McMahon v. Wirick

PRESENT: All the Justices

STACY McMAHON
OPINION BY
v. Record No. 131910 JUSTICE CLEO E. POWELL
SEPTEMBER 12, 2014
MELANIE WHITE WIRICK

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Randy I. Bellows, Judge

Stacy McMahon (“McMahon”) appeals the judgment of the trial

court denying his petition to change the surname of his

daughter. Finding that McMahon failed to present any evidence

that such a change was in the best interest of the child, we

will affirm the judgment of the trial court.

I. BACKGROUND

McMahon and Melanie White Wirick (“Wirick”), formerly

Melanie White, are the natural parents of a minor child, Addison

Grace White (“Addison”). McMahon and Wirick were never married

and Addison’s surname, White, is Wirick’s maiden name. At some

point after Addison’s birth, Wirick married and took her

husband’s surname.

McMahon and Wirick initially shared joint physical and

legal custody of Addison. This situation became untenable when

Addison reached school age, as McMahon resides in Fairfax County

and Wirick resides in the City of Richmond. The parties agreed

that it was in Addison’s best interest to attend Fairfax County

schools. Accordingly, the parties agreed that McMahon would
have primary physical custody during the school year and Wirick

would have primary physical custody during the summer.

On April 5, 2013, McMahon filed a petition pursuant to Code

§ 8.01-217 seeking to change Addison’s surname from “White” to

“McMahon.” Wirick objected to the petition.

At trial, McMahon proffered evidence of a number of

difficulties caused by not sharing a surname with Addison.

Specifically, he alleged that he received medical bills with the

name “Addison Wirick” on them, that he had difficulty contacting

Addison’s pre-school because she was enrolled as “Addison

Wirick,” that he is constantly called “Mr. White” at school, and

that a photograph for a school genealogy project identified

McMahon, his wife, his son (Addison’s half-brother) and Addison

as “the White Family.” McMahon also claimed that Addison was

“asking questions of her father.” 1

After considering the arguments of the parties, the trial

court denied McMahon’s petition. It found that “[t]he evidence

that has been proffered by Mr. McMahon’s counsel does

constitute . . . the legal criteria of minor inconvenience and

minor embarrassment.” The trial court explained that McMahon

failed to meet any of the criteria laid out by this Court in

Spero v. Heath, 267 Va. 477, 593 S.E.2d 239 (2004). It further

1
Although the exact nature of these questions was never
addressed, presumably they related to Addison asking why her
surname was different from both her mother and father.

2
noted that, even if it did not consider Spero, the evidence was

not sufficient to demonstrate that a name change was in

Addison’s best interest.

McMahon appeals.

II. ANALYSIS

On appeal, McMahon first argues that the trial court erred

in relying on Spero in determining whether to grant McMahon’s

petition. McMahon contends that Spero is inapplicable because

Addison does not share a surname with either parent. While it

is true that the present case is factually distinguishable from

all of our previous cases on this subject, we hold that the

logic of Spero still applies.

Under Code § 8.01-217, the parent seeking to change a

child’s surname over the objection of the other parent bears the

burden of proving that the name change is in the child’s best

interest. See Spero, 267 Va. at 479, 593 S.E.2d at 240; May v.

Grandy, 259 Va. 629, 633, 528 S.E.2d 105, 107 (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). In

Flowers, this Court explained that, to prove that the name

change is in the child’s best interest, the petitioning parent

must demonstrate that “substantial reasons exist for the

change.” 218 Va. at 236, 237 S.E.2d at 113. The Court then

3
articulated four substantial reasons, which this Court restated

in Spero:

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.”

267 Va. at 479-80, 593 S.E.2d at 240 (quoting Flowers, 218 Va.

at 236-37, 237 S.E.2d at 113).

It is readily apparent that our language in Flowers and

Spero is not a “test” as McMahon characterizes it. The “test”

is whether the name change is in the child’s best interest. See

Flowers, 218 Va. at 235-36, 237 S.E.2d at 112-13. Flowers and

Spero merely provide a non-exclusive list of “substantial

reasons” that have been recognized by this Court and others as

prima facie evidence that the name change is in the child’s best

interest.

We recognize that, unlike the present case, all of our

previous cases on this issue have involved at least one parent

who shared a surname with the child. Nevertheless, the

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controlling standard remains the same – that the petitioning

party must “prove by satisfactory evidence that the change is in

the child’s best interest.” Id. at 480, 593 S.E.2d at 240

(quoting Rowland, 259 Va. at 308, 525 S.E.2d at 919; May, 259

Va. at 632, 528 S.E.2d at 106). Accordingly, we hold that the

trial court did not err to the extent that it relied on our

holding in Spero to determine whether the name change was in

Addison’s best interest.

