Amanda Bell v. Brett Owen Durand

• Court: Louisiana Court of Appeal
• Decided: November 2, 2006
• Docket: CA-0006-0708
• Status: Unknown

Opinion

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

06-708

AMANDA BELL

VERSUS

BRETT OWEN DURAND

**********

APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, DOCKET NO. 219,263 HONORABLE GEORGE C. METOYER, JR., DISTRICT JUDGE

JAMES T. GENOVESE JUDGE

Court composed of Ulysses Gene Thibodeaux, Chief Judge, J. David Painter, and James T. Genovese, Judges. REVERSED.

Todd L. Farrar 1603 Melrose Street Pineville, Louisiana 71360 (318) 448-4040 COUNSEL FOR PLAINTIFF/APPELLANT: Amanda Bell

Henry H. Lemoine, Jr. 607 Main Street Pineville, Louisiana 71360 (318) 473-4220 COUNSEL FOR DEFENDANT/APPELLEE: Brett Owen Durand GENOVESE, Judge.

Plaintiff, Amanda Bell, appeals the judgment of the trial court ordering a

change of her minor child’s surname from Bell to Durand. She alleges non-

compliance with the procedures set forth in La.R.S. 13:4751, et seq., relative to

change of name. For the following reasons, we reverse the trial court’s judgment.

FACTS AND PROCEDURAL HISTORY

Camren Hope Bell (Camren) was born out of wedlock on June 27, 2000. Her

parents, Amanda Bell (Ms. Bell) and Brett Owen Durand (Mr. Durand), never

married. At the time of Camren’s birth, Ms. Bell was domiciled in Grant Parish.

Custody and visitation proceedings were instituted by Mr. Durand in the Thirty-Fifth

Judicial District Court, in Grant Parish, under proceedings entitled “Brett Owen

Durand v. Amanda Bell,” bearing civil docket number 15,041, resulting in a judgment

being rendered in the Grant Parish proceedings on January 13, 2004.

Subsequent thereto, Ms. Bell and Camren moved from Grant Parish to Rapides

Parish, wherein Ms. Bell filed a motion in the Ninth Judicial District Court, Rapides

Parish, to make the January 13, 2004 Grant Parish judgment executory in Rapides

Parish. On December 15, 2004, judgment was signed by the Ninth Judicial District

Court, Rapides Parish, making the Grant Parish judgment executory in Rapides

Parish.

On January 6, 2005, Ms. Bell filed a rule in the Rapides Parish proceedings to

modify custody. Ms. Bell sought to change the consent visitation plan set forth in the

January 13, 2004 Grant Parish judgment, alleging that Mr. Durand was not complying

with the plan. Mr. Durand filed an answer denying that he violated the plan and also

filed a reconventional demand wherein he asserted that “[b]y judgment of March 24,

1 2004, in [d]ocket [n]umber 15041 on the docket of the [Thirty-fifth] Judicial District

Court, [he] was recognized as the natural father of [Camren], therefore the birth

certificate should be reissued naming [him] as [Camren’s] father and changing

[Camren’s] last name.” At a hearing on March 7, 2005, the trial court revisited the

issues of custody, visitation, and child support; however, the judgment which resulted

from that hearing, signed on October 3, 2005, did not address the issue of changing

Camren’s surname or the listing of Mr. Durand as Camren’s father on the birth

certificate.

On December 15, 2005, Mr. Durand filed a rule for custody and ancillary relief,

wherein, among other things, he again raised the issue of Camren’s name change and

the listing of himself as Camren’s father on the child’s birth certificate. Following

a hearing on the matter on January 20, 2006, the trial court ordered that:

[Ms. Bell] will sign all documents that are required by the State of Louisiana to show [Mr.] Durand as [Camren’s] father and that the child’s name be changed to [Camren] Hope Durand so that state registrar of vital records can be notified and a new birth certificate may be issued showing the child’s name to be [Camren] Hope Durand.

A judgment was signed in this matter on February 3, 2006. Ms. Bell perfected this

appeal.

DISCUSSION

On appeal, Ms. Bell argues that it was error for the trial court to order that

Camren’s birth certificate be amended to reflect Mr. Durand’s paternity. We agree.

At birth, Camren’s surname on her birth certificate was her mother’s maiden

name on her birth certificate in accordance with La.R.S. 40:34(B)(1)(a)(vi) of the

“Vital Statistics Law” which states that “if the father of the child is not the husband

of the mother, the surname of the child may be the maiden name of the mother . . . .”

2 Louisiana Revised Statutes 40:34(B)(1)(a)(v) provides that “[a]ny change in the

surname of a child . . . shall be by court order as provided for in [La.]R.S. 13:4751

through [La.R.S. 13:]4755 or as otherwise provided in this Chapter or by rules

promulgated thereunder.” According to La.R.S. 13:4752, the proceeding to change

a name shall be conducted contradictorily with the State. See also, Evans v. Coody,

99-1228 (La.App. 3 Cir. 2/2/00), 758 So.2d 256, writ denied, sub nom. Evans v.

Longrin, 00-683 (La. 3/15/00), 755 So.2d 890. There is nothing in the record before

us which indicates that the Rapides Parish District Attorney was involved in this

matter.

Mr. Durand argues that the procedural requirements set forth in La.R.S.

13:4751, et seq., are inapplicable to the case at bar because Camren’s surname was

not correctly provided at birth by Ms. Bell. Mr. Durand asserts that Ms. Bell knew

he was the father at the time of Camren’s birth. Therefore, he contends that he is not

required to comply with La.R.S. 13:4751, et seq., in order to have Camren’s surname

changed from Bell to Durand.

In Morace v. Waller, 99-1191 (La.App. 3 Cir. 12/8/99), 755 So.2d 905, the

defendant-father made essentially the same argument presented by Mr. Durand. In

Morace, the father of the minor child argued that since the child’s mother knew the

identity of the child’s father at the time of the child’s birth, she was required to list

him as the father and use his surname as the child’s surname. Since the child’s

mother did not provide the correct surname, the father argued that La.R.S.

13:4751(C)(4)1 allowed him to petition to change the child’s surname. This court

1 Louisiana Revised Statutes 13:4751(C)(4) provides “[t]he petition may be signed by either the mother or the father acting alone if a child has been given a surname which is different from that authorized in R.S. 40:34(B)(1)(a).”

3 disagreed with the defendant-father’s interpretation stating “[s]ince [the minor child]

was given a surname which is authorized by La.R.S. 40:34(B)(1)(a), La.R.S.

13:4751(C)(4) does not apply in this instance.” Morace, 755 So.2d at 907.

Therefore, applying the law and our legal ruling in both Morace and Evans, we

find that the proper procedure has not been employed to change Camren’s name and

to require the minor child’s birth certificate to be changed to reflect Mr. Durand’s

paternity. The procedural requirements set forth in La.R.S. 13:4751, et seq., are

applicable in this case, and Mr. Durand must comply therewith in order to effectuate

his desired changes on the child’s birth certificate. Consequently, this part of the

judgment must be reversed.

DECREE

For the reasons set forth above, the portion of the judgment of the trial court

which orders that the minor child’s surname be changed from Bell to Durand and

requires that Mr. Durand be identified as the minor child’s father on the birth

certificate is reversed. All costs of this appeal are assessed to Defendant/Appellee,

Brett Owen Durand.

REVERSED.