
court below to change his child's surname to "Shurbutt." The
father asserted that he desired to change the name in order "to
prevent confusion and difficulty in the transaction of the minor
child's lawful affairs" and that the name change would be in the
child's best interest. The mother objected to the proposed
change.
Following the hearing, the trial court concluded that the
child's best interest would be served by granting the father's
petition. In a February 1999 order, from which we awarded the
mother this appeal, the court ruled that the child's name be
changed as requested, finding that "good cause was shown for
this action." The court also ruled, however, that the child's
name remain unchanged pending appeal.
On appeal, the mother contends that the trial court erred
in ordering the name change because the evidence was
insufficient to support the order. The father, while contending
February 2, 2000.
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the evidence was sufficient to support the order, also argues
that this Court is without jurisdiction to consider the appeal.
We shall address the jurisdictional question first.
Although not argued orally, the father contends on brief that
the Court of Appeals of Virginia, not this Court, has
jurisdiction of this appeal. He points out that Code § 17.1-
405(3)(e) provides that appeals of circuit court orders relating
to the "control or disposition of a child" must be made to the
Court of Appeals. This is such a proceeding, he says, and the
appeal should be dismissed. We do not agree.
Ordinarily, a proceeding under the change-of-name statute,
Code § 8.01-217, is an independent civil action. But see Code
§ 20-121.4 (permitting divorce court to restore party's former
name as part of final decree of divorce from bond of matrimony).
Although the present matter, brought as a separate proceeding
detached from any custody or support litigation, obviously
relates to a child, it does not involve the "control or
disposition of a child," within the meaning of Code § 17.1-
405(3)(e).
An order in an independent civil action changing a name,
including that of a child, is "a final judgment" in a "civil
case," within the meaning of Code § 8.01-670(A)(3), which
provides for appeal of such an order to this Court. Thus, we
properly have taken jurisdiction in this matter.
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We shall now turn to the central issue, that is, whether
the evidence was sufficient to support the name change.
As pertinent to this proceeding, Code § 8.01-217 provides
that any person desiring to change his child's name may apply to
the appropriate circuit court, "which shall consider such
application if it finds that good cause exists therefor under
the circumstances alleged." The statute further provides that
when both of the child's parents are living and when the parent
who does not join in the application objects to the proposed
change, "a hearing shall be held to determine whether the change
of name is in the best interest of the minor." The statute
further provides that unless the court finds that the change of
a minor's name "is not in the best interest of the minor," the
court shall "order a change of name."
We have interpreted these statutory provisions to mean that
the burden is upon the petitioning parent, under the
circumstances of this case, to prove by satisfactory evidence
that the change is in the child's best interest. 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).
As we examine the facts, it must be remembered that because
the evidence before the trial court on the subject of the
child's best interest was in the form of a deposition, and the
court did not see and hear the witness, the court's finding of
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fact, while highly persuasive and entitled to great weight, is
not binding on us. Johnson v. Insurance Co. of N. Am., 232 Va.
340, 345, 350 S.E.2d 616, 619 (1986); Kaplan v. Copeland, 183
Va. 589, 593, 32 S.E.2d 678, 679 (1945).
A prolonged recitation of the psychiatrist's testimony,
submitted by the father, is unnecessary. Prior to the March
1998 deposition, the physician had seen the child on three
occasions, the father on eight occasions, and the father's
present wife once. He had "never met" the mother or her
husband. Additionally, the doctor had reviewed a "Social
Services report" resulting from a "home study" that mainly dealt
with the issues of custody and visitation.
When asked his opinion upon whether a change of name "would
be in the child's best interest and what do you base your
opinion on," the psychiatrist stated that he felt two issues
were presented. First, a child "should be able to carry the
name of both his parents." The "second issue," he said, relates
to the father's role in the child's development.
The witness noted that the father "has been extensively
involved with the child . . . being very much involved in his
care and his education and . . . also has been a very good
provider. He's accepted whatever economic responsibilities are
there." Therefore, the doctor opined, "it should be very simple
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that [the child] should carry the names of the parents that are
biologically his parents."
The witness was asked whether it would be "harmful" to
change the child's name in view of the fact that he had carried
the name Rowland for more than six years. The doctor responded
that it would not be a "problem" for the child, but that the
"problem is going to be with the adults trying to accept
whatever decision is made."
The witness said the child "has been able to merge very
well with both sets of parents," noting that the child "has no
difficulty dealing with" living in the primary custody of his
mother and having regular visitation with the father. Noting
that the mother and father "are very good parents," the doctor
stated that the child is "probably the best balance[d]" of all
the parties involved.
