Hamman v. County Court in & for the County of Jefferson

753 P.2d 743, 12 Brief Times Rptr. 578, 1988 Colo. LEXIS 52, 1988 WL 31127

• Court: Supreme Court of Colorado
• Decided: April 11, 1988
• Docket: 87SC14
• Status: Published

Opinions

VOLLACK, Justice.

The petitioner, John Hamman (the father), petitioned this court for certiorari review of the district court’s affirmance of the county court’s order granting a name change to Hamman’s daughter at the request of his ex-wife. We granted certiorari to address two issues. First, we must determine whether the county court has jurisdiction to rule on the name change of a minor child of divorced parents under section 13-15-101, 6 C.R.S. (1973). Second, we must decide whether the county court abused its discretion or exceeded its jurisdiction when it granted a name change for a minor child at the request of the custodial parent, when the parents were divorced, and the non-custodial parent was not given notice or an opportunity to be heard. We conclude that the county court did have jurisdiction under section 13-15-101, but that the non-custodial parent was entitled to notice. We therefore conclude that the court erred in ordering the name change requested by the custodial parent without providing notice to the non-custodial parent. We reverse the district court’s affirmance and remand with directions to the district court to remand to the county court for proceedings consistent with this opinion.

I.

The petitioner and the respondent entered into a common law marriage in 1977. In the same year, a child was born of the marriage; the child’s name was Arlene Hamman. When the parents’ divorce decree was entered in 1982, the respondent was given custody of the daughter. The father was given reasonable visitation rights and child support obligations. Subsequently, the respondent remarried and began using her new husband’s surname of Bolton. In 1986, the respondent filed a petition¹ in Jefferson County Court pursuant to sections 13-15-101 and -102, 6 C.R. S. (1978), requesting a name change for her daughter Arlene Hamman, who was eight years old at the time. She requested that the daughter’s name be changed to Arlene Bolton.

On the same day that the petition was filed, a hearing was held in the county court. The judge elicited testimony from both Mary Bolton and Arlene Hamman. Mary Bolton gave the following testimony:

Q [the judge] Where is her father?

A [Mary Bolton] In Greeley.

Q What is her father’s position with regard to her name change?

A He doesn’t feel like he really wants her to, but she [Arlene] said then she can’t change it until she gets older.

Q So he is opposed?

A Right, but she wants to do it very badly.

Q Tell me what the custody and support situations are.

A I have full custody of her. He pays child support of $145.00 a month, and he sees her every other weekend, depending upon if he has the time.

Q So with knowledge that he opposes it—

A Right.

Q —you are going ahead?

A Right, and she wants to go ahead and do it, too.

The county court granted the petition for the name change at the hearing. The notice by publication requirements of section 13-15-102 were met.² The father did not receive actual notice of the petition or the hearing. Hamman did not know his daughter’s name had been changed until a week or two later when Arlene told him that her surname had been changed to Bolton.

When Hamman learned that his daughter’s surname had been changed, he filed a motion to intervene under C.R.C.P. 24. The motion was denied by the county court. The father then filed a petition in the nature of a writ of prohibition under C.R.C.P. 106(a)(4) in Jefferson County District Court, asserting that the county court had exceeded its jurisdiction, abused its discretion, and denied his due process rights. The district court entered a written order affirming “the orders of the County Court granting the petition for the name change and denying the Plaintiff’s Motion to Intervene.” The father filed a petition for writ of certiorari with this court, and we granted certiorari on two issues.

II.

The first issue we address is whether the county court has jurisdiction to rule upon a petition requesting a name change for a minor child when the child’s parents are divorced. The father presents alternative arguments, suggesting that the county court cannot have jurisdiction over a child’s name change because that jurisdiction creates a conflict with either the Children’s Code or Colorado’s Uniform Dissolution of Marriage Act. We disagree.

A.

The father contends that only the juvenile court or a district court hearing juvenile matters has exclusive original jurisdiction of a name change petition, based on the statutory definition of “residual parental rights and duties” and the portion of the Children’s Code³ which provides:

19-1-104. Jurisdiction. (1) Except as otherwise provided by law, the juvenile court shall have exclusive original jurisdiction in proceedings: ... (e) To terminate the legal parent-child relationship, including termination of residual parental rights and duties, as defined in section 19-1-103(24); ...

