Workman v. Olszewski

JUSTICE LEAPHART

delivered the Opinion of the Court.

¶1 Appellant Steve Workman (Steve) filed a petition in the District Court to establish paternity, support and custody. The matter proceeded to trial before the Hon. Kenneth R. Neill. The District Court entered its Findings of Fact, Conclusions of Law and Order on December 22, 1997. Steve appeals from that part of the order determining that the child born of the parties shall have the surname of Olszewski, the Respondent’s surname from a prior marriage. We affirm.

¶2 Mario Olszewski (Mario) and Steve had a short-term relationship which resulted in the birth of J.C.O. on July 18,1996. The child’s mother, Mario, had the birth certificate issued in her name of Olszewski; he was also baptized under that name. Olszewski is the mother’s legal name and has been her exclusive surname for over ten years. Ashley Olszewski is the child’s sister’s legal name. The child resides with his mother.

¶3 The issue presented is whether the District Court abused its discretion in concluding that it was in the child’s best interest that he carry the surname of “Olszewski.”

¶4 The District Court, in concluding that it was in best interest of the minor child to carry the last name of “Olszewski,” found:

The Court finds it to be in the best interests of the child that the name remain “Olszewski” based on the following facts: the child has carried said name for the first year and one-half of his life; he was baptized in that name; the mother will be the primary care-giver; the mother and half-sister have the same last name; the mother stated she would not change her last name even in the event of remarriage; the father did not support the child until ordered by this Court to do so and for the foreseeable future the mother will clearly be supplying the majority of the support.

¶5 Steve argues that the District Court abused its discretion since “Olszewski” has no connection to Steve, the natural father; Steve was not listed on the child’s birth certificate; and he did not have any say in what name was chosen for the child’s first, middle or last name. Steve is the only son of Spencer Workman and he argues that if the minor child’s last name is not “Workman,” the name “Workman” will not be carried on into future generations. Steve relies on Overton v. Overton (1983), 207 Mont. 292, 674 P.2d 1089, in support of his argument that the District Court should have changed the child’s name to *329his natural father’s surname. He contends that the District Court overlooked the factors set forth in Overtone.

¶6 We begin our analysis with Firman v. Firman (1980), 187 Mont. 465, 610 P.2d 178. Firman, the natural father, argued that the district court abused its discretion in allowing his two children to use the surname they preferred. Firman contended that this further estranged him from his children. This Court agreed, noting that at common law, a person could adopt any surname he might choose so long as the change was not made for fraudulent purposes. Firman, 187 Mont. at 469, 610 P.2d at 181. “Thus, absent a statute to the contrary, the widespread custom in this country of giving a child the surname of his father is a matter of choice rather than law.” Firman, 187 Mont. at 469, 610 P.2d at 181. For issues concerning the relationship of a father and his child, the court concluded that the overriding principle is the best interests of the child. Given that Firman and the children had lived in the same community and manifested an abiding interest in each other and that Firman had consistently fulfilled his support obligation, the Court determined that it was in the best interests of the children that they use his surname. Firman, 187 Mont. at 470, 610 P.2d at 181. The Court concluded:

Thus until the children reach an age where they can fully understand the circumstances surrounding their parents’ marriage dissolution, the District Court should not permit an unnatural barrier to come between Dale and the children. Such a barrier can only further estrange Dale and the children.

Firman, 187 Mont. at 470, 610 P.2d at 181.

¶7 Firman established that selection of a child’s surname is a matter of choice, not law; that a district court, in determining whether to change a child’s surname, must be guided by the child’s best interests; and finally, that this Court reviews a district court’s determination of best interests under an abuse of discretion standard. Firman, 187 Mont. at 469-70, 610 P.2d at 181.

¶8 In 1983, we decided Overton. Overton and his wife Louise were divorced in 1980, at which time Louise was pregnant. Louise, who had two other out-of-wedlock children with the surname Miller, desired that all of her children have the same name so as to prevent confusion and embarrassment; thus, the child was named Miller. Overton, 207 Mont. at 293, 674 P.2d at 1090. The father subsequently brought an action to have the surname changed to Overton and to clarify his visitation rights. The district court ordered that the child’s name be *330changed to her father’s surname, Overton. Overton, 207 Mont. at 294, 674 P.2d at 1090. On appeal, we cited Firman for the “best interest of the child” test and concluded that the district court had correctly applied that test without suggesting that the father had any preference or natural right to have his daughter bear his surname. Overton, 207 Mont. at 295-96, 674 P.2d at 1091.

¶9 Our most recent decision on point is Matter of Iverson (1990), 241 Mont. 140, 786 P.2d 1. In Matter of Iverson, an unwed mother petitioned to change her child’s surname from that of his acknowledged father, Iverson, who had reneged on a promise to marry her. Iverson contended that he had attempted to maintain contact with the child after his break up with the mother, but that she thwarted any such attempts. He also maintained that he had continually paid child support. Matter of Iverson, 241 Mont. at 142, 786 P.2d at 2. The district court considered the evidence, some of which was conflicting, and determined that the proposed name change would not be in the child’s best interest in light of the fact that Iverson had acknowledged paternity, paid child support, and sought a court order granting him visitation rights. Matter of Iverson, 241 Mont. at 143, 786 P.2d at 2.

¶10 On appeal we stated that, “[rjeview of a district court’s ruling in these matters is very narrow. A lower court’s decision regarding the best interest of the child will not be overturned on appeal unless there is a clear abuse of discretion.” Matter of Iverson, 241 Mont. at 141, 786 P.2d at 2. Citing Overton, we reiterated that we will not substitute our judgment for that of the trier of fact, that findings will not be overturned unless there is a clear preponderance of the evidence against them, and that we will view the evidence in a light most favorable to the prevailing party. Matter of Iverson, 241 Mont. at 141-42, 786 P.2d at 2 (citation omitted).

¶11 Applying the above principles, we determined that there was substantial evidence to support the court’s conclusion and that the district court did not clearly abuse its discretion. Matter of Iverson, 241 Mont. at 143, 786 P.2d at 2. Justice Barz dissented, contending that the district court abused its discretion in determining that the father’s acknowledgment of paternity, payment of support and his efforts at visitation somehow outweighed the fact that the mother acknowledged maternity, assumed day to day care of the child and, more likely than not, paid more support than the father. She suggested that without specific guidelines “the traditional preference for the father’s name will continue and a subtle form of discrimination against *331women will prevail.” Matter of Iverson, 241 Mont. at 144, 786 P.2d at 4 (Barz, J., dissenting).

¶12 Considering the results in Firman, Overton and Matter of Iverson (in each case the father prevailed regardless of whether he was the challenger or defender of the given surname), Justice Barz’s concern about the subtle “preference” for the father’s surname appears justified. The present case is the first appeal to reach this Court in which the District Court has upheld use of the mother’s surname. In doing so, the District Court focused on the best interests of the child rather than the parents. The court observed that the child has carried the name of his mother for the first year and one-half of his life; that he was baptized in the name of Olszewski; that the mother will be the primary care-giver; that the mother and half-sister have that same last name; and that the mother represented that she would not change her last name even in the event of remarriage.

¶13 We conclude that the District Court correctly applied the “best interests of the child” standard in a nonsexist, nonpaternalistic manner, focusing on the concerns of the child as opposed to a concern with the wishes of either parent; and in particular, whether the father’s surname of Workman will be carried on into future generations. The District Court did not abuse its discretion in determining that it is in the best interests of the child to carry the mother’s surname of “Olszewski.”

¶14 Affirmed.

JUSTICES HUNT, REGNIER and TRIEWEILER concur.