No. 89-519
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990
IN THE MATTER OF THE PETITION FOR CHANGE
OF NAME OF:
JAMES JOSEPH IVERSON, a Minor Child,
KARON LYNN HEPP,
Petitioner and Appel-lant,
and
RONALD EDWARD IVERSON,
Respondent and Respondent.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Joel Roth, Judqe presiding.
COUNSEL OF RECORD:
For Appellant:
James D. Elshoff, Great Falls, Montana
For Respondent:
E. Lee LeVeque; Conklin, Nybo, LeVeque & Murphy, Great
Falls, Montana
Submitted on Briefs: Dec. 7, 1989
Decided: January 24, 1990
Filed:
Mr. Justice R. C. McDonough delivered the Opinion of the Court.
Karon Lynn Hepp filed a petition for name change of James
Joseph Iverson, a minor child, on May 5, 1989. A hearing on the
matter was held and on August 7, 1989, the District Court for the
Eighth Judicial District, Cascade County, dismissed the petition.
We affirm.
The sole issue on appeal is:
Whether the District Court abused its discretion when it
denied Karon Heppls petition for change of name.
On May 26, 1988, Karon Hepp (Karon) gave birth to James Joseph
Iverson (J.I.) . The natural father of J.I. is Ronald Iverson
(Ronald). Although Karon and Ronald were not married at the time
of J. I. birth, both acknowledge that Ronald is the biological
father and this fact is recorded on J.1.l~birth certificate.
According to Karon, following the birth of J.I., Ronald
promised to marry her. As a result of this promise, Karon gave
J.I. Ronaldt surname.
s J. I. s first and middle names were taken
from his two grandfathers. Eventually the engagement fell through
and because Karon felt that Ronald had not paid adequate attention
to J.I. , she filed a petition to change J. I. s name to Joseph Scott
HePP
In compliance with Montana law, Ronald was served and
interested parties were notified through publication with a local
newspaper. A trial was held on August 7, 1989, and the District
Court found that changing J.I. Is name was not in his best interest.
~ccordingly,the petition was dismissed. This appeal followed.
A change of name proceeding is statutory and is governed by
§ 27-31-101, MCA, et seq. Unfortunately, these statutes do not
set forth with any specificity the acceptable reasons for allowing
the change of name of a person. However, in two recent decisions,
we have held, that in contested cases when one parent seeks to
change his or her child's name, the court shall determine whether
the best interest of the child will be served. If the petitioner
in such cases fails to make such a showing, it is proper for the
district court to dismiss the petition. In re Marriage of Firman
(1980), 187 Mont. 465, 610 P.2d 178; In re Marriage of Overton
(1983), 207 Mont. 292, 674 P.2d 1089.
Review 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. Allen v. Allen (1978), 175 Mont. 527, 575
P.2d 74. In Overton, we said:
"We will not substitute our judgment for that
of the trier of fact, but rather will only
consider whether substantial credible evidence
supports the findings and conclusions. These
findings will not be overturned by this Court
unless there is a clear preponderance of the
evidence against them. We will view the
evidence in a light most favorable to the
prevailing party, recognizing that substantial
evidence may be weak or conflicting with other
evidence, yet still support the findings.'I
(citations omitted.) 674 P.2d at 1090.
In light of these policies, we must review the decision of the
~istrictCourt in a light most favorable to Ronald. If there is
not a clear showing of abuse of discretion, the judgment of the
District Court must stand.
The lower court held that Karontsreasons for changing J.I.'s
name were not persuasive and were not in the best interests of the
child. It based this conclusion upon substantial, albeit conflict-
ing evidence.
Karon maintains that she gave J.I. Ronald's surname because
of his promise to marry her. She argues that this promise was
breached, and that therefore she should be allowed to change the
child's surname to her own. She further argues that Ronald has not
kept in contact with J.I. According to her petition, Ronald has
not visited with J.I. since October of 1988. Accordingly, he has
not contributed to the daily care and upbringing of the child.
The evidence presented by Ronald, however, tends to rebut
Karonts contentions. Ronald acted pro se throughout the lower
court proceeding. He did not therefore file any memoranda or
petitions. However, he did testify upon his own behalf at the
lower court hearing. His testimony revealed that he had in fact
attempted to maintain contact with J.I. since his break up with
Karon. He testified that he had attempted to call Karon on
numerous occasions in order to visit with his child, that each time
he called, she hung up on him. He also stated that he has spoken
with E. Lee LeVeque, a local attorney, in an attempt to gain
visitation rights. Further, it is uncontested that he has con-
tinually paid child support. At this point he is paying $100.00
a month to the Department of Revenue, who passes the money on to
Karon. Before J.I. was born, Ronald paid $1,007.60 directly to
Karon for pregnancy and other child rearing expenditures.
The District Court took all of this evidence into considera-
tion and determined that the proposed name change would not be in
J.1.l~ best interest We note that most of this evidence is
uncontradicted. Perhaps the only point of disagreement between
Ronald and Karon is the extent of his visitation with J.I. Karon
maintains that he has not maintained contact with the child;
however, as we stated earlier, Ronald argues that he has attempted
to remain in contact, but his efforts have been thwarted. The
District Court viewed the testimony of both parties and the parties
themselves. Based upon its perceptions of this testimony, it held
that J.1.l~ name should not be changed. There is substantial
evidence to support this conclusion and it is not arbitrary or
capricious.
Karon desired to change J.I. Is name in a manner which would
not only dispense with the child's paternal surname, but also with
his paternal grandfather's first name. The lower court found such
a result is not warranted in light of the facts that Ronald has
acknowledged paternity, is paying child support and is seeking a
court order granting him visitation rights. The lower court did
not clearly abuse its discretion and we must therefore affirm.
