Berger v. Myhre

2010 ND 28, 778 N.W.2d 579, 2010 N.D. LEXIS 31
CourtNorth Dakota Supreme Court
DecidedFebruary 17, 2010
DocketNo. 20090198
StatusPublished
Cited by1 cases

This text of 2010 ND 28 (Berger v. Myhre) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Berger v. Myhre, 2010 ND 28, 778 N.W.2d 579, 2010 N.D. LEXIS 31 (N.D. 2010).

Opinions

SANDSTROM, Justice.

[¶ 1] Lance Berger appeals a district court order denying his petition to change the name of his son, K.F., to K.B. We affirm the district court’s denial of the name change.

I

[¶ 2] Lance Berger and Amber Myhre are the parents of K.F., who was seven years old at the time this action was initiated. Berger and Myhre never married. Myhre is the custodial parent of K.F. K.F. was given his mother’s maiden and then-surname at birth. Berger contested paternity, and paternity was established when K.F. was four months old. Berger has exercised visitation with K.F. since K.F. was fifteen months old. In June 2008, Myhre married and changed her surname to Myhre. K.F. retained his surname. In April 2009, Berger petitioned to change KF.’s surname to Berger so that K.F. would have the same name as one of his parents. Myhre objected. The district court held a hearing on the petition in May 2009, during which both Myhre and Berger testified. The court also considered affidavits from various members of both Berger’s and Myhre’s families. The district court denied the petition, finding Berger failed to establish proper and reasonable cause to change KF.’s name and finding there was no showing the name change would be in KF.’s best interests.

[¶ 3] Berger appeals, arguing the district court erred in denying the petition to change KF.’s surname and erred in considering untimely affidavits filed by Myhre.

[¶ 4] The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. §§ 27-05-06 and 32-28-01. Berger’s appeal is timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const, art. VI, §§ 2 and 6, and N.D.C.C. § 28-27-01.

II

[¶ 5] Berger first argues the district court erred in denying his petition to change K.F.’s surname.

A

[¶ 6] Section 32-28-02 of the North Dakota Century Code allows for the name change of a petitioner when there is “proper and reasonable cause” for doing so. N.D.C.C. § 32-28-02(3). When reviewing a petition for a name change under N.D.C.C. ch. 32-28, the district court is vested with discretion. Hartleib v. Simes, 2009 ND 205, ¶40, 776 N.W.2d 217. When a minor is involved, the requirement of N.D.C.C. § 32-28-02 that the court determine whether there is “proper and reasonable cause” for the proposed name change necessarily includes consideration [582]*582of the best interests of the child. Id.; see also Grad v. Jepson, 2002 ND 153, ¶ 7, 652 N.W.2d 324.

[¶ 7] This Court has employed the abuse-of-discretion appellate standard of review to appeals from orders on name change petitions under N.D.C.C. ch. 32-28. Hartleib, 2009 ND 205, ¶41, 776 N.W.2d 217; see also Grad, 2002 ND 153, ¶ 5, 652 N.W.2d 324. We have questioned the application of the abuse-of-discretion standard in name change cases involving a minor, however, in light of our application of the clearly erroneous standard of review to cases involving a minor’s name change under the Uniform Parentage Act. Hartleib, at ¶ 40; Edwardson v. Lauer, 2004 ND 218, ¶ 5, 689 N.W.2d 407. In Edward-son, we stated:

A decision to order a surname change under [the Uniform Parentage Act] is driven by an examination of the best interests of the child, which is a factual process best suited for clearly erroneous review under N.D.R.Civ.P. 52(a). Although we applied the abuse-of-diseretion standard to petitions to change a minor’s name under N.D.C.C. ch. 32-28, Grad v. Jepson, 2002 ND 153, ¶¶ 5-7, 652 N.W.2d 324, we recognized that the discretion exercised by the district court necessarily includes consideration of the child’s best interests. Id. Given the underlying applicability of the best-interests-of-the-child framework to both of these situations, the abuse-of-discretion standard is necessarily closely aligned to the clearly erroneous standard and it may be appropriate for us to revisit our application of the abuse-of-discretion standard to a petition to change a minor’s name under N.D.C.C. ch. 32-28. Nonetheless, as this precise question is not currently before the Court, nor vital to our resolution of this appeal, we reserve this matter for a future case.

Edwardson, at ¶ 5. In Hartleib, we again reserved the standard-of-review question for a future case. See Hartleib, at ¶ 42 (concluding it was unnecessary to decide whether to apply a different standard of review to a minor’s name change under N.D.C.C. ch. 32-28).

[¶ 8] While the general standard of review for name change petitions under N.D.C.C. ch. 32-28 remains the abuse-of-discretion standard, it is necessary to recognize that whether there is “proper and reasonable cause” for a proposed name change of a minor child necessarily includes consideration of the best interests of the child. Hartleib, 2009 ND 205, ¶ 40, 776 N.W.2d 217; Grad, 2002 ND 153, ¶ 7, 652 N.W.2d 324. An examination of the best interests of the child is a factual process best suited for clearly erroneous review under N.D.R.Civ.P. 52(a). Edwardson, 2004 ND 218, ¶ 5, 689 N.W.2d 407. Therefore, we hold that while the general standard of review for name change petitions under N.D.C.C. ch. 32-28 remains the abuse-of-discretion standard, a district court’s findings on the best interests of a child when deciding a petition to change the name of a minor child are subject to the clearly erroneous standard of review. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence exists to support it, or if the reviewing court is left with a definite and firm conviction a mistake has been made. Edwardson, at ¶ 6.

B

[¶ 9] Berger’s petition to change KF.’s name rests on three primary bases: 1) he wants K.F. to have a surname that matches at least one of his parents; 2) his family’s surname is very important to him, and he wants to pass it on to K.F.; and 3) he believes it is confusing to K.F. to have a name that is different from both of his [583]*583parents’ surnames, and he worries K.F. will be teased because of it.

[¶ 10] At the hearing before the district court, Berger testified K.F. has indicated he wants to have the name Berger. Berger testified K.F. wants to have the same surname his cousin has. Berger also testified he did not know whether he was going to have any more children and he wanted to pass on his family’s name. Berger testified K.F. has encountered awkward situations because of having a different last name, such as KF.’s cousins occasionally asking him about his name. When asked why it would be in the best interest of K.F. to have his last name changed, however, Berger responded, “I guess I don’t understand. Can you repeat that again.” After the question was repeated, Berger stated, “Well, he should have the name of one of his parents and— I don’t know. It is a well-known name. I mean it’s — I don’t know. I guess I don’t know how to answer that one.”

[¶ 11] Myhre also testified at the hearing. She testified Berger has not been an integral part of KF.’s life since his birth, and it would be harmful to K.F. to change his name at this point, when he is seven years old. She testified that when she got married, KF.’s only concern was that he would not have to change his last name. She testified she considered hyphenating her name and asked K.F. whether he would be sad or hurt if she had a different last name than he had, and he said no. She testified K.F.

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Related

In Re Berger Ex Rel. Kcf
2010 ND 28 (North Dakota Supreme Court, 2010)

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Bluebook (online)
2010 ND 28, 778 N.W.2d 579, 2010 N.D. LEXIS 31, Counsel Stack Legal Research, https://law.counselstack.com/opinion/berger-v-myhre-nd-2010.