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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
EMILY R. IBARRA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
YVAN POCHRON :
:
Appellant : No. 625 MDA 2023
Appeal from the Order Entered March 27, 2023
In the Court of Common Pleas of Lancaster County Civil Division at
No(s): CI-22-03459
BEFORE: NICHOLS, J., KING, J., and SULLIVAN, J.
MEMORANDUM BY NICHOLS, J.: FILED: APRIL 16, 2024
Yvan Pochron (Father) appeals from the trial court’s order granting
Emily R. Ibarra’s (Mother) petition to change the name of the parties’ minor
child (Child) from A.W.P. to A.W.P.I. Father argues that the trial court erred
by failing to allow the parties to submit questions for Child when the trial court
interviewed Child in camera and the trial court failed to conduct its interview
with Child on the record. Father also contends that the trial court erred by
failing to allow the parties to make closing arguments. Lastly, Father claims
that the trial court erred in applying the best interests of the child standard.
We affirm.
The trial court summarized the factual and procedural history of this
matter as follows:
At the time of [Child’s] birth, Mother and Father were not married.
Mother and Father separated when the child was approximately
eight (8) months old. Since their separation, Mother and Father
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have lived separate and apart and [] Child has remained under
primary care and custody of Mother since April 2019. However,
Mother and Father have shared legal custody of [] Child. On June
8, 2022, Mother filed a petition seeking to change the surname of
[] Child (“Petition”). On March 27, 2023, a hearing was held on
Mother’s petition and the court heard testimony from both Mother
and Father. The court also interviewed [] Child, who was
approximately four and a half years (4½) years old the time,
privately in chambers.
Trial Ct. Op., 9/1/23, at 1-2 (footnote omitted).
We add that Mother testified that Child’s younger half-brother has both
of his parents’ surnames. See N.T., 3/27/23, at 4, 8-9. Mother requested
that the trial court change Child’s surname to be the same as Mother’s
surname and for Father’s surname to be one of Child’s middle names. See
id. at 9-10. Father testified that he was not opposed to adding Mother’s
surname to Child’s name. See id. at 19. Father explained his preference was
his surname and Mother’s surname be hyphenated and used as Child’s
surname. See id. at 19-20.
During the hearing, when the trial court requested to interview Child in
camera, neither party requested for their counsel to be present during the
interview. See id. at 22-23. Also, the parties did not request to submit
questions for the trial court to ask Child. See id. Lastly, the parties did not
request that the trial court conduct its in camera interview with Child on the
record. See id.
After interviewing the child, the trial court granted Mother’s petition and
changed Child’s surname to Mother’s surname and retained Father’s surname
as one of Child’s middle names, resulting in Child’s name being changed from
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A.W.P. to A.W.P.I. See id. at 23-24. Neither party objected to the trial court
announcing its decision without allowing the parties to present closing
arguments. See id.
Father filed a timely notice of appeal. Both Father and the trial court
complied with Pa.R.A.P. 1925.
Father raises the following issues for appellate review:
1. Did the trial court commit an error by failing to provide the
parties with an opportunity for closing arguments following its
interview with . . . Child?
2. Did the trial court commit an error by failing to conduct its
interview of the minor child on the record or allow the parties
to submit questions for . . . Child?
3. Did the trial court commit an error by failing to allow the parties
the opportunity for closing arguments following its interview of
. . . Child?
4. Did the trial court commit an error by improperly considering
the case law provided by [Mother]?
Father’s Brief at 2 (some formatting altered).1
____________________________________________
1 The third issue in Father’s statement of questions involved is nearly identical
to his first issue. See Father’s Brief at 2. Additionally, in the argument section
of his brief, Father divides his second question as two separate sections. See
id. at 7-10. We note that the Pennsylvania Rules of Appellate Procedure
require that the argument section of the brief be divided into as many parts
as there are questions to be argued. Pa.R.A.P. 2119(a). Failure to do so may
result in waiver. Ramalingam v. Keller Williams Realty Grp., Inc., 121
A.3d 1034, 1042 (Pa. Super. 2015). While we do not condone Father’s failure
to comply with the Rules of Appellate Procedure, we find that the defects in
Father’s brief does not impede our ability to render meaningful appellate
review; therefore, we decline to find waiver on this basis. Id.
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Father’s first three claims relate to alleged errors that the trial court
committed during the hearing. Before addressing the merits of these issues,
we must determine whether Father has preserved them for appeal. Mother
and the trial court contend that Father waived his first three issues because
he did not raise them before the trial court. Mother’s Brief at 6-9; Trial Ct.
Op. at 4-5.
“The issue of waiver presents a question of law, and, as such, our
standard of review is de novo and our scope of review is plenary.” Trigg v.
Children’s Hosp. of Pittsburgh of UPMC, 229 A.3d 260, 269 (Pa. 2020)
(citation omitted).
