(dissenting). "There be of them, that have left a name behind them, that their praises might be reported." The Apocrypha (The Hidden Books), Ecclesiasticus 44:7-9. Marvin Steinbach seeks to have his son, Brandon Arthur, bear his name. The guardian ad litem recommended that it was in Brandon's best interest that he bear his father's surname. The trial court concluded that it was in Brandon's best interest to have his father's surname.1 However, the trial court concluded, erroneously I believe, that sec. 69.14(l)(f)l.b, Stats., gave Brandon's mother the right to select Brandon's surname. I agree that the mother had that right in the first instance; however, the trial *190court had the power upon determination of Brandon's paternity to select Brandon's surname if that was in his best interest. I therefore respectfully dissent.
Marvin Steinbach and Joyce Gustafson were married June 3, 1989. Joyce took Marvin's surname as hers. The parties separated less than a month after their marriage. Marvin began this action for divorce September 5,1989.
On November 27, 1989, the court filed an order approving the parties' stipulation that Joyce was pregnant and that custody and physical placement of the unborn child would remain open until the child was bom. When the child was born, Joyce gave Brandon her surname pursuant to sec. 69.14(l)(f)l.b, Stats. At Marvin's request the parties and the child submitted to blood tests to determine Brandon's paternity. On September 19,1990, the American Red Cross reported that Marvin could not be excluded as Brandon's father and that "paternity is extremely likely." Marvin thereafter acknowledged paternity.
Although the parties resolved many issues by stipulation, they could not agree on Brandon's surname. In the May 6, 1991 judgment of divorce, the trial court ordered that Brandon's surname be changed from Gus-tafson to Steinbach. However, Joyce failed to change Brandon's name and on April 24, 1992, Marvin filed a motion with the court to enforce the judgment by finding Joyce in contempt and imposing remedial sanctions upon her. Joyce then moved the court under sec. 806.07(l)(a), (g), and (h), Stats., to reopen the divorce judgment to delete that part of the judgment changing Brandon's surname. The trial court granted Joyce's motion to reopen and concluded that it lacked the power to change Brandon's surname, although it remained of the opinion that such change was in Bran*191don's best interest. On June 19,1992, the court entered its order finding that it had no authority to include a provision changing Brandon's surname in the divorce judgment. The trial court concluded that Joyce was the only person who could name the parties' minor child.
It is ironic that if Marvin had fathered Brandon out of wedlock and then married Joyce, the trial court, upon a determination of paternity, would have had clear statutory authority to give Brandon the father's surname. See sec. 767.60, Stats. Because Marvin was married to Joyce, but separated from her at the time of Brandon's birth, the statutory trail of trial court authority to name Brandon is less clear. However, it was clearly error for the trial court to conclude that sec. 69.14(l)(f)l.b, Stats., precludes the trial court from changing the child's surname when it determines paternity.
Section 69.14, Stats., deals only with registration of births.2 Section 69.14(l)(f)l.b, Stats., provides:
If the mother [Joyce] of a registrant [Brandon] of a birth certificate under this section is married to the father [Marvin] of the registrant at any time from the conception to the birth of the registrant and the mother is separated or divorced from the father of the registrant at the time of birth, the given name and surname which the parent of the registrant with actual custody enters for the registrant on the birth certificate shall be the given name and surname filed and registered on the birth certificate, except that if a court has granted legal custody of the registrant, the given name and sur*192name which the person with legal custody enters for the registrant on the birth certificate shall be the given name and surname filed and registered on the birth certificate.
Because this provision refers to "legal custody," as well as "actual custody," I infer that the legislature intended the term "actual custody" to refer to the parent having physical custody of the child. Of course, this provision gives the mother of the child the absolute right to initially determine the child's given and surname because she is obviously the parent who will have "actual custody" of the child at the time of birth. The very arbitrariness of this statute lends weight to my conclusion that sec. 69.14(l)(f)l.b, is merely a record facilitating statute.
