#24093-r-RWS
2007 SD 83
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
* * * *
IN THE MATTER OF THE CHANGE OF
NAME OF L.M.G.,
A Minor Child.
* * * *
APPEAL FROM THE CIRCUIT COURT OF
THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA
* * * *
HONORABLE STUART L. TIEDE
Judge
* * * *
DEBRA M. VOIGT
Voigt Law Office, PC
Sioux Falls, South Dakota Attorney for appellant
Mother.
MARY ANN GIEBINK
Galland Law Firm, PC
Sioux Falls, South Dakota Attorney for appellee
Father.
* * * *
CONSIDERED ON BRIEFS
ON JANUARY 8, 2007
REASSIGNED MARCH 13, 2007
OPINION FILED 08/08/07
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SABERS, Justice (on reassignment).
[¶1.] We determine whether a trial court abused its discretion in ordering
the name change of L.M.G. from W.G.’s (Mother) married name to R.P.’s (Father)
surname. L.M.G. was conceived during an affair between Mother and Father.
Mother was married at the time and eventually reconciled with her husband.
Mother listed her husband’s surname on daughter’s birth certificate. Father
subsequently petitioned to change daughter’s surname to his own. After the trial
court ordered L.M.G.’s surname name to be changed to Father’s surname, Mother
appealed. We reverse.
FACTS
[¶2.] In 2003, L.M.G. was conceived during an affair between her mother of
Sioux Falls, South Dakota and her father of Worthington, Minnesota, after Father
responded to Mother’s personal ad on an internet site. Although Mother’s internet
profile indicated that she was “single,” she was actually married to C.G. (Husband)
but the couple had no children at the time. 1 Father and Mother had a relationship
for approximately seven months with Mother staying overnight at Father’s house
three or four nights per week.
[¶3.] Father testified at trial that he did not discover that Mother was
married until shortly after the child was conceived. Although Mother told Father
she had been in a bad marriage for five years and wanted out, she felt her religious
1. Mother and Husband now have a child together. She is within two years of
L.M.G.
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beliefs would not allow her to leave her husband. In January of 2004, Mother
informed Father that she had decided to reconcile with Husband.
[¶4.] L.M.G. was born on March 12, 2004. Mother put her husband’s
surname, which is her own surname, on the child’s birth certificate. Subsequently,
both Father and Husband agreed to paternity testing, which verified that Father
was the biological father of the child. Father then sought visitation, which was
granted. Initially, Father was allowed to visit L.M.G. for two hours three times a
week with a three-hour visit on Sundays. When the child was six months old,
Father’s visitation increased to three hours three times a week and four hours on
Sunday. Father would drive to Sioux Falls, South Dakota from Worthington,
Minnesota on the weekdays for visitation and Mother would meet him halfway on
Sundays.
[¶5.] In August 2005, Father filed a petition to change his daughter’s
surname to his, which Mother challenged. During this time, Mother and Husband
had a child together. 2 At the January 2006 hearing, the only evidence regarding
which name was in the best interest of the child came from the testimony of Father
and Mother. No one else testified. Based on their testimony, the trial court
2. Mother testified at the hearing:
[L.M.G.] now has a younger sister. We just had a child two
months ago and they are within two years of each other, which
means they will be close together in school. They’ll be involved
in activities together and I feel it would alienate [L.M.G.] to
have a different last name than her younger sibling, as well as
any future siblings she may have, as well as a different last
name than myself and her stepfather when she lives within a
cohesive family.
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concluded that it was in the best interest of the child to change her surname to that
of her biological father. The trial court also awarded Father joint legal custody.
Mother appeals and raises the following issue:
Whether the trial court erred in changing the name of L.M.G.