It is well settled that “[i]ssues not raised in the trial court are waived
and cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a); see also
Thompson v. Thompson, 963 A.2d 474, 475-76 (Pa. Super. 2008) (stating
that “[i]n order to preserve an issue for appellate review, a party must make
a timely and specific objection at the appropriate stage of the proceedings
before the trial court. Failure to timely object to a basic and fundamental
error will result in waiver of that issue” (citation omitted)).
Here, the record reflects that during the hearing, Father did not request
permission to submit questions for the trial court to ask Child, did not request
that the trial court conduct the in camera interview of Child on the record, and
did not object to the trial court rendering its decision without first hearing
closing arguments from the parties. See N.T., 3/27/23, at 22-24.
Accordingly, Father failed to preserve these claims before the trial court,
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therefore, they are waived. See Pa.R.A.P. 302(a); Thompson, 963 A.2d at
475-76.
In his remaining claim, Father argues that the trial court erred by
improperly applying the case law provided by Mother and concluding “that
rather than allowing [Child] to have a hyphenated [surname], that [Father’s
surname] should be moved to [Child’s] middle name with [Mother’s surname]
remaining as the sole [surname].” Father’s Brief at 12. Although Father
included this issue in his Rule 1925(b) statement, the trial court concluded
that the issue was waived because Father’s Rule 1925(b) statement was too
vague and unspecific for the trial court to discern what Father was raising on
appeal. See Trial Ct. Op. at 5-6.
Rule of Appellate Procedure 1925 provides that a Rule 1925(b)
statement “shall concisely identify each error that the appellant intends to
assert with sufficient detail to identify the issue to be raised for the judge.”
Pa.R.A.P. 1925(b)(4)(ii). “Issues not included in the Statement and/or not
raised in accordance with the provisions of this paragraph (b)(4) are waived.”
Pa.R.A.P. 1925(b)(4)(vii). Further, this Court has held that “a concise
statement which is too vague to allow the court to identify the issues raised
on appeal is the functional equivalent to no concise statement at all.” S.S. v.
T.J., 212 A.3d 1026, 1031 (Pa. Super. 2019) (citations omitted and formatting
altered).
As stated above, Father filed a timely Pa.R.A.P. 1925(b) statement
contending, in pertinent part:
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4. Failure to properly consider case law provided by
[Mother’s] counsel. In support of [Mother’s] argument,
[Mother’s counsel] provided case law, which was reviewed by the
[trial] court prior to its decision. In this case, [the m]other filed
a petition to change the name of a minor child to a hyphenated
version of the parties’ [surnames], which was approved by the
[trial] court, establishing these petitions exercised according to
the best interests of the minor child. Though the appellate court
ended up reversing the [trial] court’s decision, it was not because
of any issues which may arise from the use of a hyphenated
[surname]. The [Pennsylvania Supreme] Court based its
determination on the record which, “reflects an attempt by the
trial court to impose its own views upon the litigants as opposed
to a genuine determination of what would best suit [the minor
child], taking into consideration ‘good sense common decency and
fairness to all concerned and the public.’” In re Zachary Thomas
Andrew Grimes, [609 A.2d 158, 160] (Pa. 1992), quoting
Petition of Falcucci, [50 A.2d 200, 202 (Pa. 1947)].
Father’s Pa.R.A.P. 1925(b) Statement, 5/15/23, at 3 (some formatting
altered).
As stated above, the trial court concluded that Father’s Rule 1925(b)
statement was too vague to preserve this issue for appeal. See Trial Ct. Op.
at 5-6. However, we can glean from Father’s Rule 1925(b) statement that
Father seeks to challenge the trial court’s conclusion regarding Child’s name
change and its reliance on case law that Mother provided at the hearing. See
Father’s Pa.R.A.P. 1925(b) Statement, 5/15/23, at 3 (reflecting Father’s claim
that the trial court misapplied case law that Mother cited, further, Father
presented a case concerning a minor child’s hyphenated name).
On this record, we are constrained to disagree with the trial court that
Father waived his claim that the trial court abused its decision by not changing
Child’s surname to a hyphenated name that included the surnames of both
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parents. Therefore, we decline to find waiver of this issue based on the
purported vagueness of Father’s Rule 1925(b) statement. Accordingly, this
issue is ripe for our review. Cf. S.S., 212 A.3d at 1031.
Father argues that the trial court failed to consider “good sense,
common decency, and fairness to all concerned and the public” when changing
Child’s surname to Mother’ surname and retaining Father’s surname as one of
Child’s middle names. Father’s Brief at 12-13 (citing Grimes, 609 A.2d at
160). Father notes that the trial court concluded that a hyphenated surname
would be too long, cumbersome, and complicated for Child because of her
age. Id. at 13. Father contends that “[i]t would be more fair to the parties
involved for . . . [C]hild to share the [surnames] of both parties, rather than
just one, when both parties share in physical and legal custody of . . . [C]hild.”
Id.
