Brittingham v. Dattilio

Court of Appeals of Georgia

Brittingham v. Dattilio

731 S.E.2d 784, 317 Ga. App. 548, 2012 Fulton County D. Rep. 2694, 2012 WL 3740692, 2012 Ga. App. LEXIS 759

CourtCourt of Appeals of Georgia

DecidedAugust 30, 2012

DocketA12A1374

StatusPublished

This text of 731 S.E.2d 784 (Brittingham v. Dattilio) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Brittingham v. Dattilio, 731 S.E.2d 784, 317 Ga. App. 548, 2012 Fulton County D. Rep. 2694, 2012 WL 3740692, 2012 Ga. App. LEXIS 759 (Ga. Ct. App. 2012).

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Opinions

Mikell, Presiding Judge.

Cortney Brittingham brings this pro se appeal from the trial court’s order changing her son’s surname to that of the child’s father, Terry Dattilio. Brittingham argues that Dattilio’s petition to change the child’s name was not verified, that she received insufficient notice of the petition and did not consent to the change, and that Dattilio did not comply with applicable publication requirements. We find no error and affirm.

[549]*549A trial court “has broad discretion ... to change the name of a child, and the court’s decision will not be reversed unless it clearly abuses its discretion by ignoring the best interests of the child.”¹

So viewed, the record shows that in December 2009, having moved to Georgia the previous year, Brittingham began proceedings in DeKalb County Superior Court to domesticate New Jersey court orders as to custody of the unmarried couple’s then-two-year-old son. In July 2011, the trial court entered temporary orders modifying the New Jersey orders. In August 2011, Dattilio moved to an apartment near the home of Brittingham and the child. On September 29, 2011, the trial court set a final hearing for December 1, 2011.

In the meantime, on November 7, 2011, Dattilio filed a counterclaim to change the child’s surname. At the final hearing, Dattilio testified that his son had told him that he wanted to be “just like daddy” and that he wanted “to be a Dattilio.” Brittingham did not raise any procedural objections concerning the father’s name change petition at the hearing. Instead, she testified that she had seen the child use Dattilio as his surname and that “it’s upsetting to him to be so confused” about his last name.

Brittingham argues that the trial court erred when it ordered the name change because Dattilio has not complied with the procedural requirements of OCGA § 19-12-1. Specifically, Brittingham asserts that Dattilio did not obtain her consent, did not verify his counterclaim, and did not serve her with a copy of that pleading, either personally or by publication.²

Dattilio served his counterclaim for name change by mail some weeks before the final hearing, and Brittingham has not disputed that she had actual notice of the pleading well before that event.³ In any event, however, Brittingham neither filed her procedural objections in writing nor raised them at the final hearing; instead, she litigated the merits of the name change. Because Brittingham litigated the issue of the name change in the trial court without raising [550]*550any procedural objections, she has waived consideration of those objections on appeal.⁴ It also appears that the trial court had some evidence before it, including the father’s testimony and the mother’s admission that the child had used the father’s surname and needed finality on the subject, that adopting the father’s surname would be in the best interests of the child. It follows that the trial court did not abuse its discretion when it ordered the name change.⁵

Judgment affirmed.

Miller, J., concurs. Ray, J., concurs specially.

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Mikell, Presiding Judge.

Cortney Brittingham brings this pro se appeal from the trial court’s order changing her son’s surname to that of the child’s father, Terry Dattilio. Brittingham argues that Dattilio’s petition to change the child’s name was not verified, that she received insufficient notice of the petition and did not consent to the change, and that Dattilio did not comply with applicable publication requirements. We find no error and affirm.

[549]*549A trial court “has broad discretion ... to change the name of a child, and the court’s decision will not be reversed unless it clearly abuses its discretion by ignoring the best interests of the child.”¹

So viewed, the record shows that in December 2009, having moved to Georgia the previous year, Brittingham began proceedings in DeKalb County Superior Court to domesticate New Jersey court orders as to custody of the unmarried couple’s then-two-year-old son. In July 2011, the trial court entered temporary orders modifying the New Jersey orders. In August 2011, Dattilio moved to an apartment near the home of Brittingham and the child. On September 29, 2011, the trial court set a final hearing for December 1, 2011.

In the meantime, on November 7, 2011, Dattilio filed a counterclaim to change the child’s surname. At the final hearing, Dattilio testified that his son had told him that he wanted to be “just like daddy” and that he wanted “to be a Dattilio.” Brittingham did not raise any procedural objections concerning the father’s name change petition at the hearing. Instead, she testified that she had seen the child use Dattilio as his surname and that “it’s upsetting to him to be so confused” about his last name.

Brittingham argues that the trial court erred when it ordered the name change because Dattilio has not complied with the procedural requirements of OCGA § 19-12-1. Specifically, Brittingham asserts that Dattilio did not obtain her consent, did not verify his counterclaim, and did not serve her with a copy of that pleading, either personally or by publication.²

Dattilio served his counterclaim for name change by mail some weeks before the final hearing, and Brittingham has not disputed that she had actual notice of the pleading well before that event.³ In any event, however, Brittingham neither filed her procedural objections in writing nor raised them at the final hearing; instead, she litigated the merits of the name change. Because Brittingham litigated the issue of the name change in the trial court without raising [550]*550any procedural objections, she has waived consideration of those objections on appeal.⁴ It also appears that the trial court had some evidence before it, including the father’s testimony and the mother’s admission that the child had used the father’s surname and needed finality on the subject, that adopting the father’s surname would be in the best interests of the child. It follows that the trial court did not abuse its discretion when it ordered the name change.⁵

Judgment affirmed.

Miller, J., concurs. Ray, J., concurs specially.

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731 S.E.2d 784, 317 Ga. App. 548, 2012 Fulton County D. Rep. 2694, 2012 WL 3740692, 2012 Ga. App. LEXIS 759, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brittingham-v-dattilio-gactapp-2012.

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