STANDARD OF REVIEW
[¶6.] In cases where we review a lower court’s decision based on the best
interest of the child, the “[t]rial court[ ] possess[es] broad discretion in deciding the
best interests of a child; [its] decision will only be disturbed upon a finding of abuse
of discretion.” People ex rel. C.G., 2003 SD 78, ¶12, 667 NW2d 279, 282. “An abuse
of discretion occurs when ‘discretion [is] exercised to an end or purpose not justified
by, and clearly against, reason and evidence.’” Miller v. Jacobsen, 2006 SD 33, ¶18,
714 NW2d 69, 76 (additional citations omitted).
[¶7.] The issue of what surname a child should use is guided by a
determination of what is in the best interest of the child. Block v. Bartelt, 1998 SD
65, ¶11, 580 NW2d 152, 154. In a name change, what is in the best interest of the
child involves several factors. Id.; see also Blase v. Brewer, 2005 SD 7, ¶13, 692
NW2d 785, 788. These factors include, but are not limited to:
(1) misconduct by one of the parents; (2) failure to support
the child; (3) failure to maintain contact with the child; (4)
the length of time the surname has been used; (5)
whether the surname is different from that of the
custodial parent. Cohee [v Cohee, 210 Neb 855] 317
NW2d [381] at 384 [(1982)]. The court may also consider
whether a particular name will contribute “to the
estrangement of the child from a non-custodial parent
who wishes to foster and preserve the parental
relationship.” In re Marriage of Nguyen, 684 P2d 258,
260 (ColoCtApp 1983), cert. denied, 469 US 1108, 105 SCt
785, 83 LEd2d 779 (1985).
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Block, 1998 SD 65, ¶11, 580 NW2d at 154. 3 A mother gets no advantage from the
unilateral act of naming a child at birth, nor does the father obtain an advantage
from the custom of giving a child the father’s surname. Id.
[¶8.] The trial court made the following findings of facts:
1. That the court has determined that the Petitioner and
Respondent committed adultery, which resulted in the birth
of the child pertaining to this matter.
2. That the court has determined that the Petitioner has
supported the child since shortly after her birth.
3. That the Petitioner sought to establish his rights as a father
and to obtain contact and maintain contact with the child
shortly after her birth.
4. The child is approximately 20 months old and has had the
same surname since her birth.
5. At this point, the child has the same surname as the
Respondent/custodial parent, but this surname is also the
surname of the stepfather, and not the surname of the
biological father of the child.
6. That the Petitioner has shown to the court that he wishes to
foster and preserve the parental relationship and that
permitting the child to retain the surname of the stepfather
will contribute to the estrangement of the child from
Petitioner.
3. We adopted these factors from the Nebraska case of Cohee. 317 NW2d at
384. The Nebraska Appellate Court has since noted additional factors to
consider. They are: “(6) a child’s reasonable preference for one of the
surnames; . . . (8) the degree of community respect associated with the child’s
present surname and the proposed surname; (9) the difficulties, harassment,
or embarrassment that the child may experience from bearing the present or
proposed surname; and (10) the identification of the child as a part of a
family unit.” Minnig v. Nelson, 613 NW2d 24, 27 (NebCtApp 2000). The
court further recognized as an important factor “the possibility that a
different surname may cause insecurity or a lack of identity . . . .” Id.
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[¶9.] Mother argues that the judge abused his discretion because most of the
findings of fact are neutral and the findings that favor Father are clearly erroneous.
She specifically disputes the finding that using her husband’s last name would
contribute to the estrangement of the child from the child’s father. We agree that
the decision to change L.M.G.’s name is an abuse of discretion because the trial
court failed to view this situation from the standpoint of the child’s best interest.
[¶10.] In this case, it is in the child’s best interest to keep the surname she
has had for two years because it is the name of “her family unit.” It is her Mother’s
name, her half-sister’s name, her stepfather’s name and her name.
[¶11.] It makes no sense to change her name after two years to her natural
Father’s name. From the standpoint of her best interest, her name should remain
the same as her family unit because she socializes with them, will go to school with
them and live with them the majority of the time. Why should she be unnecessarily
required to explain why her surname is different from her family unit in all these
circumstances?