This Court has stated:
Our standard of review involving a petition for change of name,
regardless of the age of the petitioner, is whether there was an
abuse of discretion. An abuse of discretion exists if the trial court
has overridden or misapplied the law, or if the evidence is
insufficient to sustain the order. Further, resolution of factual
issues is for the trial court, and a reviewing court will not disturb
the trial court’s findings if those findings are supported by
competent evidence. It is not enough for reversal that we, if
sitting as a trial court, may have made a differing finding or
reached a different result.
T.W. v. D.A., 127 A.3d 826, 827 (Pa. Super. 2015); see also id. at 830
(describing this Court’s standard of review as “narrow”).
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In Grimes, our Supreme Court stated
The focus of the statute [governing name changes] and the
procedures thereunder, indicate a liberal policy regarding change
of name requests. The necessity for judicial involvement centers
on governmental concerns that persons not alter their identity to
avoid financial obligations. Beyond requiring compliance with the
notice provisions, the statute provides no additional guidance for
courts considering petitions for change of name. Absent any
legislative criteria, courts reviewing petitions for change of name
exercise their discretion in such a way as to comport with good
sense, common decency[,] and fairness to all concerned and to
the public.
[T]he lower courts of this Commonwealth have consistently
exercised their discretion when reviewing these petitions
according to the best interest of the child in question. The best
interests of the child is the standard used by an overwhelming
majority of our sister states when reviewing petitions for change
of name on behalf of minor children.
We can discern no rational basis for disregarding the great weight
of authority, requiring a court to exercise discretion in the best
interest of a child, when reviewing a minor’s petition for change
of name. In adopting this standard in Pennsylvania, we further
hold, that a petitioner in such instance must bear the burden of
establishing that a change would be in the best interest of said
child.
Specific guidelines are difficult to establish, for the circumstances
in each case will be unique, as each child has individual physical,
intellectual, moral, social[,] and spiritual needs. However, general
considerations should include the natural bonds between parent
and child, the social stigma or respect afforded a particular name
within the community, and, where the child is of sufficient age,
whether the child intellectually and rationally understands the
significance of changing his or her name.
Grimes, 609 A.2d at 160-61 (citations and footnotes omitted and formatting
altered).
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In Grimes, the trial court granted the mother’s petition to change the
child’s surname from the father’s surname to a hyphenated name which used
both the mother’s and the father’s surnames. Id. at 159. Our Supreme Court
reversed, explaining that “the record reveals little competent evidence
regarding the best interest of” the child and that the trial court declined to
interview the child during the hearing. Id. at 161-62. Further, the Grimes
Court observed that during the hearing, the trial court “spent much time
emphasizing the detrimental effects of divorce upon children[,]” but there was
no evidence presented that the parents’ divorce had any detrimental effect on
the child at issue. Id. at 162.
Here, at the conclusion of the hearing, the trial court explained:
[Child] is a well-spoken and well-thought out [sic] child who I
won’t say is overly mature for her age, but is certainly able to
communicate effectively what is on her mind and what her feelings
are. She was very calm and relaxed with me, which I consider a
compliment, and also means that she’s been raised to be
comfortable with people and I want to credit you both with that,
too.
* * *
I am satisfied that the petition and the testimony elicited today
from both [Mother] and [Father] satisfied that the conditions of
Title [54], Pennsylvania Consolidated Statute Chapter 7,
Respecting Judicial Change of Name.[2] Also the necessary proofs
of publication and certifications have been provided.
I do not think it is in the best interest of [Child] to have a
hyphenated [surname]. I think that [it] is too long, too
cumbersome, and too complicated for a little girl, or a little boy
for that matter. But I do think it’s in her best interest to have
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2 54 Pa.C.S. §§ 701-705.
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both names, both her [F]ather’s and [M]other’s names, in her
legal name. Formally, I am going to grant the petition.
* * *
The name of the child is hereby changed to [A.W.P.I.]
N.T., 3/27/23, at 23-24.
In its Rule 1925(a) opinion, the trial court further stated that
[this] court explained at the hearing that the petition met the
requirements of 54 Pa.C.S.[] Chapter 7, respecting judicial change
of name; the granting of the petition would not result in fraud,
confusion, or detriment to any third party; it is in the best interest
of Child to have both Father’s and Mother’s name[s] in [] Child’s
legal name but a hyphenated name is too complicated for [] Child,
thus the court granted the change of [] Child’s surname to
Mother’s surname while keeping Father’s surname in [] Child’s
legal name as part of her middle name; and the objections raised
by Father were not legal objections but sentimental ones.
Trial Ct. Op. at 5 (some formatting altered).
On this record, we discern no abuse of discretion nor error of law by the
trial court in its decision to change Child’s surname to Mother’s surname and
to include Father’s surname as one of Child’s middle names in lieu of a
hyphenated name. Further, we agree with the trial court that its findings are
in the best interests of Child. See T.W., 127 A.3d at 827. For these reasons,
Father is not entitled to relief on his claims, and we affirm the trial court’s
order.
Order affirmed. Jurisdiction relinquished.
Judgment Entered.
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Benjamin D. Kohler, Esq.
Prothonotary
Date: 04/16/2024
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