Filed Washington State Court of Appeals Division Two
February 21, 2024
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II In the Matter of the Parenting and Support of J.J.S., No. 57891-3-II CHRISTY MCKINLEY,
Appellant,
And
LARS SOMMER, UNPUBLISHED OPINION
Respondent.
CRUSER, A.C.J. — Christy McKinley and Lars Sommer are parents to JS, who shares a last
name with Sommer. When JS was born in 2018, McKinley and Sommer, who were never married,
signed an acknowledgement of parentage. In 2020, McKinley petitioned Pierce County Superior
Court to enter a parenting plan and child support order. After a bench trial, the court entered a final
parenting plan allocating JS’s residential time equally between both parents.
In 2022, citing the dispute resolution provision of the final parenting plan, McKinley
moved the court to change JS’s surname to Sommer-McKinley. She argued that a name change
was in JS’s best interest for two reasons: first, it would promote his relationship with both parents,
and second, it would mitigate the difficulties that JS might face in the future if his surname was
not changed. McKinley alleged that Sommer had recently begun attempting to undermine JS’s
relationship with McKinley by emphasizing that JS did not bear his mother’s surname. McKinley No. 57891-3-II
also alleged that Sommer’s new wife (JS’s stepmother) began holding herself out as JS’s mother
and that on at least one occasion, this caused an acquaintance to assume that McKinley was JS’s
nanny. McKinley relied on a list of factors contained in Daves v. Nastos, 105 Wn.2d 24, 31, 711
P.2d 314 (1985), a paternity case dealing with the application of the best interest standard when
one parent wishes to change the child’s name and the other parent disagrees.
The trial court denied McKinley’s motion and made an oral ruling that the motion was
frivolous. The court in its oral ruling expressed its view that Daves was not applicable in a
parenting plan proceeding because Daves was a paternity case. Finally, it expressed that children
“all the time” have different last names than their mothers, and that “we deal with it.” Verbatim
Rep. of Proc. (VRP) at 11. The court entered a written order stating that it did not find that a name
change would be in JS’s best interest.
McKinley now appeals, arguing that the trial court abused its discretion by denying her
motion to change JS’s surname. We agree with McKinley because the record indicates that the
trial court relied on facts outside of the record and incorrectly concluded that the motion was
frivolous without considering the evidence or argument made by McKinley as to JS’s best interest.
Accordingly, we vacate the trial court’s order denying McKinley’s motion to change JS’s surname
and remand for a new hearing on the motion. We also grant McKinley’s request to remand to a
different judge.
FACTS
I. PARENTING PLAN
McKinley and Sommer share a minor child together, JS, who was born in September 2018.
In re Parenting and Support of J.J.S., No. 84636-1-I, slip op. at 1 (Wash. Ct. App. Apr. 17, 2023)
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(unpublished), https://www.courts.wa.gov/opinions/pdf/846361.pdf.1 According to Sommer, the
parties agreed at the time of JS’s birth that he would share his father’s surname and not his
mother’s.
In January 2020, McKinley petitioned Pierce County Superior Court to enter a parenting
plan and child support order. In January 2022, after a six-day bench trial, the court entered a final2
parenting plan that reflected an equal share of residential time with each parent. Paragraph 5 of the
parenting plan provided that the parents were to make major decisions jointly, listing a number of
types of major decisions such as health care and education, but not listing the decision of the child’s
name. Paragraph 6 of the parenting plan, “Dispute Resolution,” listed the superior court judge who
heard the case and indicated that the judge “retains jurisdiction of this case until further order.”
Clerk’s Papers (CP) at 67.
II. NAME CHANGE MOTION
In October 2022, the parties appeared in Pierce County District Court after McKinley
petitioned to change JS’s surname. The court allowed the parties to argue their positions, but
determined that it did not have authority to make any ruling on the matter because the Superior
Court had retained jurisdiction according to the parenting plan. It relied on paragraphs 5 and 6 of
the parenting plan, governing major decisions and dispute resolution, for its determination.