Justice
We Concur: I
~hierfJustice
Justices
Justice Diane G. Barz, dissenting.
I dissent. The majority has determined that the District
Court did not abuse its discretion when it determined that the best
interest of the child was to retain his father's surname. I agree
that the proper test to be applied in this case is what is in the
best interest of the child, however, I maintain that the District
Court abused its discretion when applying this test.
In this case, the District Court cited the father's
acknowledgement of paternity, his payment of $100 per month in
child support, and his purported plans to seek a court order
granting him visitation rights with the child as the basis for
dismissing the petition and determining that it was not in the
child's best interest to change his name. These three factors,
however, do not even touch upon the child's best interest.
Instead, these factors merely reinforce traditional notions
regarding the "proper1'surname for a child. When viewed from a
different perspective, these three factors could also be used to
justify changing the child's surname to that of the mother's, as
the mother has acknowledged maternity, she more than likely pays
over $100 per month in supporting the child, and she has assumed
the day to day responsibility and care for the child.
This Court has only had the opportunity to address this issue
in two other instances. See, In re Marriage of Overton (1983), 207
Mont. 292, 674 P.2d 1089; In re Marriage of Firman (1980), 187
Mont. 465, 610 P.2d 178. These type of cases, however, are likely
to arise with more frequency as people, and women in particular,
6
question this society's customs and traditions regarding surnames.
This Court should therefore set forth clear guidelines that a
district court could use when confronted with a petition to change
a child's surname. These guidelines should naturally be based on
the child's best interest and not the best interest of the mother
or the father of the child.
Other jurisdictions have touched upon this subject and have
set forth factors that a court should consider in determining a
child's best interest when confronted with a petition to change
the child's name. Included among these factors are the child's
preference, if any, the length of time the child has had the
surname, the impact of the requested name change on both the
mother-child and the father-child relationships, and any misconduct
by either parent that would make that parent's surname "possibly
deleterious. See, Hamman v. County Court, Jefferson County (Colo.
1988), 753 P.2d 743, 749. Other factors cited include the child's
age, the child's embarrassment or discomfort when bearing a surname
other than the family the child is presently living with, and the
effect a surname may have on easing relations with a new family.
In re Marriage of Schiffman (Cal. 1980), 620 P.2d 579, 583. In
addition, I would also include consideration of whether the child
has any siblings, the child's relationship to those siblings, and
the impact on the child of having surnames different from the
siblings1 surnames. These factors address more directly a child's
best interest when confronted with a name change than the father's
magnanimous acknowledgement of paternity, his ability to follow a
court order of paying $100 per month to help support the child, and
his plans to seek visitation rights with the child.
This.Courtlspast decisions on these type of cases also
clearly demonstrate that guidelines are needed for the district
courts, otherwise, the traditional preference forthe father's name
will continue and a subtle form of discrimination against women
will prevail. In particular, in Overton the mother and father were
divorced when the mother was five months pregnant. Upon the
child's birth, the mother gave the child her surname. This Court
noted that she had two other children with her surname and desired
to have all her children bear the same name so as to prevent
confusion and embarrassment. Two years after the child's birth,
the father petitioned to have the child's surname changed to his
and to clarify his visitation rights. The facts state that the
father sought the child's birth certificate from the county clerk
and recorder's office so as to enroll her in the Indian tribal
rolls, but the facts do not indicate that changing the child's
surname was necessary for enrollment. Overton, 207 Mont. at 293-
94, 674 P.2d at 1090. The decision also does not state the factors
that the district court relied upon when determining that the best
interest of the child was to have her surname changed to that of
the father's. Instead, this Court merely held that the findings
and conclusions regarding the name change was not clearly erroneous
and that sufficient evidence supported the findings. Overton, 207
Mont. at 296, 674 P.2d at 1091. While this Court in Overton stated
that the equality of sexes was not an issue, the absence of
guidelines for the district courts in these type of situations
allows for a subtle form of discrimination to occur by granting a
preference for the father's name.
In Firman, this Court expressed a prevailing attitude when it
held that the district court "should not permit an unnatural
barrier to come between [the father] and [his] children." Firman,
187 Mont. at 470, 610 P.2d at 181 (emphasis added). The use of
the words "unnatural barrier" are in themselves language that
suggests a preference for the father's name. A New Jersey court
in In re Rossell (N.J.Super. 1984), 481 A.2d 602, artfully stated
that
[tlhe emergence of women as equals of men in
our society may be our most significant
revolution. The acceptance of that emergence
is grudgingly slow; it is an acceptance which
the courts must not impede. Names, as this
case clearly illustrates, are intimately
involved with the status of women. Rules of
law for changing names cannot be premised upon
unacceptable theories of inequality. The
right of a mother to have the child bear her
name must be recognized as equal to that of
the father.
481 A.2d at 605. While the courts are not outwardly and perhaps
not even knowingly contributing to this subtle form of
discrimination against women, the fact remains that the absence of
guidelines in these type of cases only act to impede women's
status in society. In Romeo and Juliet, Shakespeare wrote,
What's in a name? That which we call a rose
By any other name would smell as sweet.
(11, ii, 43.)
However, Romeo's and Juliet's fateful outcome attest to the
problems that arise as a result of a system based on customs and
traditions attached to surnames. I would therefore reverse and
remand this case to the District Court to assess whether the
child's name should be changed in light of the factors suggested
in this dissent.
ustice \