8B C.R.S. (1986) (emphasis added).

Section 19-1-103(24) states:

“Residual parental rights and responsibilities” means those rights and responsibilities remaining with the parent after legal custody, guardianship of the person, or both have been vested in another person, agency, or institution, including, but not necessarily limited to, the responsibility for support, the right to consent to adoption, the right to reasonable visitation unless restricted by the court, and the right to determine the child’s religious affiliation.

8B C.R.S. (1986). The father argues that these two provisions of the Children’s Code require the conclusion that only the juvenile court has jurisdiction to rule upon the name change of a minor child. We disagree.

The juvenile court has “no jurisdiction beyond that expressly given by statute,” and the statute primarily provides jurisdiction “where children are found delinquent or have been so circumstanced, neglected or imposed upon as to require the state to take over their custody or act otherwise for their protection.” Everett v. Barry, 127 Colo. 34, 39, 252 P.2d 826, 829 (1953). The jurisdictional provision, section 19-1-104, also provides “exclusive original jurisdiction” in juvenile court for issuance of support orders, determinations of parentage, adoption orders, and other specific matters which have no relationship to the case at bar. § 19-l-104(l)(f)-(m). The provision relied on by the father grants jurisdiction to the juvenile court in proceedings to “terminate the legal parent-child relationship.” § 19-l-104(l)(e). The name change proceeding at issue here bears no relationship to a proceeding terminating a parent-child relationship. Nowhere in the Children’s Code do we find a jurisdictional provision supporting the argument that juvenile courts have “exclusive original jurisdiction” over a minor child’s name change.

B.

The father’s second jurisdictional argument is that jurisdiction is precluded in the county court because the district court has jurisdiction to order a name change as part of a dissolution proceeding that is properly before the district court. The jurisdictional language of the name change statute requires that a person desiring a name change file a petition and affidavit in “the district, superior, or county court in the county of the petitioner’s residence.” § 13-15-101, 6 C.R.S. (1973).⁴ He suggests that because a district court has jurisdiction to order a name change in certain limited circumstances, the county court should not have jurisdiction under the name change statute.

In In re Marriage of Nguyen, 684 P.2d 258 (Colo.App.1983), cert. denied, 469 U.S. 1108, 105 S.Ct. 785, 83 L.Ed.2d 779 (1985), the court of appeals recognized that Colorado law provides for concurrent jurisdiction in name change proceedings. The court noted that the name change procedure found in section 13-15-101 “is in addition to, not in exclusion of, the common law method for change of name.” Id. at 260. Relying on this distinction, the court of appeals held that “the [district] court has the power, founded in common law, to order a change of name of a minor child of the parties in a dissolution of marriage action,” even though there is no express authorization to do so under the Uniform Dissolution of Marriage Act.⁵ The court of appeals held:

[T]he court should consider those factors applicable to a statutory name change in determining whether to grant a parent’s request_ [A] court has wide discretion in ordering a change of name and should not deny an application unless special circumstances were found to exist. ... [S]uch a special circumstance might exist if the change contributed to the estrangement of the child from a non-custodial parent who wishes to foster and preserve the parental relationship.

Nguyen, 684 P.2d at 260. This common law right is not governed by a specific provision in the statute. A name change in a dissolution can be ordered only when the district court has retained jurisdiction over the parties seeking dissolution, and can only provide for name changes of the spouses and children involved during the course of the dissolution proceeding.

In contrast, all other persons seeking a name change may proceed under section 13-15-101. Section 13-15-101 provides a mechanism by which “every person desiring to change his name” may do so, not merely persons who are involved in a dissolution proceeding. This concurrent jurisdiction of the county and district courts is not improper. We reject the petitioner’s argument that the county court was without jurisdiction to rule in this case, and conclude that jurisdiction was properly in the Jefferson County Court.

III.

We also granted certiorari to decide whether the county court erred when it granted the name change for the minor child, at the request of the mother, the custodial parent, without providing notice to the father, the non-custodial parent.

Colorado’s name change statute provides:

13-15-101. Petition — proceedings.