1 Where background facts were not located in the appellate record, we cite to the prior unpublished opinion of Division One of this court. Although unpublished opinions may not be cited as legal authority, see GR 14.1(c), it has long been accepted that “[t]his court may rely on unpublished opinions as evidence of the facts established in earlier proceedings in the same case or in a different case involving the same parties.” Martin v. Wilbert, 162 Wn. App. 90, 93 n.1, 253 P.3d 108 (2011). 2 It appears that an amended final parenting plan was entered on September 2, 2022, but that plan is not in the record.
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In November 2022, McKinley brought a motion for dispute resolution in Pierce County
Superior Court seeking to change JS’s surname from Sommer to Sommer-McKinley.3 McKinley
cited Daves for its list of five non-exhaustive factors to be considered in a contested name change
for a child. McKinley argued that only two factors were relevant in the case of JS: (1) the
preservation and development of his relationship with each parent and (2) the difficulties that he
might experience as a result of either surname.
First, McKinley argued that bearing both names would enhance JS’s relationship with both
parents and would mitigate damage Sommer had done to JS’s relationship with McKinley when
he emphasized that JS did not share a surname with McKinley. Second, McKinley argued that a
hyphenated name would avoid confusion and difficulty for JS because it would mitigate the issues
caused by JS’s stepmother sharing the last name Sommer and holding herself out as his mother.
Sommer submitted a responsive declaration in which he argued that a name change was
not in JS’s best interest because JS felt attached to his name and because changing his surname
would confuse JS and disconnect him from Sommer. He denied McKinley’s allegations that he
commented that JS was “ ‘not a McKinley’ ” and that he or his wife had suggested that JS’s
stepmother was his biological mother. Id. at 9.
In January 2023, the court heard argument on the motion. McKinley argued that promoting
the child’s relationship with both parents was the dispositive factor weighing in favor of changing
3 Although McKinley initially styled her motion as a “Motion for Dispute Resolution” asking the court to order that the parties must cooperate to change JS’s surname, the court treated it as a “Motion to Change the Child’s Name” by reaching the merits of the issue and making a final ruling. CP at 1, 106. The parties refer to this as a motion to change the child’s name in their appellate briefs. Therefore, although McKinley did not amend her petition, the trial court properly treated the name change issue as if it was raised in the pleadings because the opposing party impliedly consented to the issue pursuant to CR 15(b).
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JS’s surname to Sommer-McKinley. She posited that sharing a surname with only one parent
would favor that parent’s relationship over the other, where case law states that the parents’ names
should be considered on equal footing. She reiterated her claim that Sommer made comments,
both to McKinley and to JS, stating that JS was not a McKinley and was only a Sommer, an
allegation that Sommer denied. McKinley also argued that Sommer’s wife of four months was
holding herself out as JS’s mother. She argued that JS would face difficulty in the future explaining
that McKinley was his mother if they did not share a name.
Sommer responded that the McKinley name was not required to bond JS with his mother’s
side of the family because JS’s middle name is a family name from that side. Sommer further
argued that JS’s name was chosen at his birth and agreed on by both parents. He also argued that
case law from paternity actions should not be applied in this matter. Sommer also pointed out that
McKinley did not include the name change issue in the original parenting plan petition.
The court made an oral ruling denying McKinley’s motion as frivolous. The court stated
that the case law relating to parentage was not germane to this question and would not be
considered, and that McKinley had ample opportunity to bring the issue to the court earlier. It
explained its ruling as follows:
All right. When I saw this motion I thought, oh, my goodness this will never end. Ms. McKinley, I looked at your petition and you are a lawyer and you were in dispute at that time. You didn’t ask in the petition or the multiple-day trial anything about changing the child’s name. You signed an acknowledgment of parentage. You are a family law attorney. You know that it says now this is what you two are agreeing, you both sign it, it is the last name of this child, and you have one year to change it. This child is almost five. You cite a case that isn’t remotely related to this case. I mean, this is not a parentage case. It’s not a case where you didn’t have ample opportunity during a trial to bring this issue up. You wait until the trial is over and then you are starting
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a litigation again about an issue not -- I mean, and you knew that I retained jurisdiction. And for you to say -- and you are a lawyer -- that I didn’t address that, when you didn’t even -- when I made it clear is that all issues related to this child should come to me and you didn’t even petition for a different name in this court, I just find this amazing. I am denying your motion. You know, children all the time have different names than their mothers. The schools deal with it. Coaches deal with it. Everywhere we deal with it. So I find your motion frivolous and I am denying it.
