Acevedo v. Burley

EASTAUGH, Justice, with whom FABE, Justice, joins, dissenting.

Because the court holds that it was error to deny Gustavo’s request for permanent in-junctive relief despite the absence of evidence supporting that request, I dissent.

We should apply the abuse of discretion standard in reviewing the order that denied Gustavo’s injunction request.1 We apply this standard in reviewing temporary and preliminary injunctions,2 and have applied it in reviewing restraining orders.3

*393Gustavo filed a motion seeking an order requiring that the child’s “proper name” be used. His motion papers asserted that Denise had enrolled Amanda in school as “Amanda Burley” in 1996; had not complied with Gustavo’s request that the “proper name” of Acevedo be used “in all legal documents and in her presence”; and had arranged airline travel for “Amanda Liberty” in August 1996. He asked the court to enter an order requiring that “Amanda’s proper name be used in all circumstances legally and personally.” He submitted a proposed order that would have required Denise to tell Amanda “her last name is Acevedo and explain to Amanda that she is to only use the last name of Acevedo”; to use only the “proper name” of Acevedo on all documents; and to correct any documents using a different name.

Although it appears that Gustavo was seeking a permanent injunction, Gustavo’s motion was not supported by any affidavit or equivalent document (verified motion or memorandum) demonstrating the absence of fact disputes. Moreover, he did not request a hearing or a trial on the merits so that he could present additional evidence.4

Denise opposed Gustavo’s motion. Her attorney argued that Denise had not attempted to change Amanda’s name legally; that Amanda, then seven, preferred the name of Burley; that no statute or rule prohibited Amanda from using a last name other than her “legal one”; that Gustavo had cited no supporting legal authority; and that Gustavo had alleged no facts indicating that using “Acevedo” would be in the child’s best interests. Denise stated in an affidavit that Amanda’s knowledge that her last name was different from Denise’s had caused Amanda “some personal difficulty ... in dealing with friends, playmates and school”; that Denise understood Amanda’s “last name legally is Acevedo”; that Denise “ha[d] not taken any steps to change” Amanda’s last name; that she believed requiring Amanda “always” to use her legal surname would cause Amanda “mental anguish and emotional distress”; and that she believed it was in Amanda’s best interest to use the name “Burley” in dealing with friends and school. She denied any intent to limit Gustavo’s visitation or other parental rights.

Gustavo filed a reply memorandum and an affidavit, in which he swore that Amanda had told him “on numerous occasions ... that I am not her father and that her mother told her she didn’t have a father.”

The superior court summarily denied Gustavo’s motion.

An injunction should not be granted unless the movant establishes a state of facts justifying injunctive relief. Gustavo’s motion papers did not establish facts entitling him to a permanent injunction. His original motion papers contained no fact averments made under oath. They alleged facts that were not confirmed in an affidavit. Denise’s opposition did not concede the facts needed for an injunction, and her affidavit did not set out facts demonstrating that Gustavo was entitled to relief. Gustavo’s reply to her opposition was supported by his short affidavit, but it did not contain factual allegations that would have justified entry of an injunction.

What facts had to be established? Under the court’s view today, and considering the scope of the relief it grants,5 apparently all that need be shown is that one parent might be using a name other than the child’s legal name “in any official records, including school, medical or hospital records or membership applications.”6 It concludes that the superior court should have granted injunctive relief “requiring that Amanda’s real name be used in matters of record.”7

The facts before the superior court derive from Gustavo’s unsworn motion and reply *394memorandum and from unauthenticated exhibits including a school evaluation form for “Amanda Burley” and an airline itinerary for “Amanda Liberty.” Simply attaching those pages to his motion was not sufficient to establish facts requiring injunctive relief.8 Denise’s opposition did not concede the truth of any of Gustavo’s material fact assertions.

In my view, Gustavo did not sufficiently establish any facts that would have entitled him to an injunction under this court’s view of the controlling law. I therefore conclude that the superior court did not abuse its discretion in denying Gustavo’s motion.