[¶12.] In contrast, when she is with her natural father, there would be very
few instances where the question would even come up to require an explanation.
Therefore, when viewed from the child’s standpoint, the trial court abused its
discretion in changing her name.
[¶13.] Although the trial court considered the appropriate factors, it abused
its discretion for the following reasons. First, the trial court placed undue
importance on the supposed instability of Mother and Husband’s marital
relationship. Second, it disregarded the parties’ testimony that the relationship
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between all the parties was improving and emphasized the prior bad aspects of the
parties’ relationship with one another. Third, as indicated, the trial court failed to
consider the potential embarrassment L.M.G. may suffer by having a different
surname than her immediate family unit.
[¶14.] The trial court made several findings of facts in relation to the factors.
The trial court found there was a historically troubled relationship between Mother
and Husband. It voiced concerns that Mother and Husband could divorce and then
L.M.G. would be left with a surname that was not Mother’s. However, this is a
speculative finding and actually could be used in any case where Mother wants to
use her Husband’s name. There is always the possibility of divorce. We could just
as easily speculate that in the event of a divorce, Mother could keep Husband’s
surname and L.M.G. would still have the same name as her Mother. See Block,
1998 SD 65, ¶13, 580 NW2d at 154 (affirming the circuit court’s dismissal of father’s
name change petition where the child’s surname came from the Mother’s second ex-
husband because she used that name for business and the name is shared with her
other sons).
[¶15.] The trial court placed undue influence on the fact that L.M.G.’s current
surname is that of her stepfather. This name is also Mother’s chosen name. The
fact that it could change is speculation and highly irrelevant in the inquiry of the
child’s best interest. Emphasis on the fact it is stepfather’s surname is improper
concern for Father’s interest in replacing stepfather’s name with his own name, and
is not in the child’s best interest.
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[¶16.] Furthermore, the trial court noted that Husband and Mother had
initially resisted Father’s attempts at asserting his parental rights. However, there
was no testimony that the current state of the parties’ relationship was hostile.
Indeed, the opposite testimony was given. Father was getting increasing visitation
and the parties had settled that increase on their own. Father testified the parties
“are improving our relationship all the time.” He also testified that a name change
would not change his and L.M.G.’s relationship and that they have a great
relationship right now. Mother testified the situation was hard at first, but things
have improved. The trial court’s worry about unstable relationship and continued
estrangement between the parties does not conform to the current state of the
evidence.
[¶17.] Finally, the trial court failed to consider “the difficulties, harassment,
or embarrassment the child may experience from the proposed surname” and the
fact L.M.G. will have a different name and be alienated in her family unit. See
Minnig, 613 NW2d at 27 (noting the trial court should consider the difficulties,
harassment, or embarrassment that the child may experience from bearing the
present or proposed surname). L.M.G resides principally with her Mother and she
currently has the same name as her half-sister, Mother and stepfather with whom
she lives the majority of the time. Her half-sister is close to her age and will be
attending school about the same time as L.M.G. It would be in the best interest of
L.M.G. to have the same name as her half-sister and the family she lives with most
of the time. She would not have to explain why her name is different than her half-
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sister if she keeps her current surname. As indicated, while she is with Father, it is
unlikely a different name would even be noticed.
[¶18.] For these reasons, the trial court abused its discretion in ordering
L.M.G.’s name to be changed. We reverse.
[¶19.] GILBERTSON, Chief Justice, and KONENKAMP, Justice, concur.
[¶20.] ZINTER and MEIERHENRY, Justices, dissent.
MEIERHENRY, Justice (dissenting).
[¶21.] I dissent. The question before this Court is whether the trial court
abused its discretion. It is well established that in cases where we review a lower
court’s decision based on the best interests of the child, “[the] trial court[ ]
possess[es] broad discretion in deciding the best interests of a child.” People ex rel.