VRP at 10-11. The court entered an order in which it concluded, “The court does not find it is in
the child’s best interest to change his name.” CP at 106.
McKinley appeals.
DISCUSSION
I. DENIAL OF NAME CHANGE MOTION
McKinley argues that the trial court erred by failing to consider the best interest of the child
when it refused to change JS’s surname. Sommer responds that the trial court applied the correct
standard and that McKinley failed to meet her burden to show that a name change was in JS’s best
interest. We agree with McKinley and vacate the trial court’s ruling because the record does not
indicate that the trial court considered the evidence or argument when it denied McKinley’s
motion.
A. LEGAL PRINCIPLES
1. Standard of Review
We review a trial court’s decisions relating to a parenting plan for abuse of discretion. In
re Marriage of Katare, 175 Wn.2d 23, 35, 283 P.3d 546 (2012). A trial court abuses its discretion
if its decision is manifestly unreasonable or based on untenable grounds or untenable reasons. Id.
A decision is manifestly unreasonable if no reasonable person would reach the trial court’s
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conclusion. In re Welfare of M.R., 200 Wn.2d 363, 376, 518 P.3d 214 (2022). A decision is based
on untenable grounds if the trial court “relied on facts not supported by the record or on an incorrect
legal standard.” Id.
If we find that the trial court abused its discretion, we then review the trial court’s error for
prejudice. Id. We will reverse only if it is reasonably probable that the error materially affected the
outcome. Id.
2. Name Change Law Generally, a parent wishing to change the name of their child may do so by petitioning the
district court pursuant to RCW 4.24.130(1).4 The name change statute gives the court discretion
when considering a name change petition, but does not explain what the court should consider. Id.
Accordingly, we turn to case law to assist us with determining the trial court’s obligations in
considering such a request.
The leading case involving a disputed request to change the name of a minor child is Daves
v. Nastos, 105 Wn.2d 24, 711 P.2d 314 (1985). In that case, the child’s father initially denied
paternity and, during the parentage trial, requested that the child’s name be changed from her
mother’s name, Daves, to her father’s name, Nastos. Id. at 26. The trial court granted the father’s
request, citing the paternity statute, former RCW 26.26.130 (1983), for its authority to change the
child’s name. Id. The supreme court held that the paternity statute did not authorize a name change,
but that a name change could be procured in a paternity action by amending the pleadings to bring
a concurrent action pursuant to RCW 4.24.130. Id. at 29-30. It vacated the name change order and
4 We cite to the current version of RCW 4.24.130 because its recent amendments have no bearing on the analysis of this case. See LAWS OF 2023, ch. 34, § 1.
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remanded for a hearing as to whether the child’s best interest would warrant changing her surname.
Id. at 32.
In so holding, the supreme court clarified that “a change in the child’s surname should be
granted only when the change promotes the child’s best interests” and that the trial court must
enter a finding on that issue. Id. at 30. It reasoned that the change of a child’s surname is “a change
in status having significant societal implications” and that accordingly, the child’s welfare must
be the court’s “controlling consideration” when ruling on a contested name change request brought
by a parent. Id.
The Daves court emphasized that “neither parent of a nonmarital child has a right superior
to the other” in determining the child’s surname. Id. at 31. In framing the proper inquiry for the
trial court, it emphasized that both the proposed name and current name should be placed on equal
footing, asking “whether the child’s best interests will be served by an order directing that her
name be changed to that of her father, or whether her interests will be better served by retaining
her mother’s maiden name.” Id. It listed five non-exhaustive factors to be considered:
the child’s preference; the effect of the change of the child’s surname on the preservation and the 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 the proposed surname; and the difficulties, harassment or embarrassment that the child may experience from bearing the present or the proposed surname.
Id.
