Opinion
No. C0-01-1342.
Filed March 26, 2002.
Appeal from Hennepin County District Court, File No. PA40908.
Steven L. Theesfeld, Lawrence M. Baill, Yost Baill, LLP, (for respondent)
Ann Morrice Allenson, Charles M. Goldstein, Goldstein Law Office, P.A., (for appellant)
Considered and decided by Crippen, Presiding Judge, Peterson, Judge, and Halbrooks, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2000).
UNPUBLISHED OPINION
In this change-of-name dispute, the district court allowed respondent-mother Laura Kay Ellingsworth to change the child's surname from Wazwaz to Ellingsworth and to eliminate the names Moses and Abed from the child's middle names. Appellant-father Moses Abdallah Wazwaz argues that the record does not support the district court's determinations that (1) the name-change would not impede the development of the father-child relationship; (2) in the community, father's surname is associated with criminal conduct; and (3) father's surname is unusual and could cause the child to be embarrassed or teased. Father also alleges that the district court's adoption of mother's proposed findings shows that the district court failed to make adequate independent findings to support the change of the child's name. We affirm.
FACTS
Father and mother have a son, born in April 1999. In January 2001, father was sentenced to 48 months in prison for convictions of first-degree burglary and terroristic threats. Following father's incarceration, Hennepin County Family Court Services conducted a supplemental parenting-time and custody evaluation and recommended that mother be granted permanent sole legal and physical custody of son and that father be denied parenting time during his incarceration. Mother moved the district court to change son's surname to Ellingsworth and to eliminate the middle names Moses and Abed from son's name.
In support of her motion for a name change, mother submitted an affidavit stating:
The Wazwaz name is a name associated in the community in which I reside and, in particular, in the law enforcement community with criminal wrongdoing. I have enclosed * * * a letter written by the Chief of Police of the Brooklyn Center Police Department indicating that not only is the Wazwaz family name very familiar to the officers of the Brooklyn Center Police Department, but that 60 different family members have been in contact with the Brooklyn Center Police Department in the last 18 years; 48 have been arrested; and in 41 cases, Wazwaz family members have been identified as suspects. In addition, I understand that the Wazwaz family is under active investigation by the Internal Revenue Service for tax fraud and/or evading payment of income taxes * * *. Further, * * * in the paternity, domestic abuse, child support, and child protection proceedings involving [father] and me * * * either my lawyer or I have been informed by various Court personnel that there is a familiarity with the Wazwaz name at all levels of the judicial process from the many contacts that the Wazwazes have had with the criminal justice system, as well as the Hennepin County Court system in general. I think it is fair to say that the Wazwaz name is not held in high regard by those who are most familiar with it. I am also told by people in the know that the Wazwaz family name is held in disrepute by teachers and school administrators within the Brooklyn Park school system.
[Father] is a convicted felon. He has additional felony charges currently pending against him. He has a long record of traffic and misdemeanor violations numbering in excess of 50.
The affidavit also stated that father had not contributed to son's support in more than 15 months, that mother only used the Wazwaz name on son's birth certificate because father threatened her with "dire consequences" if she did not do so, and that she had been using the Ellingsworth name for son for more than one year. Finally, mother expressed concern that son would be subjected to teasing and ridicule about the Wazwaz name as he got older.
The February 2001 custody evaluation noted several problems that occurred during supervised parenting time from November 2000 until January 2001. On one occasion, father missed parenting time because he overslept. On several occasions, father had confrontations with staff at the parenting-time site regarding father's mother not being included in the supervised parenting time and regarding father's failure to follow rules that he not bring candy for son and that he speak to him in English to allow appropriate supervision, including ensuring that father not make negative statements or ask inappropriate questions about mother. On one of those occasions, father left without visiting with son. The custody evaluator concluded:
[Father] does know how to deal appropriately with his son, but has a great deal of difficulty dealing with authority and limitations placed on his behavior.
I do believe that [father] loves his son. However, I am quite concerned that his intense feelings regarding his relationship with [mother] has led him to trouble and negative consequences on several occasions, including his current incarceration. His behavior demonstrates that he is willing to go to extreme lengths to serve his own self interest. I am concerned that [son] would be negatively influenced by [father] and questioned by him about [mother] and her personal life if seeing him in a low level supervised setting.
Before supervised parenting time was implemented, father had committed domestic assaults against mother during parenting-time exchanges.
By amended order filed June 8, 2001, the district court granted mother's motion for a name change, granted mother permanent sole legal and physical custody of son, and denied father parenting time during his incarceration and supervised release. To support the name change, in accord with mother's affidavit, the district court found that son had used only the Ellingsworth name for a majority of his life; that the Wazwaz name carried little respect in son's community and was associated with criminal wrongdoing, specifically citing the statistics set forth in mother's affidavit; and that Wazwaz was an unusual name, which might cause teasing or embarrassment. The court also found that son was not of an age to express a preference and took judicial notice of public SIP records involving father and his family members, noting that father had a long record of traffic and misdemeanor violations in addition to his current felony conviction. Regarding the relationship between father and son, the district court found:
Because the relationship between [father] and the minor child is that of minor acquaintance at best, no harm will come to the child if the child does not use the Wazwaz name. The relationship between Wazwaz and the child is so poor because Wazwaz has chosen to spend only minimal time with the child and when he does, he uses the child as a tool for revenge. This coupled with his refusal to support the child, shows that Wazwaz has rejected the typical caring and supportive relationship between a parent and child. It is in the best interest of the minor child to change his name so that he does not have to constantly be reminded that Wazwaz has only chose[n] minimal involvement in his life.