C.G., 2003 SD 78, ¶12, 667 NW2d 279, 282. We may only overturn the trial judge’s
decision when the record reflects an abuse of discretion, “not merely [a decision]
which might have been made differently if done [ ] as the initial fact finder.”
Iversen v. Wall Bd. of Education, 522 NW2d 188, 193 (SD 1994). Here the trial
court, considering the appropriate factors, decided that it was in the child’s best
interest to have her biological father’s name. Based upon our deferential standard
of review, there is no showing of an abuse of discretion.
[¶22.] The Court effectively retries the case and substitutes its judgment for
that of the trial court. First, the Court rejects the trial court’s finding that using
her stepfather’s last name would contribute to the estrangement of the child from
the child’s father. Clearly there was evidence in the record to support the trial
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court’s finding of possible estrangement. The only witnesses were the father and
the mother with little dispute as to the facts. The mother’s husband did not testify;
nor did Mother dispute the testimony concerning the past strained relationship
between the parties. After noting that the husband did not testify, the judge stated
he was “a little bit concerned about the family relationship there” and made the
following comment:
I believe that [preserving Father’s parental relationship with
L.M.G.] was initially resisted by [Mother], and perhaps her
husband as well, for a number of factors and a number of
reasons. And I think for a period of time there was an effort to
prevent [Father] from asserting his parental rights simply
because of the difficulty of the facts and circumstances in this
case.
Specifically, the judge noted the history of stepfather’s interference with the child’s
relationship with her biological father. Initially, Mother and Husband pushed
Father to give up his parental rights. At one of the scheduled visitations, Father
and Husband engaged in a physical exchange because Husband declared that he
was the child’s father and that would never change. Father’s testimony also
revealed that he had experienced trouble maintaining a relationship with the child
because of the conflict with Mother and Husband. Father testified that he, Mother
and Husband had several disagreements in the past. As a result, Father had to
retrieve L.M.G. at the law enforcement center for visitations. Father testified that
he had not been allowed to develop a relationship with his daughter until a month
before the hearing. Father commented that up until that time, “[L.M.G.] had no
heritage from her biological father. . . . I don’t even think my daughter realized I
was dad and that was very obvious.”
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[¶23.] The Court believes the trial court placed undue importance on the
historical attempt at estrangement because there was evidence that the situation
“was improving.” Deciding what is in the best interest of a child almost always
involves consideration of past actions by the parents. Since a trial judge does not
have a crystal ball to tell the future, he or she is left to decide the best interests of a
child based, in part, upon previous and current actions of the parents. Here there
were only two witnesses, Mother and Father. The judge was in the best position to
observe their demeanor, manner of testifying and credibility and to decide the
weight to give to their testimony. See Edinger v. Edinger, 2006 SD 103, ¶15, 724
NW2d 852, 857 (additional citations omitted). We are not to substitute our opinions
as to the weight and credibility of the evidence. Id. This is inappropriate and
contrary to our established deference to the trial judge.
[¶24.] Likewise, the Court decides that the trial judge did not consider the
child’s “potential embarrassment” of having a different name than her “immediate
family unit.” Although the judge may not have used those particular words, he
obviously considered that the child would have a different surname than her mother
and half-sibling. Notwithstanding, the judge specifically noted that the child had
only used the surname twenty months and that the surname was the stepfather’s
surname, not the biological father’s surname. How much embarrassment that may
cause the child is debatable and not established by the record. With the high
divorce rate and increased numbers of blended families, it is not unusual for a child
to have a different surname than the child’s mother or half-siblings. The trial court
noted that “families are becoming more diverse all the time.” This Court has noted
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that “[t]he traditional ‘Cleaver’ family is becoming less and less common in
contemporary society.” Meldrum v. Novotny, 2002 SD 15, ¶66, 640 NW2d 460, 473
(Amundson, J., concurring specially). The judge considered this factor along with
all the other factors in arriving at his decision, but gave greater weight under the
circumstances to fostering a good father-daughter relationship. The judge was
persuaded that retaining the husband-stepfather’s surname would strain the child’s
relationship with her biological father.