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Although Daves is a paternity case, it has been relied upon in a variety of family law contexts
outside of paternity proceedings when one parent wishes to change the child’s legal name and the
other parent disagrees.5
B. APPLICATION
When the trial court dismissed the motion as frivolous, it failed to support this ruling with
any reasoning or with references either to facts or to the absence of facts in the record. Troublingly,
the trial court appears to have dismissed the motion based on its own assumptions rather than
considering the evidence and argument before it. Additionally, its conclusion was manifestly
unreasonable because no reasonable jurist would find that McKinley’s position was so completely
devoid of merit as to be frivolous. Thus, the trial court abused its discretion in concluding that the
motion was frivolous without giving due consideration to the arguments before it.
A frivolous position is one that is either not grounded in fact or law or that was filed for an
improper purpose. See CR 11; Bryant v. Joseph Tree, Inc., 119 Wn.2d 210, 217, 829 P.2d 1099
(1992). Here, McKinley’s request to change JS’s surname was grounded in fact because she
presented evidence showing that (1) bearing only the surname Sommer was causing confusion for
5 Although GR 14.1(c) directs that “Washington appellate courts should not, unless necessary for a reasoned decision, cite or discuss unpublished opinions,” the following unpublished cases are listed for the sole purpose of demonstrating that this is a well-settled legal issue: In re Parenting and Support of H.R.H., No. 46473-0-II , slip op. (Wash. Ct. App. Dec. 15, 2015) (unpublished), https://www.courts.wa.gov/opinions/pdf/D2%2046473-0-II%20Unpublished%20Opinion.pdf (petition for parenting plan filed by mother, where paternity was established via acknowledgement); In re Custody of L.Z., No. 46466-7-II, slip op. (Wash. Ct. App. Mar. 31, 2015) (unpublished), https://www.courts.wa.gov/opinions/pdf/D2%2046466-7- II%20%20Unpublished%20Opinion.pdf (nonparental custody petition filed by mother’s ex- husband); In re Marriage of Pennington, noted at 162 Wn. App. 1002 (2011) (unpublished) (dissolution of marriage); Ceballos v. Saeteurn, noted at 123 Wn. App. 1047 (2004) (unpublished) (petition to modify custody order between never-married parents); In re Marriage of Schwary, noted at 121 Wn. App. 1007 (2004) (unpublished) (dissolution of marriage).
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those interacting with JS and his mother and stepmother, including community members who
believed McKinley was JS’s nanny; and (2) Sommer made comments that minimized the
significance of JS’s connection to his mother by emphasizing that JS did not share the last name
McKinley. It was grounded in law because McKinley cited the proper authority to support a change
in JS’s surname and made cogent arguments for its application to the case at hand. And finally,
there is no indication that McKinley’s motion was filed for an improper purpose. Accordingly, no
reasonable jurist could find that the motion was frivolous.
In addition, the trial court relied upon facts outside the record when reaching its conclusion.
The trial court stated, “You know, children all the time have different names than their mothers.
The schools deal with it. Coaches deal with it. Everywhere we deal with it. So I find your motion
frivolous and I am denying it.” VRP at 11. The evidence before the trial court did not include data
showing how common it is for children to bear a different surname from their mothers. Nor did it
include any evidence disputing McKinley’s factual allegation that JS’s surname caused
acquaintances to assume that McKinley was JS’s nanny because they did not share a name. The
court disregarded McKinley’s evidence on that point based on its own assumption that such
confusion should simply be “deal[t] with” by all parties involved. Id. Accordingly, the trial court’s
dismissal of the motion was erroneous both because it was manifestly unreasonable and because
it was based upon facts outside the record.
Although it made no finding or conclusion as to the child’s best interest in its oral ruling,
the trial court entered a written finding that “[t]he court does not find it is in the child’s best interest
to change his name.” CP at 106. This is insufficient to overcome the trial court’s bald refusal to
consider the evidence and argument presented by McKinley.
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Sommer concedes that the court made no specific finding on the Daves factors.6 However,
Sommer argues that we should take the absence of such a finding as a presumptive finding against
McKinley, the party with the burden of proof. However, “an appellate court may imply or infer
the existence of a finding of fact ‘if—but only if—all the facts and circumstances in the record . .
