in the Interest of A.E.M., a Minor Child

Opinion issued December 16, 2014

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-14-00123-CV
———————————
IN THE INTEREST OF A.E.M., A Minor Child

On Appeal from the 246th District Court
Harris County, Texas
Trial Court Case No. 2013-29304

OPINION

After meeting with an officer from the Child Support Division of the Office

of the Attorney General, the parents of A.E.M. could not reach an agreement on all

the terms for a child support and custody order. The only issue left unresolved was

whether the child’s last name should be changed to his father’s last name. After a

hearing, the trial court ordered the child’s surname to include his father’s surname.
In three issues on appeal, the mother argues (1) the trial court lacked subject-matter

jurisdiction to order the child’s last name to be changed, (2) the evidence is legally

insufficient to support the change of the child’s last name, and (3) the written

judgment does not conform to the trial court’s orally rendered judgment.

We reverse and render.

Background

After A.E.M. was born, his parents attended a negotiation conference with

an officer from the Child Support Division of the Office of the Attorney General.

The parents reached agreement on most of the issues discussed, but could not reach

an agreement on the last name of the child. The father wanted the child’s last

name changed to his last name. The mother wanted the child to keep her last

name. The Office of the Attorney General filed a petition for confirmation of a

non-agreed order with the trial court. The father filed a request for a hearing on the

non-agreed issues. Specifically, the father requested the trial court to resolve his

request to change the child’s name to his last name.

The trial court held a hearing. At the hearing, the father testified that he

wanted to change the child’s name to his last name because he had a daughter who

had his last name and he wanted them to have the same last name. The father

explained that he had visitation rights with his daughter. The father and mother in

this case had agreed that the father would also have visitation rights with A.E.M.

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The father testified that he also wanted the child to have his last name so there

would be someone to carry on his family name and so that the child would have his

name if the child entered the military. He acknowledged, however, that the child’s

keeping his mother’s last name would not be detrimental to the child.

The mother testified that her last name held respect in the community

because her father had run a business for 33 years in the small town where she

lived. She also testified that the father had indicated he was attending visitation

periods only in an attempt to get their son’s last name changed to his and had told

her at, one time, that he was willing to sign his parental rights away.

The trial court’s judgment orders the child’s last name to be changed to the

father’s last name.

Subject-Matter Jurisdiction

In her first issue, the mother asserts that the trial court lacked subject-matter

jurisdiction to order the child’s last name to be changed.

The dispute over their child’s last name arose during meetings with the

Child Support Division of the Office of the Attorney General. Pursuant to Chapter

233 of the Texas Family Code, the Office of the Attorney General is authorized to

attempt expedited administrative actions concerning child support and medical

support obligations. See TEX. FAM. CODE ANN. § 233.001 (Vernon 2014)

(explaining purpose of chapter is to authorize “Title IV-D” agency to take

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expedited administrative actions concerning child support and medical support

obligations); see also TEX. FAM. CODE ANN. § 231.001(Vernon 2014) (designating

Office of the Attorney General as Title IV-D agency in Texas). If, as here, the

parties cannot reach complete agreement in the administrative process, the Office

of the Attorney General may file a petition for confirmation of a non-agreed child

support order. Id. §§ 233.012(3), .020 (Vernon 2014). After the petition has been

filed, certain strict deadlines apply before a hearing is held on the issues that

remain outstanding. See id. §§ 233.023, .026 (Vernon 2014).

The thrust of the mother’s complaint is that the Office of the Attorney

General lacked the authority to negotiate the last name of the child during the

administrative process and, therefore, the trial court lacked jurisdiction to consider

the matter in the subsequent hearing. We conclude that the trial court had

jurisdiction to determine the last name of the child.

Generally, family courts in Texas have “the jurisdiction and power provided

for district courts by the constitution and laws of this state.” TEX. GOV’T CODE

ANN. § 24.601(a) (Vernon 2004). Additionally, they have primary responsibility

for cases involving family law matters. Id. § 24.601(b). The law on changing a

child’s name is contained in the family code. See TEX. FAM. CODE ANN.