Neither the trial court nor this court looked beyond sec. 69.14(l)(f)l.b, Stats., to determine whether statutory authority exists for a court to change a child's given and surname. Such authority does, however,. exist. While the statutory trail of authority is tortuous, it is not obscure. Section 69.15, Stats., is entitled "Changes of fact on birth certificates." Subsection (1) provides:
The state registrar may change information on a birth certificate registered in this state which was correct at the time the birth certificate was filed under a court... order issued in this state ... if: (a) the order provides for an adoption, name change or name change with sex change or establishes paternity ....
Subsection (3) is entitled "Paternity." Paragraph (3)(a) provides:
*193If the state registrar receives an order under sub. (1) which establishes paternity . . . the state registrar shall do the following, as appropriate:
4. If the order provides for a change in the child's given name or surname or both, enter the name indicated on a new birth certificate ... or on the original birth certificate . . . except that if the surname of the child under 7 years of age is changed, the state registrar shall prepare a new certificate under sub. (6).
Thus, it is clear that the legislature contemplated that an order establishing paternity may provide for a change in the child's given name or surname or both. Plainly, We must look to the procedures for the establishment of paternity to find the authority for the circuit court to change the child's given or surname.
Paternity is determined under secs. 767.45 to 767.60, Stats. These statutes provide for an independent civil action to determine paternity. However, paternity may be determined in any action in which paternity is an issue, even if the action was not begun for that purpose. In an action for divorce, the paternity of a child may be questioned.
Section 767.45(1), Stats., is not limited to actions brought for the purpose of determining paternity: "The following persons may bring an action or motion for the purpose of determining the paternity of a child . . .." (Emphasis added.) An action brought to determine paternity may result in a judgment. However, if a motion is brought to determine paternity in an underlying action brought for a different purpose, the court may enter an order determining paternity. Section 767.51(1), Stats., provides: "The judgment or order of the court determining the existence or nonexistence of *194paternity is determinative for all purposes." (Emphasis added.) Section 767.51, Stats., does not deal specifically with the change of name of the child. However, sec. 767.51(3), Stats., provides: "The judgment or order may contain any other provision directed against the appropriate party to the proceeding concerning... any other matter in the best interest of the child." I believe the "best interest" of the child includes naming the child.
Other jurisdictions with similar statutes have explicitly determined that ordering a name change is a matter in the best interest of a child. Ohio Rev. Code Ann. § 3111.13(C) (Baldwin 1992), states:
The judgment or order [determining the existence or nonexistence of a parent and child relationship] may contain any other provision directed against the appropriate party to the proceeding, concerning... any other matter in the best interest of the child.
The Ohio Supreme Court has held that: "[P]ursuant to R.C. 3111.13(C), a court of common pleas may determine the surname by which the child shall be known after establishment of the existence of the parent and child relationship, and a showing that the name determination is in the best interest of the child." Bobo v. Jewell, 38 Ohio St. 3d 330, 334, 528 N.E.2d 180, 184 (1988).
Likewise, WASH. REV. CODE § 26.26.130(3) (1991), provides:
The judgment and order [in a paternity proceeding] shall contain other appropriate provisions directed to the appropriate parties to the proceeding, concerning . . . any other matter in the best interest of the child.
*195The Washington Supreme Court has determined: "The court in its discretion may order a change of the name when found to be in the best interests of the child." Daves v. Nastos, 105 Wash. 2d 24, 29-30, 711 P.2d 314, 318 (1985).
The power of a court to grant relief from a judgment under sec. 806.07, Stats., is discretionary. Here, the court granted relief from the judgment because it erroneously concluded that it lacked the power it had exercised in the divorce judgment to change Brandon's surname. Because the circuit court acted under a mistake of law, it erroneously exercised its discretion. State v. Hutnik, 39 Wis. 2d 754, 763, 159 N.W.2d 733, 737 (1968). I would reassure the trial court that it was correct in its first action and reverse the order amending the divorce judgment.
There is much to support a finding that it is in the best interest of a child to bear the surnames of both parents. The issue here, however, is the authority of the court to select the father's surname.
Chapter 69, Stats., deals only with the collection of vital statistics. Section 69.14, Stats., attempts to anticipate every circumstance which could exist when a child is born and provide for the naming of the child solely to have a record of the birth.