According to the witness, the child is a "very healthy
kid"; he is "progressing normally," "interacting appropriately,"
and "maturing" both "[s]choolwise" and "socialwise."
Finally, the witness said that he did not "care" if the
child's surname was "hyphenated," but that the father "has the
right" for the child to carry his "last name."
We hold that the psychiatrist's testimony, and the record
as a whole, fails to establish by satisfactory evidence that the
change of name is in the child's best interest. The
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psychiatrist's opinions, which either were nonresponsive to the
issue or were contradictory, focused mainly on the father's
"rights," only tangentially addressing the child's interests.
Actually, the testimony supports the view that the child's best
interest will be served if his name remains unchanged. With his
present name, he is healthy, happy, developing normally in
school and socially, and is the best balanced of all the
parties.
Consequently, we conclude that the trial court abused its
discretion in granting the name change. Thus, the order below
will be reversed and the father's several petitions will be
dismissed.
Reversed and dismissed.
JUSTICE KOONTZ, concurring in part and dissenting in part.
I concur with the majority’s holding that this Court, and
not the Court of Appeals of Virginia, has jurisdiction over this
appeal. However, because I disagree with the majority’s further
holding that “the psychiatrist’s testimony, and the record as a
whole,” fails to establish that the change of name in question
is in the child’s best interest and, therefore, that the trial
court abused its discretion in granting the natural father’s
petition to change the surname of his child, I respectfully
dissent.
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The majority gives little, if any, consideration to the
mandate of Code § 8.01-217 that unless the court finds that the
change of a minor’s name “is not in the best interest of the
minor,” the court shall “order a change of name.” In the
present case, the trial court was presented with a petition by
the natural father to change the surname of his male child from
Rowland, the stepfather’s surname, to Shurbutt, the father’s
surname. The “record as a whole,” carefully considered by the
trial court, reflects that this father is not an “absentee”
parent. As a result of numerous legal proceedings since shortly
after the child’s birth, the courts have awarded “physical”
custody of the child to the mother and “joint legal custody” of
the child to both parents. At the father’s request, the child’s
birth certificate was amended in 1996 to reflect that Mr.
Shurbutt is the child’s natural father. The father visits
regularly with the child, provides regular financial support for
him, and is active in the child’s school activities.
Moreover, it is undisputed that the child is aware that Mr.
Shurbutt is his father and that Mr. Rowland is his stepfather.
Indeed, the child calls Mr. Shurbutt “Dad” and Mr. Rowland
“Pop.” While the majority is critical of the testimony of the
psychiatrist, he very clearly testified that the child should
have the surname Shurbutt and should have had that name “from
the day he was born.” The psychiatrist reasoned that “the true
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identity” of the child was important to the child, the change of
name would be in the child’s best interest because it would
avoid difficulty in school, and “this is the time in [his]
psychosexual development that [he needs] to be clear” concerning
his identity.
Applying the above quoted portion of Code § 8.01-217, the
trial court concluded that the child’s surname should be
Shurbutt rather than Rowland. The trial court exercised its
discretion to make the child’s surname and his birth certificate
reflect the child’s true identity. I cannot conclude that such
was an abuse of judicial discretion under the particular
circumstances of this case.
There are, however, additional reasons that prompt my
dissent in this case. In Flowers v. Cain, 218 Va. 234, 237
S.E.2d 111 (1977), we acknowledged the proposition that a
father’s interest in having his child continue to use his
surname is relevant to a determination of the child’s best
interest. Id. at 236, 237 S.E.2d at 113. While Flowers and
subsequently Beyah v. Shelton, 231 Va. 432, 344 S.E.2d 909
(1986), address a change of name over the objection of a father,
they both support the reasonable conclusion that absent
“substantial reasons” to the contrary, it is in the best
interest of a child to have the surname of his father rather
than the surname of his stepfather. Although we have not
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expressly stated it, the reason should be obvious. A surname is
the family name, it reflects who we are, our true identity, and
unless there are substantial reasons to the contrary a child
should always be permitted to use his father’s family name
rather than the family name of a stepfather. Today the majority
holding casts a shadow of doubt over the rationale of these
cases.
The circumstances in the present case are merely the
reverse of those in Flowers and Beyah. There we prohibited a
change of name over the objection of the father; here the father
seeks a change of name to accurately reflect the child’s true
parentage. In my view, the interest of this father in having
his child use his surname is also in the best interest of his
child and should be accorded the same consideration as the
interests of the fathers in those cases. Granting that
consideration in this case, the child’s surname should not
remain “Rowland” over the father’s objection. In short, the
trial court corrected what was wrong from the day the child was
born and made it right.
Accordingly, I would affirm the judgment of the trial
court.
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