[¶25.] In addition to the concern of interference with the father-daughter
relationship, the trial court was also concerned about the possibility of future
separation of Mother and Husband. The trial court noted as follows:
[T]here is no guarantee that [Mother and Husband] will
maintain a long-term relationship in light of what has
transpired and what may transpire in the future. I think the
last thing we need is for the child to experience having
separation should that occur and then have to deal at that point
with the name change, whether or not she would want to retain
the [husband’s] name or go to the [father’s] name at that point.
Although the parties had recently improved their relationship, the judge had
concerns that their future relationship would involve conflict. This was hardly
speculation considering the parties’ past history and the volatile circumstances
surrounding L.M.G.’s conception. It would be equally speculative to assume that
the parties will suddenly maintain and foster a harmonious relationship. The trial
court recognized the danger of such speculation when it changed L.M.G.’s surname
to reflect her biological father’s name in order to “foster a stronger bond with the
non-custodial parent and preserve the relationship without question.”
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[¶26.] Whether the child’s surname is different from the custodial parent’s
name is only one factor in analyzing what is in the child’s best interest. This
analysis involves assessing the totality of the child’s individual circumstances.
Block v. Bartelt, 1998 SD 65, ¶11, 580 NW2d 152, 154. When the totality of
L.M.G.’s circumstances is considered, the trial court’s decision was not clearly
against reason and evidence. Past visitation problems which had threatened
Father’s relationship with his daughter and future uncertainty as to the viability of
the relationship between Mother and Husband weighed heavily in the court’s
decision. Mother and Husband’s past obstruction of the father-daughter
relationship as well as the instability of Mother’s marriage were certainly valid
considerations in determining the best interest of the child in this case.
[¶27.] We should not try to second guess the judge’s observations or retry the
case or reweigh the factors – that is clearly the trial judge’s job. As the Court cites,
“An abuse of discretion occurs when discretion [is] exercised to an end or purpose
not justified by, and clearly against, reason and evidence.” See Miller v. Jacobsen,
2006 SD 33, ¶18, 714 NW2d 69, 76 (additional citations omitted). Judge Tiede’s
decision was not an abuse of discretion, it was reasonable and justified by the
evidence. I would affirm.
ZINTER, Justice (dissenting).
[¶28.] I join Justice Meierhenry’s dissent. I write to add one additional fact
supporting the trial court’s decision. I also write to explain how this decision,
without so stating, has eliminated our multifactor approach to determining when a
change of name is in the best interests of the child.
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[¶29.] First, although Justice Meierhenry has more than adequately
demonstrated substantial factual support for the trial court’s reasoned decision, one
additional fact should be mentioned. In explaining his reasons for requesting the
name change, Father, who had K-12 licensure, explained that at twenty months of
age a child does not understand heritage and:
That’s why I’m looking for the name change now so [L.M.G.]
understands that as she gets older and there isn’t this aspect of,
well, I was and wasn’t. She really doesn’t know how to spell any
name right now. She can’t write letters, she can’t spell. This is
the perfect time to have a name change; not 15 years later.
[¶30.] Second, today the Court, without acknowledging it, has abandoned the
multifactor approach we have consistently applied for name change cases. See
Block v. Bartelt, 1998 SD 65, 580 NW2d 152 (applying six factors); Blase v. Brewer,
2005 SD 7, 692 NW2d 785 (same); Minnig v. Nelson, 613 NW2d 24, 27 (NebCtApp
2000) (listing four additional factors including the identification of the child as a
part of a “family unit”). See also supra ¶7 n3. It has abandoned the multifactor
approach because, despite the Court’s concession that the trial court did “consider
the appropriate factors,” supra ¶13, the Court reverses on just one 4 factor: the
4. Although the Court makes passing references to the stability of Mother and
Husband’s relationship, see supra ¶¶13-14, the Court dismisses the trial
court’s finding of a troubled relationship on the basis of speculation. Supra
¶14. However, as Justice Meierhenry notes, only Mother and Father
testified, and the trial court was required to make this finding on the only
evidence available: the history of the relationship and Mother’s prediction of
the future. Apparently, this Court is more comfortable speculating that
Mother and Husband’s relationship will endure based on Mother’s prediction,
rather than the historical evidence. In any event, only the trial court heard
these parties testify, and therefore, I would afford the trial court its due
deference on this factual dispute. For the same reason, we should defer to
(continued . . .)
