concurring-.
I concur with the Court’s opinion. I would add, however, that there is ample authority to support the Court’s determination that a woman whose marriage has been dissolved by divorce or annulment should have an absolute right, absent fraudulent intent, to resume a former name or adopt a new name regardless of whether there are living issue from the marriage.
The common-law rule was that a person could change his or her name without legal proceedings provided there was no fraudulent purpose in doing so. When a woman married, she acquired her husband’s surname by repute, the change of name being in fact, rather than in law, a consequence of the marriage. Stuart v. Board of Supervisors, 266 Md. 440, 295 A.2d 223 (1972). In Petition of Hauptly, 312 N.E.2d 857 (Ind. 1974), the court interpreted the Indiana statutory name change procedure. It found no requirement that any person go through the courts to establish a legal change of name. The statutory procedure simply provided for an orderly record of name changes to avoid future confusion. The court stated, “The only duty of the trial court upon the filing of such a petition is to determine that there is no fraudulent intent involved. Once having so found, we hold that it is an abuse of discretion to deny any application for a change of name under the statute [IC 34-4-6-1, Burns’ Ind. Stat. Ann., 1972 Supp., §3-801].” 312 N.E.2d at 860.
*430I believe this analysis is applicable in interpreting W. Va. Code, 48-5-1 through -3, and that a trial court’s discretion to proscribe a legal name change should be construed narrowly. See, Kruzel v. Podell, 266 N.W.2d 458, 67 A.L.R.3d 1249 (Wis. 1975); Custer v. Bonadies, 30 Conn-.Supp. 385, 318 A.2d 639 (1974); State ex rel. Krupa v. Green, 114 Ohio App. 497, 177 N.E.2d 616 (1961). See generally, Annot., 67 A.L.R.3d 1266 (1975).
Furthermore, it is my opinion that W. Va. Code, 48-2-23, violates the equal protection clause of the Fourteenth Amendment to the United States Constitution by arbitrarily and unreasonably precluding divorced women with children from restoring their maiden names or surnames from a previous marriage, but allowing married women without issue from the dissolved marriage to do so.
Finally, I believe the Court’s opinion is unduly myopic in its descriptive analysis of “the way things are” vis-a-vis a father’s protectible interest in having his child perpetuate his family name. I believe it is indeed fanciful to presume that, when a marriage is dissolved, payment of child support, exercise of visitation rights by a father without custody, and a concern for the child supplies the quid pro quo of this so-called protectible interest in securing the paternal surname.
It is a strained and superannuated perception of contemporary social reality which presumes that children’s best interests are served by welding paternal surnames to them upon a superficial showing that their fathers have discharged their minimal legal and social obligations to them. I can readily envisage a situation where a child resides with the mother, and the mother’s efforts contribute in major part to the quality of his or her life over and above the provision of necessities both financial and emotional. The probability is more than theoretical that in many instances the maternal surname would best ensure the community presumption of honor, integrity and fair dealing which the majority opinion notes is a valuable asset to a child. I do not believe, nor does the *431law dictate, that what is customary is synonymous with what is best.
A more reasonable and equitable approach in petitions to change minors’ surnames would be to ascertain their best interests by weighing the contributions by both parents that promote the children’s health and well-being, including the degree of beneficial . community standing derived from either the maternal or paternal surname, if any.
It may be said that such an attitude is emasculating to male ego. But in my opinion the right of a woman to participate equally with a man in determining the label of their bloodline when the nuptial knot is undone should not, if a man is half a man, diminish his investment in effort toward his children’s lives. I doubt the exclusivity of the qualities of character building, love and pride ascribed to and supposed to spring from the paternal prerogative.
My brother Miller joins in this opinion.