§§ 45.001–.005 (Vernon 2014). Accordingly, it is undisputable that the family

court generally had jurisdiction to determine the child’s last name.

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 The question we must address, then, is whether anything in Chapter 233 of

the Family Code excluded the consideration of the child’s name from the trial

court’s jurisdiction. We apply statutory construction principles in determining

whether a statutory requirement is jurisdictional. City of DeSoto v. White, 288

S.W.3d 389, 394 (Tex. 2009). We review the matter de novo. Id. “We resist

classifying a provision as jurisdictional absent clear legislative intent to that

effect.” Crosstex Energy Servs., L.P. v. Pro Plus, Inc., 430 S.W.3d 384, 391 (Tex.

2014). “Since the Legislature is bound to know the consequences of making a

requirement jurisdictional, one must ask, in trying to determine legislative intent,

whether the Legislature intended those consequences.” Univ. of Tex. Sw. Med. Ctr.

at Dall. v. Loutzenhiser, 140 S.W.3d 351, 359 (Tex. 2004), superseded by statute

on other grounds as recognized in Prairie View A & M Univ. v. Chatha, 381

S.W.3d 500, 511 (Tex. 2012). In determining the legislative intent, we consider

“(1) the plain meaning of the statute; (2) ‘the presence or absence of specific

consequences for noncompliance’; (3) the purpose of the statute; and (4) ‘the

consequences that result from each possible interpretation.’” Crosstex Energy, 430

S.W.3d at 392 (quoting White, 288 S.W.3d at 396).

In determining whether Chapter 233 limits the jurisdiction of the trial court,

we must look at the plain language of the statute. Section 233.001 provides that

the purpose of the procedures specified in the chapter is to enable the Office of the

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Attorney General “to take expedited administrative actions to establish, modify,

and enforce child support or medical support obligations, to determine parentage,

or to take any other action authorized or required under Part D, Title IV, of the

federal Social Security Act (42 U.S.C. Section 652 et seq.) and Chapter 231.” TEX.

FAM. CODE ANN. § 233.001(a).

The purpose of the administrative conference between the parties “is to

provide an opportunity to reach an agreement on a child support order.” Id.

§ 233.012(1). The child support review order is meant to cover topics such as

“current child support, medical support, a determination of any arrearages or

retroactive support, and, if not otherwise ordered, income withholding.” Id.

§ 233.017(a).

However, if the parties do not agree on an order, the child support review

order “may specify and reserve for the court at the confirmation hearing

unresolved issues relating to conservatorship or possession of a child.” Id.

§ 233.017(d). At the hearing on the non-agreed order, “any issues in dispute shall

be heard in a trial de novo.” Id. § 233.025(b).

Even if we concluded that the administrative conference can only cover

matters relating to paternity determinations, child support obligations, and medical

support obligations, the hearing before the trial court on the unresolved issues is

intended to allow matters beyond those limitations, including conservatorship and

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possession of a child. See id. § 233.017(d). While it does not specifically include

name changes as a matter that can be resolved by the trial court, the statute also

does not exclude it. See id.; see also Crosstex Energy, 430 S.W.3d at 392 (holding

presence or absence of specific consequences for noncompliance is factor for

determining whether statute is jurisdictional). Moreover, even if we interpreted

these statutes to restrict the considerations to be taken by the trial court, nothing in

the statutory framework suggests the limitations are jurisdictional. See White, 288

S.W.3d at 395 (holding fact that statutory requirement is mandatory does not mean

compliance with it is jurisdictional).

At best, the fact that changing a child’s name was not identified as a topic to

be resolved in the Chapter 233 hearing before the trial court suggests that it was

not generally intended to be resolved in the hearing. From there, there is no more

than a weak inference to conclude that the legislature intended this to be a strict

jurisdictional limitation. See Crosstex Energy, 430 S.W.3d at 392 (“Although the

plain meaning might suggest a jurisdictional bar, it does not meet the requisite

level of clarity to establish the statute as jurisdictional.”).