DECISION
"This court reviews name changes under an abuse of discretion standard." In re Welfare of C.M.G. , 516 N.W.2d 555, 561 (Minn.App. 1994). When ordering a change in the child's surname against the objection of one parent, the district court should exercise its discretion "`with great caution and only where the evidence is clear and compelling that the substantial welfare of the child necessitates such change.'" In re Application of Saxton , 309 N.W.2d 298, 300-01 (Minn. 1981) (quoting Robinson v. Hansel , 302 Minn. 34, 36, 223 N.W.2d 138, 140 (1974)). This court will not reverse the district court's findings of fact unless they are clearly erroneous. Minn.R.Civ.P. 52.01.
The court shall grant an application to change the name of a minor child unless "the court finds that such name change is not in the best interests of the child." Minn. Stat. § 259.11(a)(3) (2000); see also Saxton, 309 N.W.2d at 300-01 (applying and elucidating Robinson and listing factors relevant to determining whether name change is in child's best interests).
Relying on Robinson, 223 N.W.2d at 140, father argues that the district court erred in changing son's surname because it will have a negative effect on the relationship between son and father. The Robinson court reversed the district court's grant of mother's motion to change her children's surnames in part because a name change can contribute to the estrangement of a child from a father who has shown a desire to preserve the parental relationship. The father in Robinson "had exercised a substantial amount of visitation rights granted him by the divorce decree, demonstrating his effort to maintain a familial relationship with his son and daughters." Id. at 141.
Father argues that the district court's finding that his and son's relationship is one "of minor acquaintance at best" is clearly erroneous. Father contends that he has made every effort to be a part of son's life, but mother has interfered with his parenting time. The record contains evidence, however, that problems with parenting time have resulted from father's conduct.
The custody evaluation and an order in a maltreatment proceeding brought against mother by father indicate that domestic violence by father against mother has harmed son emotionally. During two and a half months of supervised parenting time at the end of 2000 and the beginning of 2001, father failed to visit with son twice. On other occasions, father had confrontations with parenting-time staff and behaved inappropriately towards son. Father is currently serving a 48-month prison term, and the district court denied father parenting time with son while father remains incarcerated or is on supervised release. In addition to the parenting-time problems, father provided no financial support to son during the 15 months before the name-change proceeding. Cf. id. n. 4 (noting that defaults in support payments were not of such character as to evince a total indifference or neglect of children over an extended time period).
Father's contention that the district court's finding that the Wazwaz surname is associated with criminal activity is unsupported by the evidence is without merit. First, the record contains a letter from the Brooklyn Center Police Department confirming the statistics set forth in mother's affidavit. Second, in her affidavit, mother stated that during court appearances, she learned that the Wazwaz name was well known to Hennepin County court personnel, due in part to their many contacts with the criminal-justice system, and was not held in high regard by them. Third, in addition to the offenses for which father is currently incarcerated, in March 2001, a complaint was filed charging him with felony offering of a forged check and felony theft of a motor vehicle.
Father next objects to the district court's finding that the "Wazwaz name is an unusual name which may cause teasing or embarrassment." Father suggests that the finding could have a racist connotation. But because the name is not a common name, there is an increased likelihood that it will be associated with the criminal activity of others with the same name, which could lend itself to teasing by children and cause embarrassment to son. Because nothing in the record indicates that the finding was racially motivated and because evidence in the record unrelated to race supports the finding, we conclude that the finding is not clearly erroneous.
Father argues that the district court erred in eliminating the middle names Moses and Abed from son's name. The finding that son has only a minor-acquaintance relationship with father and the evidence that he was not using those middle names while going by the Ellingsworth name support the elimination of the middle names.
Father finally contends that the name change should be reversed because the district court's findings incorporate portions of mother's affidavit and memorandum. Verbatim adoption of proposed findings is not reversible error, but it raises "the question of whether the trial court independently evaluated each party's testimony and evidence." Bliss v. Bliss, 493 N.W.2d 583, 590 (Minn.App. 1992), review denied (Minn. Feb. 12, 1993). The relevant inquiry in such cases is whether the findings are "detailed, specific and sufficient enough to enable meaningful review by this court." Id. This court must still review the district court's findings under the clearly erroneous standard of review. Sigurdson v. Isanti County, 408 N.W.2d 654, 657 (Minn.App. 1987), review denied (Minn. Aug. 19, 1987).
The district court's finding on the relationship between Wazwaz and the child is taken verbatim from mother's memorandum. Except for the statement that the "Court takes judicial notice of the public SIP records involving [father] and his family members," the district court either paraphrases or directly quotes mother's affidavit and memorandum in its findings on the length of time son used the Ellingsworth name, the degree of community respect associated with the Wazwaz name, and potential teasing or embarrassment.
The district court, however, did not adopt all of the points set forth in mother's affidavit and memorandum. Moreover, the initial findings in the amended order detailing the procedural history of this case are independent findings, and they show that the district court reviewed the entire record in reaching its decision. The district court's findings on custody and parenting time show that it reviewed court-services and parenting-time records. A reading of the amended order as a whole shows that the district court independently reviewed the evidence in the record.
In affirming the denial of a motion to change the children's surname from father's surname to a hyphenated combination of mother's maiden name and father's surname, the supreme court noted in Saxton that the evidence would have also supported a contrary finding. 309 N.W.2d at 301. The record contained evidence that the hyphenated surname would be beneficial because it would reflect the children's dual parentage and enhance the children's self-esteem, but there was also evidence that the children maintained a close relationship with their father. The evidence supporting a name change in this case is stronger than that in Saxton. The district court did not abuse its discretion in granting mother's motion to change son's name.