Rowland v. Shurbutt

JUSTICE COMPTON

delivered the opinion of the Court.

This is the appeal of an order granting a natural father’s petition to change the surname of his minor child. The central issue is whether the evidence is sufficient to support the trial court’s ruling.

The facts, considered during a March 1998 hearing, are not disputed. The only testimonial evidence presented was the deposition of a psychiatrist, who had been employed by the father.

The child, a male, was bom in Norfolk on September 3, 1991. His mother, residing in Chesapeake, is appellant Linda Grant Rowland. His father, residing in Virginia Beach, is appellee Edward David Shurbutt.

*307When the child was conceived, the mother was not married to the father and was separated from her spouse. When the child was bom, the mother and her husband had reconciled and the child was given the surname “Rowland,” a name he still carries.

Since birth, the child has been in the physical custody of his mother. Court orders provide, however, that both parents have “joint legal custody” of the child. The parents have been litigating issues concerning child custody, child support, and visitation most of the child’s life.

In March 1998, the father filed duplicate petitions in the court below to change his child’s surname to “Shurbutt.” The father asserted that he desired to change the name in order “to prevent confusion and difficulty in the transaction of the minor child’s lawful affairs” and that the name change would be in the child’s best interest. The mother objected to the proposed change.

Following the hearing, the trial court concluded that the child’s best interest would be served by granting the father’s petition. In a February 1999 order, from which we awarded the mother this appeal, the court ruled that the child’s name be changed as requested, finding that “good cause was shown for this action.” The court also ruled, however, that the child’s name remain unchanged pending appeal.

On appeal, the mother contends that the trial court erred in ordering the name change because the evidence was insufficient to support the order. The father, while contending the evidence was sufficient to support the order, also argues that this Court is without jurisdiction to consider the appeal.

We shall address the jurisdictional question first. Although not argued orally, the father contends on brief that the Court of Appeals of Virginia, not this Court, has jurisdiction of this appeal. He points out that Code § 17.1-405(3)(e) provides that appeals of circuit court orders relating to the “control or disposition of a child” must be made to the Court of Appeals. This is such a proceeding, he says, and the appeal should be dismissed. We do not agree.

Ordinarily, a proceeding under the change-of-name statute, Code § 8.01-217, is an independent civil action. But see Code § 20-121.4 (permitting divorce court to restore party’s former name as part of final decree of divorce from bond of matrimony). Although the present matter, brought as a separate proceeding detached from any custody or support litigation, obviously relates to a child, it does not involve the “control or disposition of a child,” within the meaning of Code § 17.1-405(3)(e).

*308An order in an independent civil action changing a name, including that of a child, is “a final judgment” in a “civil case,” within the meaning of Code § 8.01-670(A)(3), which provides for appeal of such an order to this Court. Thus, we properly have taken jurisdiction in this matter.

We shall now turn to the central issue, that is, whether the evidence was sufficient to support the name change.

As pertinent to this proceeding, Code § 8.01-217 provides that any person desiring to change his child’s name may apply to the appropriate circuit court, “which shall consider such application if it finds that good cause exists therefor under the circumstances alleged.” The statute further provides that when both of the child’s parents are living and when the parent who does not join in the application objects to the proposed change, “a hearing shall be held to determine whether the change of name is in the best interest of the minor.” The statute further provides that unless the court finds that the change of a minor’s name “is not in the best interest of the minor,” the court shall “order a change of name.”

We have interpreted these statutory provisions to mean that the burden is upon the petitioning parent, under the circumstances of this case, to prove by satisfactory evidence that the change is in the child’s best interest. Beyah v. Shelton, 231 Va. 432, 434, 344 S.E.2d 909, 911 (1986); Flowers v. Cain, 218 Va. 234, 237, 237 S.E.2d 111, 113 (1977).

As we examine the facts, it must be remembered that because the evidence before the trial court on the subject of the child’s best interest was in the form of a deposition, and the court did not see and hear the witness, the court’s finding of fact, while highly persuasive and entitled to great weight, is not binding on us. Johnson v. Insurance Co. of N. Am., 232 Va. 340, 345, 350 S.E.2d 616, 619 (1986); Kaplan v. Copeland, 183 Va. 589, 593, 32 S.E.2d 678, 679 (1945).

A prolonged recitation of the psychiatrist’s testimony, submitted by the father, is unnecessary. Prior to the March 1998 deposition, the physician had seen the child on three occasions, the father on eight occasions, and the father’s present wife once. He had “never met” the mother or her husband. Additionally, the doctor had reviewed a “Social Services report” resulting from a “home study” that mainly dealt with the issues of custody and visitation.

When asked his opinion upon whether a change of name “would be in the child’s best interest and what do you base your opinion on,” the psychiatrist stated that he felt two issues were presented. *309First, a child “should be able to carry the name of both his parents.” The “second issue,” he said, relates to the father’s role in the child’s development.

The witness noted that the father “has been extensively involved with the child . . . being very much involved in his care and his education and . . . also has been a very good provider. He’s accepted whatever economic responsibilities are there.” Therefore, the doctor opined, “it should be very simple that [the child] should carry the names of the parents that are biologically his parents.”

The witness was asked whether it would be “harmful” to change the child’s name in view of the fact that he had carried the name Rowland for more than six years. The doctor responded that it would not be a “problem” for the child, but that the “problem is going to be with the adults trying to accept whatever decision is made.”

The witness said the child “has been able to merge very well with both sets of parents,” noting that the child “has no difficulty dealing with” living in the primary custody of his mother and having regular visitation with the father. Noting that the mother and father “are very good parents,” the doctor stated that the child is “probably the best balance[d]” of all the parties involved.

According to the witness, the child is a “very healthy kid”; he is “progressing normally,” “interacting appropriately,” and “maturing” both “[s]choolwise” and “socialwise.”

Finally, the witness said that he did not “care” if the child’s surname was “hyphenated,” but that the father “has the right” for the child to carry his “last name.”

We hold that the psychiatrist’s testimony, and the record as a whole, fails to establish by satisfactory evidence that the change of name is in the child’s best interest. The psychiatrist’s opinions, which either were nonresponsive to the issue or were contradictory, focused mainly on the father’s “rights,” only tangentially addressing the child’s interests. Actually, the testimony supports the view that the child’s best interest will be served if his name remains unchanged. With his present name, he is healthy, happy, developing normally in school and socially, and is the best balanced of all the parties.

Consequently, we conclude that the trial court abused its discretion in granting the name change. Thus, the order below will be reversed and the father’s several petitions will be dismissed.

Reversed and dismissed.