Finally, we see no negative consequences that might arise from holding any

limitations on the hearing are not jurisdictional. See id. (holding consequences that

result from each possible interpretation is factor for determining whether statute is

jurisdictional). Even if the name of the child is not generally intended to be part of

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the trial court’s hearing, any injured party can object to its inclusion. See id. at 391

(“A party may waive a mandatory, non-jurisdictional requirement by failing to

timely object.”). Here, instead, the mother actively participated in presenting

evidence on the matter. See Moore v. Altra Energy Technologies, Inc., 321 S.W.3d

727, 734 (Tex. App.—Houston [14th Dist.] 2010, pet. denied) (holding matter is

tried by consent if record shows all parties understood issue was developed in trial

and no party objected).

In contrast, making the matter jurisdictional would open it to indefinite

collateral attack and leading to uncertainty in matters that the parties actively

presented to the trial court. See Crosstex Energy, 430 S.W.3d at 393 (holding it

does not follow that creation of procedural bar means legislature wanted judgment

attacked in perpetuity); White, 288 S.W.3d at 393 (holding that deeming provision

jurisdictional opens way to making judgments vulnerable to delayed attack for

variety of irregularities that should be sealed after judgment).

We hold there was no jurisdictional bar to the trial court’s determination of

the child’s last name. We overrule the mother’s first issue.

Legal Sufficiency

In her second issue, the mother argues that the evidence is legally

insufficient to support the change of the child’s last name.

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A. Standard of Review

We review a trial court’s ruling on a request to change the name of a child

for an abuse of discretion. In re H.S.B., 401 S.W.3d 77, 81 (Tex. App.—Houston

[14th Dist.] 2011, no pet.); In re Guthrie, 45 S.W.3d 719, 723 (Tex. App.—Dallas

2001, pet. denied). A trial court abuses its discretion when it acts in an arbitrary or

unreasonable manner, or if it acts without reference to any guiding rules or

principles. Tex. Dept. of Human Servs. v. E.B., 802 S.W.2d 647, 649 (Tex. 1990);

In re H.S.B., 401 S.W.3d at 81. “The factfinder is the sole judge of the credibility

of the witnesses and the weight to give their testimony.” Bush v. Bush, 336

S.W.3d 722, 730 (Tex. App.—Houston [1st Dist.] 2010, no pet.).

When reviewing the sufficiency of the evidence for an-abuse-of-discretion

review, the sufficiency ground is not an independent issue. See Moreno v. Perez,

363 S.W.3d 725, 735 (Tex. App.—Houston [1st Dist.] 2011, no pet.); In re H.S.B.,

401 S.W.3d at 81. Instead, the sufficiency challenge is incorporated into the abuse

of discretion review. Moreno, 363 S.W.3d at 735; In re H.S.B., 401 S.W.3d at 81.

In this situation, “[o]ur analysis employs a two-pronged inquiry: (1) whether the

trial court had sufficient information upon which to exercise its discretion; and (2)

whether the trial court erred in its application of discretion.” Moreno, 363 S.W.3d

at 735 (citing McGuire v. McGuire, 4 S.W.3d 382, 387 n.2 (Tex. App.—Houston

[1st Dist.] 1999, no pet.)).

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 A party challenging the legal sufficiency of the evidence on an issue for

which it did not carry the burden of proof will prevail if (1) there is a complete

absence of evidence of a vital fact, (2) the court is barred by rules of law or

evidence from giving weight to the only evidence offered to prove a vital fact, (3)

the evidence offered to prove a vital fact is no more than a mere scintilla, or (4) the

evidence conclusively establishes the opposite of the vital fact. City of Keller v.

Wilson, 168 S.W.3d 802, 810 (Tex. 2005). “More than a scintilla of evidence

exists when the evidence supporting the finding, as a whole, rises to a level that

would enable reasonable and fair-minded people to differ in their conclusions.”

Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997) (internal

quotations omitted).

B. Analysis

The father sought to change A.E.M.’s last name to his last name under

authority of Chapter 45 of the Texas Family Code. See TEX. FAM. CODE ANN.