Every person desiring to change his name may present a petition to that effect, verified by affidavit, to the district, superior, or county court in the county of the petitioner’s residence. The petition shall set forth the petitioner’s full name, the new name desired, and a concise statement of the reason for such desired change. The court shall order such change to be made, and spread upon the records of the court in proper form, if the court is satisfied that the desired change would be proper, and not detrimental to the interests of any other person.

6 C.R.S. (1973) (emphasis added).⁶

The provision requiring public notice provides:

13-15-102. Publication of change.

Public notice of such change of name shall be given at least three times in a newspaper published in the county where such person is residing within twenty days after the order of the court is made, and if no newspaper is published in that county, such notice shall be published in a newspaper in such county as the court directs.

6 C.R.S. (1973).

The requirements of sections 13-15-101 and -102 regarding filing of the petition and publication of the change were met in this case. The father contends, however, that the county court erred in granting the mother’s requested change of his daughter’s surname without providing actual notice to him. We agree.

Whether a non-custodial parent has an interest or right in a child’s bearing his or her surname after the child’s parents are divorced is a question of first impression in Colorado. The majority of jurisdictions which has addressed the issue, however, has held that a parent has “a recognized interest” in his or her child’s surname. In re Tubbs, 620 P.2d 384, 387 (Okla.1980). “The paternal interest has been alluded to by various terms-a natural right, a fundamental right, a primary or time-honored right, a common-law right, a protectible interest and even a legal right.” Id. at 386 (footnotes omitted).⁷

A majority of states has also held, and we agree, that a non-custodial parent is, at a minimum, an interested party in a proceeding to change the surname of the child. See Laks v. Laks, 25 Ariz.App. 58, 60, 540 P.2d 1277, 1279 (1975) (“[T]he father has a protectible interest in having his child bear the parental surname in accordance with the usual custom, even though the mother may have been awarded custody of the child.”); Robinson v. Hansel, 302 Minn. 34, 35-37, 223 N.W.2d 138, 140 (1974) (“A change in surname, so that a child no longer bears his father’s name, not only obviously is of inherent concern to the natural father, so that he should have standing to object, but is in a real sense a change in status having significant societal implications.”); Cohan v. Cunningham, 104 A.D. 2d 716, 716, 480 N.Y.S.2d 656, 657 (1984) (“[A] father has a recognized interest in having his child bear his surname ... [but] neither parent has a superior right to determine the surname of the child.”); Brown v. Carroll, 683 S.W.2d 61, 63 (Tex.Civ.App.1984) (“It is undeniable that a father has a protectable interest in having his children bear his surname.”). We agree with the majority of jurisdictions addressing this question, and conclude that when a child was given the non-custodial parent’s surname prior to the dissolution of the parents’ marriage, a non-custodial parent has an interest in a minor child’s use of his or her surname.

Because a non-custodial parent has an interest in a minor child’s use of his or her surname after the parents are divorced, it follows that a non-custodial parent is an interested party in a name change proceeding under section 13-15-101.⁸ In construing a statute, we assume that the legislature intended a just and reasonable result. People v. Schwartz, 678 P.2d 1000, 1006 (Colo.1984). In order to achieve a just and reasonable result in the application of this statute, we conclude that a non-custodial parent is included within the “any other person” language of the statute.

The language of section 13-15-101 requires a court which is ruling on a name change petition to determine if (1) the desired change is proper, and (2) the desired change is “not detrimental to the interests of any other person.” § 13-15-101, 6 C.R.S. (1973). Because a non-custodial parent is an interested party under the name change statute, a parent must be afforded notice when a name change is sought in order for the court to make the necessary determinations.

Section 13-15-102 requires notice by publication after the hearing. However, notice by publication is not sufficient when a non-custodial parent is an interested party and the name and the address of the non-custodial parent are known or readily ascertainable. Tubbs, 620 P.2d at 385. Notice by publication is inadequate partly because publication does not occur until after the court has entered the name change order. “[A] person’s legally protected interest may not be adversely affected in a judicial proceeding ‘unless a method of notification is employed which is reasonably calculated to give him knowledge at a meaningful time and in a meaningful manner of the attempted exercise of jurisdiction and an opportunity to be heard.’ ” Id.