McMahon further argues that, notwithstanding its reliance

on Spero, the trial court abused its discretion in denying his

petition because it is fundamentally in Addison’s best interest

to share a surname with one of her parents. Stated differently,

McMahon argues that ensuring that a child shares a surname with

at least one parent is a substantial reason for changing the

child’s name. Again, we must disagree.

If one parent objects to the proposed name change of a

child, the trial court is required to consider whether the name

change is in the best interest of the child. See Flowers, 218

Va. at 235-36, 237 S.E.2d at 112-13. We have recognized that

trial courts are “vested with wide discretion” in determining a

child’s best interest. Dyer v. Howell, 212 Va. 453, 458, 184

S.E.2d 789, 793 (1971). Accordingly, we will only reverse a

trial court’s decision to grant or deny a name change upon a

showing that the trial court abused its discretion. See May,

5
259 Va. at 632-33, 528 S.E.2d at 106-07 (holding that the trial

court did not abuse its discretion in granting the name change

over the objection of a parent); Rowland, 259 Va. at 309, 525

S.E.2d at 919 (holding that the trial court abused its

discretion in granting the name change over the objection of a

parent).

This Court has never held that it is fundamentally in a

child’s best interest to share a surname with a parent.

Although we have recognized that “a child’s use of [a parent]’s

surname is relevant to a determination of the child’s best

interest,” Beyah, 231 Va. at 436, 344 S.E.2d at 911, we have

stopped short of saying that sharing a surname was dispositive

of the child’s best interest. Further, our recognition of the

relevance of a child sharing a surname with a parent in Flowers

was based on our reluctance to change a child’s surname over the

objection of the parent who shared that surname “for fear that

the change would damage further the already strained [parent]-

child relationship.” Flowers, 218 Va. at 236, 237 S.E.2d at

113. Where, as here, neither party shares a surname with the

child, any potential damage would be negligible. Thus, the

relevance of sharing a surname is necessarily diminished and is

not dispositive of the present case.

McMahon next argues that the trial court abused its

discretion because he presented sufficient evidence that the

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name change was in Addison’s best interest. McMahon contends

that he presented evidence that his having a different surname

from Addison resulted in confusion with regard to communications

with her preschool and with her health insurance carrier. 2 He

also relies on the embarrassing situations caused by having

different surnames, such as the incorrectly labeled picture and

being referred to as “Mr. White” at Addison’s school.

It is important to note that the evidence presented by

McMahon involved the inconveniences and embarrassment that he

felt as a result of having a different surname. McMahon failed

to produce any evidence that Addison suffered any such

inconveniences or embarrassment, much less that she suffered

“substantial detriment.” The closest that he came to proffering

any evidence related to the effect having a different surname

has had on Addison was a statement that Addison was “asking

questions of her father.” Indeed, McMahon admitted that he had

no evidence that Addison would “suffer substantial detriment by

bearing the surname . . . she currently bears.”

This Court has repeatedly admonished that “[a] ‘change of

name will not be authorized . . . merely to save . . . minor

inconvenience or embarrassment’ to the parent or the minor.”

2
We note that Addison is now covered under McMahon’s
insurance and, as the trial court pointed out, any confusion
related to the prior health insurance “is not likely to recur.”

7
Spero, 267 Va. at 480, 593 S.E.2d at 240. (quoting Flowers, 218

Va. at 237, 237 S.E.2d at 113). Here, the evidence is clear

that McMahon experienced no more than minor inconveniences or

embarrassment and it is inconclusive that Addison experienced

any complications as a result of not sharing a surname. Indeed,

we note that the confusion related to Addison’s school occurred

because Addison was enrolled under the wrong name, not because

she did not share McMahon’s surname. Wirick enrolled Addison in

preschool under the name “Addison Wirick.” The problems with

the health insurance occurred for the same reason: Addison’s

name was incorrect on Wirick’s husband’s insurance. Both of

these problems have presumably been resolved, as McMahon is

unlikely to have enrolled Addison in school as “Addison Wirick”

and she is now under McMahon’s insurance, not Wirick’s husband’s

insurance. As for the misidentification in the school

photograph, McMahon failed to offer any evidence as to how this

amounted to anything more than a minor embarrassment.

Accordingly, we cannot say that the trial court abused its

discretion in denying the petition.

III. CONCLUSION

For the foregoing reasons, we will affirm the judgment of

the trial court denying McMahon’s petition to change the surname

of his daughter.