§§ 45.001–.005 (Vernon 2014). Section 45.004 provides, in pertinent part, that

“[t]he court may change the name of a child if the change is in the best interest of

the child . . . .” TEX. FAM. CODE ANN. § 45.004(a)(1). While neither parent has

any specific right to name the child, once the child has been named, the name will

not be changed unless the complaining parent proves there is good reason to

change the name. In re Guthrie, 45 S.W.3d at 724. “The general rule is that courts

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will exercise the power to change a child’s name reluctantly and only when the

substantial welfare of the child requires it.” Id. at 723; see also In re H.S.B., 401

S.W.3d at 83 (“In Texas, courts have held that a child’s name should not be

changed unless the party seeking the change shows that the original name is

detrimental to the child.”).

The statutes permit a name change when it is “in the best interest of the

child.” TEX. FAM. CODE ANN. § 45.004(a)(1). Accordingly, the only facts relevant

to our review of the trial court’s determination are the facts concerning the child’s

best interest; the interests of the parents are not relevant. In re H.S.B., 401 S.W.3d

at 83. The Fourteenth Court of Appeals, in In re H.S.B., reviewed the various

balancing tests used to determine whether a name change was warranted. See id. at

84–85. In doing so, it rejected factors unrelated to the best interest of the child.

See id. (rejecting embarrassment, inconvenience, or confusion suffered by

custodial parent; delay in requesting name change; and parents’ financial support

as factors to be considered). We agree with our sister court that these factors do

not belong in a balancing test focused on determining the best interest of the child.

Accordingly, we adopt the balancing test announced in In re H.S.B. See id. at 84.

Those factors are:

(1) the name that would best avoid anxiety, embarrassment,
inconvenience, confusion, or disruption for the child, which
may include consideration of parental misconduct and the

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 degree of community respect (or disrespect) associated with the
name,

(2) the name that would best help the child’s associational identity
within a family unit, which may include whether a change in
name would positively or negatively affect the bond between
the child and either parent or the parents’ families,

(3) assurances by the parent whose surname the child will bear that
the parent will not change his or her surname at a later time,

(4) the length of time the child has used one surname and the level
of identity the child has with the surname,

(5) the child’s preference, along with the age and maturity of the
child, and

(6) whether either parent is motivated by concerns other than the
child’s best interest—for example, an attempt to alienate the
child from the other parent.

Id.

For the first factor, there was little indication in the record that either

parent’s name would avoid any embarrassment or disruption for the child or that

there was a significant amount of respect or disrespect for either name in the

community. The mother testified that her last name held respect in the community

because her father had run a business for 33 years in the small town where she

lived. The trial court could have discounted this testimony, however. See City of

Keller, 168 S.W.3d at 819, 827 (holding fact finder is sole judge of credibility of

witnesses and weight to give their testimony; legal sufficiency review must credit

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favorable evidence if reasonable fact finder could, and disregard contrary evidence

unless reasonable fact finder could not).

The father argues that this factor weighs in his favor because if he “takes the

child to the doctor, takes the child somewhere with his sister, or attends the child at

school, it will be better for the child to be identified with [the father’s] last name.”

The father overlooks the fact that the mother is the one with the greatest custodial

possession of the child and, therefore, is the one who will most often take the child

to the doctor, take the child out in public, and take the child to school. Based on

the father’s argument, then, this factor weighs in favor of the mother. Viewing the

record in the light most favorable to the ruling, however, we will consider this

factor to be neutral.

For the second factor, the father testified that he had a daughter and that he

wanted them to get to know each other and have the same last name. In In re

H.S.B., the court recognized that sharing a last name with a full or half-blood

sibling was relevant to determining whether the last name should be changed. 401

S.W.3d at 86–87. In that case, the child in question would spend the majority of

his time with his mother and older brother, both of whom had the same last name.

Id. at 80, 87. The child in question and his older brother were close in age and

would regularly attend the same church and the same schools. Id. The court held

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that giving the child the mother’s last name “would more strongly associate H.S.B.

with a family unit consisting of his brother and his custodial parent.” Id. at 87.

In this case, in contrast, the father is not the custodial parent for A.E.M. or

for his daughter. He only has periodic visitation rights for both, and there was no

testimony concerning how much these visitation times would overlap. The father

and mother in this case do not live in the same town or in surrounding towns, and

there is no indication of where the father’s daughter lives. There is also no

indication of the daughter’s age.

