Opinion
No. 82A01-1103-JP-94
10-13-2011
THE PATERNITY OF K.K.A., Appellant-Respondent, v. D.J.K., Appellee-Petitioner.
ATTORNEY FOR APPELLANT : CURT J. ANGERMEIER Evansville, Indiana
Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the purpose
of establishing the defense of res
judicata, collateral estoppel, or the law
of the case.
ATTORNEY FOR APPELLANT:
CURT J. ANGERMEIER
Evansville, Indiana
APPEAL FROM THE VANDERBURGH SUPERIOR COURT
The Honorable Brett J. Niemeier, Judge
The Honorable Renee A. Ferguson, Magistrate
Cause No. 82D01-0910-JP-749
MEMORANDUM DECISION - NOT FOR PUBLICATION
BARNES , Judge
Case Summary
A.K.A. ("Mother") appeals the trial court's grant of a petition for name change filed by D.J.K. ("Father") regarding their child, K.K.A. We reverse.
Issue
Mother raises one issue, which we restate as whether the trial court abused its discretion by changing the child's surname.
Facts
K.K.A. was born in September 2009 to Mother and Father. After her birth, Father agreed in writing that she would be known by Mother's surname. Soon thereafter, Father filed a paternity action, and Mother admitted that Father was the child's father. In February 2010, Father again agreed in writing that the child would have Mother's surname.
At some point, Father changed his mind about the child's surname. The parties later reached an agreement regarding custody, parenting time, and child support, but they were unable to reach an agreement regarding the child's surname. The trial court held a hearing regarding the matter on February 7, 2011. Father desired that the child have his last name, which would result in the initials of K.K.K. Mother, who had married and was now known as A.K.B., still desired the child to have her family's last name. She was also concerned about their child being teased if she had the initials of K.K.K. Mother volunteered to revert back to her maiden name if the trial court wanted the child to have the last name of one of her parents.
The trial court found it "curious" that Mother was "so adamant" about the child's surname when Mother had changed her own surname upon her marriage. Tr. p. 11. The trial court conceded that having the initials, K.K.K., could be "potentially detrimental to the child." Id. The trial court noted that the bond between Father and the child was also important and could be evidenced by the child having his last name. The trial court ordered that the child have Father's surname. However, out of concern for the K.K.K. initials, the trial court gave Mother the option of choosing a different middle name and recommended that Mother use her maiden name as the child's middle name. The trial court gave Mother a few days to think about a new middle name and discuss it with her family. The trial court stated that it "believe[d] it's in the best interest of this child for her to share her heritage and parentage with both [parents] in name, as well as . . . genetics." Id. at 15-16. Mother now appeals.
Analysis
Initially, we note Father did not file an appellee's brief. When an appellee fails to file a brief, "an appellant may prevail by establishing a prima facie case of error." In re H.M.C., 876 N.E.2d 805, 807 (Ind. Ct. App. 2007), trans. denied. Prima facie errors are those appearing "at first sight, on first appearance, or on the face of it." Id. Application of this standard relieves us of the burden of developing arguments for the appellee. Id.
Mother argues that the trial court abused its discretion by changing the child's surname. Upon a determination of paternity, both the mother and father potentially enjoy equal legal rights as parents with regard to issues of support, custody, and visitation. In re Paternity of Tibbitts, 668 N.E.2d 1266, 1267 (Ind. Ct. App. 1996), trans. denied. "We have applied this notion of equality to the naming of the child." Id. "Our common law is that when one legal parent contests a petition filed by the other to change the name of their minor child and paternity has already been established, the trial court must determine whether a name change is in the child's best interest." Id. "Beyond ensuring the child's continued welfare, this inquiry guarantees both parents an equal opportunity to assert their legal rights with regard to the naming of the child." Id.
A biological father seeking to obtain the name change of his nonmarital child bears the burden of persuading the court that the change is in the child's best interests. Id. Absent evidence of the child's best interests, the father is not entitled to obtain a name change. Id. at 1267-68. We review the trial court's order in such cases under an abuse of discretion standard. Id. at 1268. An abuse of discretion will be found only where the decision is clearly against the logic and effect of the facts and circumstances before the court or the court has misinterpreted the law. Id. We will not reweigh the evidence, and we will view the evidence in the light most favorable to the appellee. Id.
"When a surname change is sought in a paternity action, the trial court may properly consider whether the child holds property under a given name, whether the child is identified by public and private entities and community members by a particular name, the degree of confusion likely to be occasioned by a name change and (if the child is of sufficient maturity) the child's desires." Id. "Other factors which have been considered are the birth and baptismal records of the child, the school records of any older children, health records, and the impact of a name change when there are siblings involved whose name(s) would not be changed." Id.
Here, Father has actively sought and maintained a relationship with the child. However, Father twice signed an agreement that the child would have Mother's maiden surname. Shortly thereafter, Father requested that the trial court change the child's name to his surname. The trial court acknowledged the concern over the child having the initials of K.K.K., but gave Mother the option of changing the child's middle name. However, the child's middle name is also a family name, and Mother wanted the middle name to stay the same.
We conclude that the trial court improperly granted Father's request. Father had repeatedly agreed that the child would have Mother's maiden surname. It was Father's burden to demonstrate that a name change was in the child's best interest. At the hearing, Father's attorney claimed that Father felt strongly about the child having his last name, but Father presented no evidence regarding the child's best interest. We further emphasize that Father failed to file an appellee's brief here, and Mother is only required to demonstrate prima facie error. Under these circumstances, we conclude that the trial court abused its discretion by granting Father's request.
Conclusion
The trial court abused its discretion by granting Father's request the change the child's surname. We reverse.
Reversed. ROBB, C.J., and BRADFORD, J., concur.