Mrs. Charlie Nixon Tolbert sued her husband, F. L. Tolbert, Jr., for divorce and alimony and for custody of their minor children, Angela and F. L. Tolbert, III. A separation agreement was made between the parties, whereby provisions were made for the husband’s payment of alimony and support of his children; and with a further agreement that the names of the children would not be changed except upon the written consent of the husband and father, F. L. Tolbert, Jr. This agreement was made the judgment of the court at the time the divorce decree was entered.
Subsequently, Mrs. Tolbert married Dr. Charles Finney. The two children, by Austin E. Nixon, as next friend, brought actions to have their names changed from Tolbert to Finney, the name of their stepfather. Fred is 15 years of age, and Angela is 11 years of age. The petition alleged various reasons for desiring a change of name, including the avoiding of awkward situations brought on because their mother and stepfather and stepsisters all have the last name of Finney.
The natural father filed objections, and contended that the effort to change their names was a violation of the divorce, alimony and custody agreement and decree, which required him to support his children, with a corresponding requirement that the names of the children would not be changed without his written consent, and which agreement also gave to the natural father the right to declare said children as his dependents.
A hearing was conducted; judgment was rendered *389adverse to the natural father, and he appeals.
Instead of bringing to this court the evidence which was introduced at the hearing, a stipulation of facts for the purposes of appeal was entered and it has been transmitted to this court. The stipulation gives the names and ages of the children, the fact of the first marriage and that the children are the issue of said marriage; the fact of divorce and alimony and custody agreement and decree, which provided the names of the children would not be changed without the written consent of the natural father; the fact of the subsequent marriage by Mrs. Tolbert to Dr. Charles Finney, that the children are in custody of the mother, and that there have been no violations of the divorce, alimony and custody decree; ". . . and that decree still governs the relationship of the petitioners to their natural father, Fred L. Tolbert, Jr., and with their mother, Charlie Nixon Finney” (emphasis supplied); and that the children by next friend had petitioned for a change of name to that of their stepfather, to which petition the natural father had filed his objections, including the objection that same was in violation of the divorce settlement agreement under which custody was awarded to the mother, and further that the name change was not in the best interest of the children. It was recited that both matters came on for hearing in chambers in Americus, Georgia, on December 28,1972, and after hearing evidence, the court, on March 29, 1973, entered an order in the case granting the requested name change; and the natural father has filed his notice of appeal.
As the parties elected to submit this case to this court on a stipulation of facts instead of having the transcript of the evidence brought up, we are governed by the stipulation and cannot go beyond it. Said stipulation does not set forth any evidence that was introduced to support the petitioner’s contention that a change of name would be in the best interest of the minor children, nor does it even contend that any such evidence was introduced. Therefore, it is not shown that a change of name would be for the best interest of the minor children.
The stipulation did show that custody was granted *390to the mother, by agreement, and as a part and parcel of that agreement, she promised that no change of name of the children would be made without the father’s written consent. Having thus agreed, what did she do to live up to her agreement in this respect? The record is silent as to anything whatever that Mrs. Finney did to keep her agreement. She, as the mother and custodian of the children, naturally had great influence with them. The stipulation shows that the father had lived up to the agreement and decree. Did she ever seek in any way to dissuade these young children from violating the agreement and decree? The record "sayeth not.”
As these children were his dependents, in filing income tax returns, what complications would be involved when he showed his children with a name different than his? If the mother departed this life, the children would be returned to his custody (see Bridgman v. Elders, 213 Ga. 257 (1) (98 SE2d 547); Baynes v. Cowart, 209 Ga. 376 (72 SE2d 716)), but with a name other than his. What evidence did the petitioners introduce to show that despite these factors, it would still be to the best interest of the children to change their name? Absolutely none, so far as the record discloses.
The petitioner had the burden of proof. Code § 38-103. This could be carried only by the introduction of evidence. Code § 38-104. Boyd v. Hill, 94 Ga. App. 686, 687 (96 SE2d 222). The stipulation of facts shows no evidence was introduced to prove that a change of name would be to the best interest of the welfare of these minor children.
Ordinarily it would be presumed that the judgment of the trial court was supported by every fact essential to make it valid and binding. Miller v. Parks, 124 Ga. App. 4 (1) (183 SE2d 88). But here we are controlled by the stipulation, to which both parties agreed, and upon which they have submitted the case to this court.
The present case is clearly distinguishable from Pichulik v. Simpson, 123 Ga. App. 604 (181 SE2d 925), for in that case it was shown that evidence was introduced before the trial judge, and merely that no transcript of same was brought to the appellate court, and of course, the presumption favoring judgments would prevail. It is *391also readily distinguishable from Undercofler v. Foote & Davies, 115 Ga. App. 341 (154 SE2d 454), for in that case there was a stipulation of facts before the trial judge tantamount to evidence as to the factual situation. In the cases of Stamps Tire Co. v. Hartford Acc. &c. Co., 115 Ga. App. 326 (154 SE2d 656); and Hudgins v. Pure Oil Co., 115 Ga. App. 543 (154 SE2d 768), there were simply no transcripts of the evidence, although it was shown that evidence was introduced in the lower court. Of course, the presumption in favor of judgments was properly applied by this court in each of these cases.
Argued September 13, 1973 Decided March 14, 1974 Rehearing denied March 28, 1974. Langstaff, Campbell & Plowden, Robert B. Lang-staff, for appellant. Smith & Jones, William E. Smith, for appellees.But in the instant case, there was not simply a failure to bring a transcript of the evidence to this court, but a joint stipulation was entered into in the lower court, as to the facts that were placed before the trial judge, and that stipulation absolutely fails to disclose any fact in favor of a change of name for the two minors; and the usual presumption of favor of judgments cannot be applied.
Judgment reversed.
Pannell, Quillian and Stolz, JJ., concur. Deen J., concurs specially. Hall, P. J., concurs in the judgment. Bell, C. J., Eberhardt, P. J., and Clark, J., dissent.