Opinion
No. 1-635 / 00-1540.
Filed April 10, 2002.
Appeal from the Iowa District Court for Scott County, DAVID H. SIVRIGHT, Judge.
Charlene Buehl appeals from a district court order changing the name of the parties' minor child. AFFIRMED.
Kyle D. Williamson, Davenport, for appellant.
David J. Franks of Franks Roeder, Davenport, for appellee.
Heard by HUITINK, P.J., and VOGEL and EISENHAUER, JJ.
Charlene Buehl appeals from a district court order changing the name of the parties' minor child. She claims the court did not have authority to change the child's name and it is not in the child's best interests to have her name changed. We affirm.
Charlene and Mark Sloan are the parents of Desira, born on February 20, 1997. At the time of the child's birth, Charlene believed Shane Levan was Desira's father and her birth certificate accordingly bore the name Desira Marie Levan.
In September 1999 genetic testing showed Mark was Desira's biological father. As a result, Mark began to pay child support and exercise visitation. Mark subsequently filed an application for custody, visitation, child support, and to change Desira's last name to Sloan. At trial Mark testified Desira was his only child and he and his wife were unable to have any more children. He stated it would be very confusing for Desira to know that he was her father while her last name remained Levan.
Charlene resisted Mark's application. She argued that Desira's last name should remain Levan because Charlene intended to marry Shane Levan and change her last name to Levan. Charlene alternatively requested that the court order Desira's last name changed to Buehl because Charlene had another child whose last name was Buehl.
The district court ultimately concluded Desira's last name should be changed to Sloan. In its name change order the court stated, "To have Desira's growth and development guided by her mother and Mark, as joint legal custodians, with the surname `Levan' will be, at the very least, confusing for her." The court also determined that it was in Desira's best interests to change her last name to Sloan because Mark was paying child support, exercising visitation, and demonstrated a strong interest in his parental relationship with Desira. The court additionally determined that Mark's relationship with Desira would be diminished in the absence of the requested name change.
I. Scope of Review.
Our scope of review in this equitable action is de novo. Iowa R. App. P. 6.4. In equity cases, especially when considering the credibility of witnesses, the court gives weight to the fact findings of the trial court, but is not bound by them. Iowa R. App. P. 6.14(6)(g).
II. The Court's Authority to Order a Name Change.
Charlene contends the district court did not have authority to change Desira's last name in these proceedings. She argues that in the absence of a petition filed under Iowa Code chapter 674 (1999) (Iowa's name-change statute), the court has no statutory authority to change the name of a child born to unmarried parents. We disagree.
Our supreme court has stated:
When we examine our custody statute, Iowa Code section 598.41, we believe that authority to change a child's name may be inferred. Section 598.41 provides the court with broad discretion in determining custody and the physical care of a child and expresses a preference for joint custody. Each custodian has equal participation in decisions affecting "the child's legal status." Iowa Code § 598.41(2). We believe an infant child's name is an incident of the child's "legal status." Accordingly, we hold the trial court possessed subject matter jurisdiction in this respect.
In re Marriage of Gulsvig, 498 N.W.2d 725, 728 (Iowa 1993).
The district court accordingly has authority under Iowa Code section 598.41 to change a child's last name in dissolution proceedings. We believe that the court's name change authority here derives from section 600B.40, which makes section 598.41 applicable to proceedings concerning the custody and visitation of a child born to unmarried parents. Additionally, we note that the principles governing custodial decisions are equally applicable to proceedings involving dissolution of marriage or competing claims of unmarried parents. In re Petition of Purscell, 544 N.W.2d 466, 468 (Iowa Ct.App. 1995). We therefore hold that the district court properly exercised its authority to order a name change in these proceedings.
III. Best Interests.
Charlene argues that the requested name change is not in Desira's best interests. She further contends that if Desira's name is to be changed, it should be changed to Buehl. Charlene additionally challenges Mark's motives, claiming that he only "wishes to exercise some type of ownership interest in the child, Desira."
In a proceeding under section 598.41 to determine a child's last name, we consider the best interests of the child. Gulsvig, 498 N.W.2d at 729. Neither parent has an advantage in determining the child's last name. Id.
In Gulsvig, the court determined the child should retain the mother's last name because the child was physically present in the mother's home along with a half-sister bearing the same name. Id. The court also noted the mother had testified that if she remarried she would not change her name. Id. The court considered the fact the father provided support, exercised visitation, and had a strong interest in the preservation of his parental relationship, which could be weakened if the child did not bear his name. Id. The court found these concerns were mitigated by the generous visitation provided to the father. Id.
The district court found:
The choice here for Desira's surname is either "Sloan" or "Buehl," the surnames of the parents. The Court rejects the suggestion she be allowed to retain the name "Levan," as stated on her birth certificate. Shane Levan may now be cohabiting with Charlene, but he is not the father of either of her children. To have Desira's growth and development guided by her mother and Mark, as joint legal custodians, with the surname "Levan" will be, at the very least, confusing for her.
. . . .
Although she is now learning letters and becoming more cognizant of her name, there is no showing that changing her surname to that of either parent will cause any degree of emotional harm. Mark is providing support, exercises visitation, and has a strong interest in strengthening his parental relationship with Desira, which could be weakened if she does not bear his surname.
These factual findings are abundantly supported in the record, and we adopt them as our own. We, like the district court, find the foregoing factors weigh in favor of Mark's requested name change. Contrary to Charlene's claims, the requested name change is in Desira's best interests. We affirm the decision of the district court.
AFFIRMED.