Bell v. Wardell

34 S.W.3d 745, 72 Ark. App. 94, 2000 Ark. App. LEXIS 799
CourtCourt of Appeals of Arkansas
DecidedDecember 13, 2000
DocketCA 99-1499
StatusPublished
Cited by6 cases

This text of 34 S.W.3d 745 (Bell v. Wardell) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bell v. Wardell, 34 S.W.3d 745, 72 Ark. App. 94, 2000 Ark. App. LEXIS 799 (Ark. Ct. App. 2000).

Opinion

Sam BIRD, Judge.

Appellant Tonya Bell brings this appeal from the Perry County Circuit Court, Third Division, contending that the court’s finding that it is in the best interest of her child that the child’s surname be changed from her surname to that of the child’s father, appellee Michael Wardell, is clearly erroneous.

Bell and Wardell, teenagers, had a child out of wedlock. The child, RaLyn Danielle Bell, was born December 10, 1998, with severe medical problems. Wardell filed a complaint on December 29, 1998, acknowledging that he was the father of the child, seeking to establish paternity and visitation, and asking that the surname of the child be changed from Bell to Wardell. Bell answered and stated that she also wanted paternity established in accordance with state law and that she did not object to establishing visitation. However, she affirmatively pled that it would not be in the best interest of the minor child to have her surname changed because of the voluminous medical records already established in RaLyn’s current sürname. Bell also filed a counterclaim for child support.

WardeE testified that he is eighteen years old and lives in Morrilton. He acknowledged that he is RaLyn’s father and requested that the court order her name changed from BeU to Wardell “because of the fact that she is my daughter.” He agreed to pay child support and medical expenses. He stated, “I very much want a relationship with this child.” He acknowledged her special medical needs and stated that he was wiEing to attend to any of RaLyn’s special needs. He and his mother have visitation with RaLyn every Sunday. He stated that he would be joining the Marine Corps and that in his absence he would like for his mother to have visitation with RaLyn.

On cross-examination, he stated that he had his mother’s maiden name. In addition, he stated that his mother visits with RaLyn more often than he does. He stated that he has held the baby almost every time he has visited and that he has changed her diaper twice. He also admitted to having a violent temper, having once pulled a gun on Bell’s brother, and to incurring several traffic tickets. He stated that he was working on calming down his temper and that that was one of the reasons he intended to join the Marine Corps.

Diane Wardell, Michael’s mother, testified that she thought it was important for RaLyn to establish a relationship with both sides of her family. She stated, “She needs to know her 'heritage, and where she comes from. She needs to know that we love her also. We have contributed clothes and other things to the child since she was born.” She acknowledged that Wardell’s birth name is Michael Dale Evans, Jr., but she stated that she changed his surname to her maiden name after she and Wardell’s father divorced. She said that in order to do so, she had to prove that there had been three years of no contact with Wardell’s father and that his father had not paid any child support. She testified, “When I proved that, I was able to change his name to Wardell because I wanted him to have the name of the people who loved him.” In addition, she stated that Wardell had seen his father only six times since he was an infant. She also acknowledged that Wardell had missed several visitation times scheduled with RaLyn because he does not feel comfortable at Bell’s home.

After Wardell rested, Bell asked that RaLyn’s surname not be changed. She stated that pursuant to Huffman v. Fisher, 337 Ark. 58, 987 S.W.2d 269 (1999), Wardell has the burden of proving that it would be in the best interest of the child to have the surname changed, and that Wardell had not met that burden. The trial court stated that it would reserve its ruling.

Bell testified as to RaLyn’s extensive medical problems. She also stated that on occasion when Wardell visits RaLyn, he just sits on the couch, not even looking at RaLyn. But she admitted that in the last couple of months he has begun to hold her more often, play with her, and feed her. She also stated that Wardell’s mother visits every time he does and that she has spent more time with RaLyn than has Wardell. Bell maintained that when she was pregnant with RaLyn, Wardell was “constantly telling me that he wanted me to move in with him in his mother’s home,” but she did not want to do so. She stated that after a while, he stopped calling her and helping her with any medical expenses.

As far as the surname being changed, she testified that all of RaLyn’s medical bills are in the name of Bell, and that she receives Medicaid and that those benefits are in the name of Bell. She stated that if the court ordered her to change RaLyn’s name, she (Bell) would have to change all of the medical records. She stated that she assumed that the change in her name would delay medical treatment, but that no one has told her that was so. In addition, she stated that “[t]here will not be any stigma attached to RaLyn carrying my last name, but it will cause confusion to change her last name.”

Based upon the testimony and the results of DNA tests, the chancellor found that Wardell is the father of the child. In addition to setting forth a visitation schedule, the chancellor ordered that Wardell pay child support and past medical expenses, that he provide insurance, and that each party be responsible for one half of the non-insured medical expenses. The order also required that Wardell undergo training that he would need to learn to care for a child with RaLyn’s special needs. Finally, the order directed the Division of Vital Records to change the birth certificate to show that Wardell is RaLyn’s father and that her surname is Wardell. Bell filed a motion for a new trial, which was denied, and she brings this appeal.

Chancery courts have the power, either by statute or case law, to change a minor’s name when it is in the best interest of the minor. Moon v. Marquez, 338 Ark. 636, 999 S.W.2d 678 (1999). When a court is determining what surname by which a child should be called, it must consider what is in the best interest of the child. Huffman v. Fisher, supra. When making this determination, the court should consider the following factors: the child’s preference; the effect of the change of the child’s surname on the preservation and development of the child’s relationship with each parent; the length of time the child has borne a given name; the degree of community respect associated with the present and proposed surname; the difficulties, harassment, or embarrassment that the child may experience from bearing the present or proposed surname; and the existence of any parental misconduct or neglect. Huffman v. Fisher, supra. This list is not exhaustive; rather, these are factors that must be considered. Huffman v. Fisher, supra. When reviewing á chancellor’s decision with regard to the changing of a surname, this court will not reverse where the chancellor has made a full inquiry of the implication of the factors and a determination is made with due regard to the best interest of the child. Huffman v. Fisher, supra. A finding is clearly erroneous when, although there is evidence to support the finding, the reviewing court, on the entire evidence, is left with a definite and firm conviction that a mistake has been committed. Huffman v. Fisher, supra. In making this determination, the chancellor assesses the credibility of the witnesses. Moon v.

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Bluebook (online)
34 S.W.3d 745, 72 Ark. App. 94, 2000 Ark. App. LEXIS 799, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bell-v-wardell-arkctapp-2000.