Alternatively, we should affirm because a permanent injunction should not be granted if there are relevant unresolved fact disputes. Since this case poses unresolved and relevant fact disputes, I would hold that the superior court did not err in denying Gustavo’s motion.

Denise produced evidence permitting but not compelling reasonable persons to conclude that a name change was in Amanda’s best interests. This raised a genuine fact dispute. Was that dispute material to the injunction issue? The court’s ruling today necessarily considers any question of the child’s best interests to be irrelevant unless one parent has sought a formal name change.9 There was no formal name-change petition here.

I am not prepared to hold that the child’s best interests are altogether irrelevant in deciding whether to grant an injunction. Nor am I prepared to hold that a request for an injunction must be granted just because there is a deviation from the child’s legal name in “matters of record.” Gustavo demonstrated no substantive reason why a name change was not in Amanda’s best interests. And he cited no authority supporting his demand for an injunction. On appeal, he continues to argue, with no legal support, that he has an unqualified right to demand that Denise use Amanda’s formal surname for all purposes on all occasions. Under these circumstances, the superior court did not abuse its discretion in denying his request for injunctive relief.

Such cases potentially raise disputes about whether a child’s name may be changed by one parent over the other parent’s objection without satisfying the requirements for a formal name change.10 Policy arguments support each side on this issue. We have rarely considered name-change issues,11 and have not previously resolved this issue. This appeal turns solely on whether Gustavo demonstrated that he was entitled to injunctive relief. Because I think he did not, I would affirm the superior court’s denial of his motion.

. See Carroll v. Carroll, 903 P.2d 579, 582 n. 7 (Alaska 1995) ("We apply an abuse of discretion standard to the trial court’s use of its equitable power.”); North Kenai Peninsula Rd. Maintenance Serv. Area v. Kenai Peninsula Borough, 850 P.2d 636, 639 (Alaska 1993).

. See North Kenai Peninsula Rd. Maintenance, 850 P.2d at 639 ("This court applies an abuse of discretion standard when reviewing an order granting a temporary injunction. The same standard applies when reviewing an order denying a preliminary injunction.” (Citations omitted.)).

. Cf. Pieper v. Musarra, 956 P.2d 444, 446 (Alaska 1998) (“Pieper argues that the superior court erred in granting Musarra a restraining order. We conclude that the superior court did not abuse its discretion in permanently enjoining *393Pieper from interfering with Musarra’s use and occupancy of the partnership’s assets.").

.See Alaska R. Civ. P. 65(a), (b). Although these rules apply to preliminary injunctions and temporary restraining orders, if insufficient supporting evidence is filed with a request for a permanent injunction a hearing or trial should likewise be held.

. On remand, the trial court is to enjoin Denise from making a de facto change of Amanda’s name and issue an injunction requiring that -Amanda's real name be used in all matters of record. Op. at 423.

. Op. at 423.

. Id. at 423.

. Cf. State v. Kluti Kaah Native Village of Copper Ctr., 831 P.2d 1270 (Alaska 1992) (single affidavit filed in support of injunction failed to establish necessary factors for issuance of injunction).

. See Alaska R. Civ. P. 84; AS 09.55.010.

. See generally Merle H. Weiner, “We Are Family": Valuing Associationalism in Disputes Over Children’s Surnames, 75 N.C. L.Rev. 1625, 1761—77 (1997). See also In re Marriage of Schiffman, 28 Cal.3d 640, 169 Cal.Rptr. 918, 620 P.2d 579, 584 (1980) (Mosk, J., concurring) ("Since the law has long recognized the ability and right of the parent with custody to choose among the innumerable alternative courses involving the child’s welfare, I can see no rational reason to deny that parent a similar right to select the name with which the child will be more comfortable.”).

.Cf. Lone Wolf v. Lone Wolf 741 P.2d 1187, 1191-92 (Alaska 1987) (rejecting appellant’s contention that superior court — presiding over divorce action — had jurisdiction to change minor’s name).