In short, there is little evidence that giving A.E.M. the same last name as his

half-sister “would more strongly associate [him] with a family unit.” Id.

Accordingly, while there is some evidence in the father’s favor for this factor, the

overall significance of the evidence is slight.

The father testified that he also wanted the child to have his last name so

there would be someone to carry on his family name and so that the child would

have his name if he entered the military. The father did not explain, however, how

it would be more beneficial to the child to have his last name instead of his

mother’s last name in the event of entering the military or having children of his

own. And the father’s personal desires to have his family name continued or be

represented in the military are not relevant inquiries. See id. at 84 (rejecting

factors that “inappropriately shift the inquiry to the parents’ interests”).

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 The dissent criticizes our resolution of this factor, claiming we have

“accept[ed] the mother’s reasoning and reject[ed] the father’s.” From this, the

dissent characterizes our holding as an improper displacement of the trial court’s

responsibility to resolve conflicts in the testimony. This is not what we have done,

however. It was within the trial court’s discretion to disbelieve the mother’s

testimony concerning the child’s associational identity with the family unit. See

Bush, 336 S.W.3d at 730 (holding factfinder is sole judge of credibility of

witnesses and weight to give their testimony). In accordance, we have not

identified, let alone not placed any reliance on, the mother’s testimony.

Instead, we have focused solely on the evidentiary significance of the

father’s testimony. Because the father provided little to no information about the

other sibling and the amount of time she could potentially spend with A.E.M. to

develop any relationship, we have held that the testimony simply identifying

another sibling who might occasionally see A.E.M. does not have strong

evidentiary significance.

In contrast, the dissent would hold that the mere existence of another child

bearing a parent’s last name would be enough to warrant requiring the child’s

name to be changed. Such a holding stands in stark contrast to the long-standing

“general rule . . . that courts will exercise the power to change a child’s name

reluctantly and only when the substantial welfare of the child requires it.” In re

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Guthrie, 45 S.W.3d at 724. The simple existence of another child who bears the

father’s last name and who might periodically see A.E.M. does not establish that

the substantial welfare of A.E.M. requires a name change.

For the third factor, neither parent testified about the possibility of changing

their last name in the future. See id. This factor is neutral.

For the fourth and fifth factors, the child was nearly one-and-one-half years

old at the time of the hearing. The child had no level of identity with the last name

and had no ability to express a preference for his last name. See id. This factor is

neutral.

For the final factor, there is little evidence to indicate that either parent was

motivated by concerns other than the child’s best interest. The mother testified

that the father had indicated he was only attending visitation periods in an attempt

to get their son’s last name changed to his and had told her at one time that he was

willing to sign his parental rights away. But the trial court could have discounted

this testimony. See City of Keller, 168 S.W.3d at 819, 827. Accordingly, this

factor is neutral.

In total, we have five neutral factors and one factor that slightly favors the

father. “‘The power to change the name of a minor child is exercised reluctantly

and only when necessitated by the substantial welfare of the child.’” In re H.S.B.,

401 S.W.3d at 83 (quoting In re J.K., 922 S.W.2d 220, 222 (Tex. App.—San

16
Antonio 1996, no writ)); accord In re Guthrie, 45 S.W.3d at 724. Given that the

father presented only some slight evidence for one factor of the test for establishing

the propriety of name changes, we hold that the father did not carry his burden of

establishing that the substantial welfare of the child requires the name change. See

City of Keller, 168 S.W.3d at 810 (holding legal sufficiency challenge will be

sustained if party that did not carry burden of proof shows evidence offered to

prove vital fact is no more than scintilla); Havner, 953 S.W.2d at 711 (holding

more than scintilla of evidence exists when evidence rises to level that would

enable fair-minded people to differ in conclusions).

We sustain the mother’s second issue. *

Conclusion

We reverse the portion of the judgment changing the last name of A.E.M.

and render a judgment that his last name remains the same.

Laura Carter Higley
Justice

Panel consists of Justices Higley, Bland, and Sharp.

Justice Bland, dissenting.

*
Because the mother’s third issue would not provide her with greater relief, we do
not need to reach it. See TEX. R. APP. P. 47.1.

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