Affirmed.

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JUSTICE McCLANAHAN, concurring.

Although I agree that the trial court did not abuse its

discretion in denying the petition for a name change under the

best interest analysis, I would hold that the four-factor

analysis set forth in Spero v. Heath, 267 Va. 477, 479-80, 593

S.E.2d 239, 240 (2004), is not applicable to this case and that

the trial court erred in applying it.

The controlling standard for determining whether a petition

to change the name of a minor should be granted is explicitly

set forth in Code § 8.01-217. Pursuant to subsection A, when

both parents of the minor are living and the parent who does not

join in the petition objects, “a hearing shall be held to

determine whether the change of name is in the best interest of

the minor.” We have previously interpreted the statute to mean

that “the burden is upon the petitioning parent, under the

circumstances of [the] case, to prove by satisfactory evidence

that the change is in the child’s best interest.” Rowland v.

Shurbutt, 259 Va. 305, 308, 525 S.E.2d 917, 919 (2000).

Under the specific circumstances where the parent objecting

to the name change shares the child’s surname, we have stated

that the parent petitioning for the child’s name to be changed

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

minor by showing” sufficient evidence of one of the following
four factors enumerated in Flowers v. Cain, 218 Va. 234, 237

S.E.2d 111 (1977):

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.”

Spero, 267 Va. at 479-80, 593 S.E.2d at 240-41 (emphasis added)

(quoting Flowers, 218 Va. at 236-37, 237 S.E.2d at 113, and

concluding that petitioner failed “to show any of the criteria

required by Flowers”). This test is clearly intended to apply

when the objecting parent and the child have a common surname.

Under such circumstances, the Court has required the petitioning

parent to prove that the parent sharing the surname with the

child abandoned the child or engaged in conduct that will cause

the child to suffer embarrassment or other harm by bearing the

10
parent’s surname. 1 In my view, the analysis outlined in Spero

cannot logically be applied when the child does not share the

objecting parent’s surname. 2

Addison does not bear Wirick’s surname and, therefore,

McMahon did not seek to prove that Addison should no longer bear

Wirick’s name. 3 In fact, McMahon candidly represented to the

trial court that he was not contending the presence of any one

of the Spero factors. Concluding that the factors in Spero were

controlling, however, the trial court considered each factor,

noting that while the fourth factor was not present due to

Addison’s age, McMahon failed to satisfy any of the other three

factors, and ultimately declared that “the petition will be

denied on that basis.” Since, in my view, the Spero analysis

was inapplicable, I believe the trial court erred in ruling that

1
Under the fourth factor, the petitioning parent may also
prove that the name change is in the best interest of the child
when a child of sufficient age and discretion desires the name
change.
2
Although the majority opinion states that “[i]t is readily
apparent” that the above-quoted language is not a “test,” we
have expressly referred to the four-factor analysis as “the test
for determining whether a name change is in the best interest of
a child.” Spero, 267 Va. at 480, 593 S.E.2d at 240 (emphasis
added). As I stated previously, however, this test, by its
plain language, applies to circumstances in which the child
shares a surname with the objecting parent.
3
Instead, McMahon argued that it was in Addison’s best
interest to share a surname with a parent.

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McMahon’s failure to prove the existence of any of the factors

precluded relief on his petition.

Nevertheless, the trial court then provided an alternative

basis for its ruling: “even if I did not conclude that the

failure to meet any of [the Spero] criteria was a bar to

relief,” the name change was not in the best interest of Addison

under a “best interest analysis.” 4 Code § 8.01-217. Applying

this standard, I agree with the majority opinion that McMahon

failed to prove that the name change was in Addison’s best

interest. 5 Thus, I concur in the Court’s judgment that the trial

court did not err in denying the petition.

4
It is evident the trial court was unsure as to whether the
factors in Spero should apply, which led to the alternative
basis for its decision. Although the majority holds that the
trial court properly relied upon the Spero factors, it does not
discuss the applicability of those factors to this case or
address the trial court’s initial ruling that relief was
precluded on the basis that none of the Spero criteria was met.
In my view, the majority’s ruling that the trial court properly
applied the Spero factors will simply foster continued confusion
as to the applicability of the Spero analysis when the
petitioning parent does not seek to change the child’s surname
from one that is shared with the other parent.
5
Addison continues to share a name with Wirick since Wirick
legally changed her middle name to White. Addison also shares
her surname with her half-brother, Tyler White. Additionally,
Wirick testified that Addison self-identifies as Addy White.

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