Daves v. Nastos

694 P.2d 686, 39 Wash. App. 590
CourtCourt of Appeals of Washington
DecidedJanuary 21, 1985
Docket13923-1-I
StatusPublished
Cited by5 cases

This text of 694 P.2d 686 (Daves v. Nastos) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Daves v. Nastos, 694 P.2d 686, 39 Wash. App. 590 (Wash. Ct. App. 1985).

Opinions

Coleman, J.

— Petitioners Susan Daves and Alaina Joy Daves, a minor, hereinafter referred to as "appellants", initiated action in the King County Superior Court to determine the paternity of Alaina Daves, and to establish support obligations. At the time of trial, respondent requested that he be granted relief in the form of an order directing the mother, Susan Daves, to change Alaina's last name to Nastos. Mr. Nastos' answer to the petition did not affirmatively request such relief.

The trial court found that respondent was the father of the child and, in ordering the name change, the trial court held that RCW 26.26.130 authorized such relief. Mrs. Daves objected to this action by the court alleging that the court was without the authority to change the name of the child, who, at the time of trial, was approximately llA years of age. The precise nature and detail of the objection and the court's response thereto is not known because the report of [592]*592proceedings is not before this court. The parties have stipulated that " [ajppellant objected to the Court changing the name of the parties' daughter and the Court's authority to do so.''1 Additionally, there was no express finding entered below as to whether the name change was in the child's best interest.

We first address whether a request for relief not addressed in any pleading, but raised for the first time at trial, may be considered by the trial court over objection of the other party. Citing CR 15(b), appellants contend that a trial court may rule on issues not raised by the pleadings only if those issues are not objected to by a party. Respondent, on the other hand, points to CR 54(c) which provides that every final nondefault judgment "shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings."2

The relevant authorities note that CR 15(b) and 54(c) were designed "to avoid the tyranny of formalism that was a prominent characteristic of former practice and to [593]*593avoid the necessity of a new trial which often follows a deviation from the pleadings." Harding v. Will, 81 Wn.2d 132, 136, 500 P.2d 91 (1972); Rosden v. Leuthold, 274 F.2d 747 (D.C. Cir. 1960); 10 C. Wright, A. Miller & M. Kane, Federal Practice § 2662 (1983). However, though their general objective is the same, the two rules are functionally distinguishable. CR 15(b) is concerned with the litigation of issues not found in the pleadings. On the other hand, CR 54(c) addresses the granting of relief not prayed for in the pleadings.

In general, these rules are liberally applied except where substantial prejudice to the opposing party is shown. Harding v. Will, supra at 136-38; 6 C. Wright & A. Miller, Federal Practice § 1495, at 478 (1971); International Harvester Credit Corp. v. East Coast Truck, 547 F.2d 888, 891 (5th Cir. 1977) (Fed. R. Civ. P. 54(c)).

In the instant case, there is no indication that appellants suffered, or even argued prejudice below. Furthermore, contrary to appellants' argument, the respondent's request for a change of name was not relief "far afield" from the relief requested in the pleadings. Though respondent's answer did not specifically pray for a name change, such relief was clearly within the scope of the judgment and the relief requested. See Lake v. Butcher, 37 Wn. App. 228, 233, 679 P.2d 409 (1984); Moore v. Moore, 391 A.2d 762, 768-71 (D.C. 1978) (affirming trial court's award of certain unprayed-for relief because D.C. R. Civ. P. 54(c) and child's best interests give the judge power and duty to grant complete relief). Moreover, adherence to formal pleading requirements would seem even less appropriate where the focus is on the child's best interest, rather than the interests of the parent/parties.

Next, appellants contend that RCW 26.26.130 does not provide a court with authority in a paternity action to order that a child's name be changed. Though RCW 26.26-.130 does not specifically empower a court to change a child's name, certain broad language in the statute encompasses such a grant of power. The pertinent portion of [594]*594RCW 26.26.130 reads as follows:

(3) The judgment and order shall contain other appropriate provisions directed to the appropriate parties to the proceeding, concerning the duty of current and future support, the extent of any liability for past support furnished to the child if that issue is before the court, the custody and guardianship of the child, visitation privileges with the child, the furnishing of bond or other security for the payment of the judgment, or any other matter in the best interest of the child. The judgment and order may direct the father to pay the reasonable expenses of the mother's pregnancy and confinement.

(Italics ours.) The plain meaning of the words "or any other matter in the best interest of the child" clearly affords powers broad enough to include a matter as important as a child's surname.

However, the statutory language suggests that a change of name cannot occur unless the court finds that such a change is in the best interest of the child. In this respect, appellants argue that the trial court's order should be vacated because the court made no finding that the name change would be in the best interest of the child. We can conceive of two ways to properly raise this argument. First, appellants could assign error to the trial court's failure to enter such a finding. Second, appellants could argue that a finding in the best interest of the child is necessarily implied in finding of fact 8, but the evidence is insufficient to support this implied finding.

Appellants' only relevant assignment of error merely alleges that the "trial court erred" in entering finding of fact 83 and the conclusion of law based thereon. No error is specifically assigned to the sufficiency of the evidence supporting finding of fact 8, nor is error assigned to the lack of a finding that the name change was in the best [595]*595interest of the child. Moreover, the portion of appellants' brief dealing with this assignment of error never questions the sufficiency of the evidence supporting the finding of fact in question. Thus, even if appellants' general assignment of error covers a sufficiency of the evidence argument, we need not consider the error because it is unsupported by argument. Mellor v. Chamberlin, 34 Wn. App. 378, 383, 661 P.2d 996 (1983).

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Daves v. Nastos
694 P.2d 686 (Court of Appeals of Washington, 1985)

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Bluebook (online)
694 P.2d 686, 39 Wash. App. 590, Counsel Stack Legal Research, https://law.counselstack.com/opinion/daves-v-nastos-washctapp-1985.