. clearly demonstrate that the omitted finding was actually intended, and thus made, by the trial
court.’ ” Dalton M, LLC v. N. Cascade Tr. Servs., Inc., 2 Wn.3d 36, 54, 534 P.3d 339 (2023)
(quoting In re Welfare of A.B., 168 Wn.2d 908, 921, 232 P.3d 1104 (2010)). Here, given the trial
court’s opinion that Daves was not “remotely related” to the issue before it because “this is not a
parentage case,” we cannot conclude that the trial court applied the Daves factors to reach its
conclusion. VRP at 10.
Nor can we conclude that the trial court considered the best interest of the child in any way,
even if it was not required to consider the Daves factors explicitly. Although the trial court may
be correct that it is common for children to bear a different surname from their mothers, this is not
dispositive of whether, in the specific circumstances of the case at hand, a name change was in
JS’s best interest. The trial court does not seem to have considered JS’s specific circumstances at
all, instead basing its ultimate conclusion on the assumption that JS and others should simply “deal
with it.” Id. at 11.
In considering McKinley’s motion, the trial court wholly ignored the very serious
allegation that Sommer and JS’s stepmother held JS’s stepmother out as his biological mother.
Washington courts hold in high regard the parent-child bond and discourage interference with it;
6 Although below, Sommer contested the application of Daves to the facts at issue here, the parties now agree that Daves provides the correct legal standard for determining if a name change is in a child’s best interest.
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indeed, our courts recognize a common law tort claim for alienation of a child’s affection toward
their parent. See, e.g., Strode v. Gleason, 9 Wn. App. 13, 14-15, 20, 510 P.2d 250 (1973) (“We
hold that a parent has a cause of action for compensatory damages against a third party who
maliciously alienates the affections of a minor child.”); Evans v. Tacoma Sch. Dist. No. 10, 195
Wn. App. 25, 36, 380 P.3d 553 (2016) (“[W]e hold that a cause of action for alienation of a child’s
affection continues to be viable under Washington law.”). If true, the alleged conduct would be of
the utmost importance in weighing whether a name change was in JS’s best interest because it
indicates at least some level of interference, whether malicious or not. The trial court should have
taken these allegations into consideration.
We conclude that the trial court erred in failing to meaningfully consider the best interest
of the child as it is required to do when ruling on a contested request to change the surname of a
minor child. Prejudice is evident because of the trial court’s complete failure to consider
McKinley’s argument. Accordingly, we vacate the trial court’s order denying McKinley’s name
change request and remand this matter for a new hearing on the motion.
II. REASSIGNMENT ON REMAND
McKinley asks us to remand to a different judge to avoid the appearance of unfairness or
bias. Sommer asks us to disregard this argument.
Reassignment to a new judge on remand is appropriate to avoid the appearance of
unfairness or bias. In re Marriage of Muhammad, 153 Wn.2d 795, 807, 108 P.3d 779 (2005). We
may remand to a new judge where “the trial judge will exercise discretion on remand regarding
the very issue that triggered the appeal and has already been exposed to prohibited information,
expressed an opinion as to the merits, or otherwise prejudged the issue.” State v. McEnroe, 181
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Wn.2d 375, 387, 333 P.3d 402 (2014) (footnotes omitted). To preserve the appearance of fairness,
because the trial judge has already addressed the issue that triggered this appeal, reassignment
before a different judge is appropriate. See id.
ATTORNEY FEES
Sommer requests attorney fees pursuant to RAP 18.9, which authorizes an award of fees
when an opposing party files a frivolous appeal. A frivolous appeal is one in which, considering
the entire record and resolving doubts in the appellant’s favor, we are convinced that “the appeal
presents no debatable issues upon which reasonable minds might differ, and that the appeal is so
devoid of merit that there is no possibility of reversal.” Advocs. for Responsible Dev. v. W. Wash.
Growth Mgmt. Hr’gs Bd., 170 Wn.2d 577, 580, 245 P.3d 764 (2010). McKinley’s arguments in
this appeal are not devoid of merit. Accordingly, we deny Sommer’s request for attorney fees.
CONCLUSION
We vacate the trial court’s order denying McKinley’s motion for name change and remand
this case for a new hearing on the motion. We grant McKinley’s request to reassign this matter
before a different judge on remand.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
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CRUSER, A.C.J. We concur:
MAXA, J.
VELJACIC, J.