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majority’s adoption of a “family unit” test for determining the child’s best interests.
See supra ¶¶10-13, 17. The Court reverses opining:
[I]t is in the child’s best interest to keep the surname she has
had for two years because it is the name of “her family unit.”. . .
It makes no sense to change her name after two years to her
natural Father’s name. From the standpoint of her best
interest, her name should remain the same as her family unit
because she socializes with them, will go to school with them
and live with them the majority of the time. Why should she be
unnecessarily required to explain why her surname is different
from her family unit in all these circumstances? . . .
It would be in the best interest of L.M.G. to have the same name
as her half-sister and the family she lives with most of the time.
She would not have to explain why her name is different than
her half-sister if she keeps her current surname. 5
Supra ¶¶ 10-11, 17. The Court’s reliance on this sole factor is at odds with our
multifactor approach.
[¶31.] This Court has previously ruled, in a variety of contexts, that no single
factor is determinative in these types of multi-factor approaches. See Great West
Casualty Co. v. Bergeson, 1996 SD 73, ¶6, 550 NW2d 418, 420 (stating that when
determining whether an employment relationship exists “[n]o single factor can be
________________________
(. . . continued)
the trial court on the finding regarding Husband and Mother’s interference
with Father’s attempt to establish a relationship with the child.
5. It is just as valid to question why, when she is with her friends and
acquaintances, should she be “unnecessarily required” to explain why her
surname is not the same as her biological Father who is going to become a
significant part of this child’s life. See supra ¶11. Does this Court really
believe that L.M.G. will not have to explain these facts of life because of the
“family unit” or that the explanations will be different depending upon the
surname she bears? Although the Court reverses because of the “potential
embarrassment” L.M.G. may incur by having a “different” surname, see supra
¶¶13, 17, the unfortunate reality is that the potential for embarrassment will
occur no matter what surname she is given.
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determinative; each case must be decided on its own facts”). Rather, in domestic
relations cases, great emphasis is placed on whether the trial court considered all of
the factors. Arneson v. Arneson, 2003 SD 125, ¶26, 670 NW2d 904, 914 (concluding
trial court did not abuse its discretion when “the court properly considered the
relevant factors in making its custody determination”); Christians v. Christians,
2001 SD 142, ¶19, 637 NW2d 377, 381 (affirming alimony award when findings
supported by the record “show[ed] a consideration of all factors”). Here, the Court
abandons the multifactor approach even after acknowledging that the trial court did
consider all of the factors that are used as a guide in determining a child’s best
interest.
[¶32.] It must finally be noted that the Court contends that the trial court
failed to consider “the difficulties, harassment, or embarrassment the child may
experience from the proposed surname.” See supra ¶17. However, this seventh
factor is derived from Minnig, a Nebraska case that had not been adopted by this
Court at the time of trial. See 613 NW2d at 27. Although today’s Court
incorporates the additional factors set out in Minnig, the trial court cannot be
faulted for failing to consider something that it was not required to consider at the
time of trial. But even more importantly, even if the trial court did fail to address
one factor, that alone does not justify reversal under the multifactor approach when
“the decision [is] balanced and methodical.” See Zepeda v. Zepeda, 2001 SD 101,
¶13, 632 NW2d 48, 53.
[¶33.] For all of the foregoing reasons, I dissent.
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