The Texas Court of Appeals applied a similar statute to virtually identical facts in Eschrich v. Williamson, 475 S.W.2d 380 (Tex.Ct.App.1972), (applied in Scucchi v. Woodruff, 503 S.W.2d 356, 358 (Tex.Ct.App.1973)). In Eschrich, the minor child’s mother, who was the custodial parent, filed a petition to have the child’s name changed to the surname of her second husband. The name was changed without notice to the father/the non-custodial parent. The governing statute provided:

Whenever it shall be to the interest of any minor to change his name, the guardian or next friend of said minor shall file his application.... The judge of said court, if the facts alleged and proven satisfy him that such change will be for the benefit and interest of the minor shall grant authority to change his original name and adopt another.

Id. at 380-81. Even though the statute did not expressly require that notice be given to the non-custodial natural father, the Texas court construed the statute to require notice:

It is the interest of the minor that is paramount in any court action involving minors. Certainly under some circumstances it could be to a minor’s best interest to retain his natural father’s name. We hold that the natural father has an interest in a proceeding such as this and must be given notice. This notice is guaranteed by the Fourteenth Amendment to the United States Constitution and Art. 1, Sec. 19, of the Texas Constitution, and as much a part of [the statute quoted above], as if explicitly written into the article by the legislature.

Id. at 383 (citations omitted).

The highest court of West Virginia used the same reasoning to arrive at the same result in In re Harris, 160 W.Va. 422, 236 S.E.2d 426 (1977). A child’s surname was changed at the request of the custodial parent; the publication by notice requirement of the West Virginia statute was met. The court held:

[U]nder our general powers over procedure in courts of equity we hold that before a court can proceed to consider a petition for a change of name when there is a living father, actual notice must be given to the father if his whereabouts are known or with reasonable diligence could be ascertained.

Id. at 424-26, 236 S.E.2d at 428.

We adopt the reasoning and the results of Eschrich and Harris, and conclude that “the natural father has an interest in a proceeding such as this and must be given notice ... as if [the notice requirement was] explicitly written into the article by the legislature.”

As an interested party, a non-custodial parent is entitled to reasonable notice that the custodial parent has filed a petition requesting a name change for the child or children. Reasonable notice is notice reasonably calculated to notify the non-custodial parent of the pending action in a meaningful time and manner, so that the noncustodial parent can attend the hearing if he or she wishes to participate in the proceeding or voice objection to the name change.

C.

In making the determination whether the requested name change is detrimental to “the interests of any other person,” the court must take into consideration the best interests of the minor child. Some courts have held that “the sole consideration when parents contest a surname should be the child’s best interest.” Schiffman v. Schiffman, 28 Cal.3d 640, 647, 620 P.2d 579, 583,169 Cal.Rptr. 918, 922 (1980); In re Harris, 160 W.Va. 422, 424-26, 236 S.E.2d 426, 428 (1977). Other courts have suggested additional factors for consideration, such as the motive and interests of the custodial parent. A court may properly consider “whether the mother seeks to advance her own interest in bringing the petition and whether the mother’s interest is also in the best interest of the child.” In re Marriage of Omelson, 112 Ill.App.3d 725, 729-31, 68 Ill.Dec. 307, 311, 445 N.E.2d 951, 955 (1983). Other factors appropriate for consideration by the court ruling on the name change are the length of time the minor child has used the surname, the impact of the requested name change on the mother-child relationship and on the father-child relationship, id., the child’s preference, and any misconduct by the non-custodial parent which would justify a name change, or make the non-custodial surname “possibly deleterious.” Brown v. Carroll, 683 S.W.2d 61, 63 (Tex.Ct.App.1984); see Laks v. Laks, 25 Ariz.App. at 61, 540 P.2d at 1280.

The necessity for consideration of these factors in determining what is in the child’s best interests supports our conclusion that the non-custodial parent is entitled to reasonable notice. If the parent desires to do so, the parent may attend the hearing and testify as to his views about the requested name change. A court cannot properly assess the best interests of the child and other appropriate considerations if the interested non-custodial parent is denied the opportunity to be present at the name change hearing. Harris, 236 S.E.2d at 429.

In coming to this conclusion, we emphasize that we are not granting to a non-custodial parent the power to necessarily prevent a name change by making his objections known. Rather, we hold that the interested non-custodial parent is entitled to reasonable notice. Whether the particular facts before a court constitute reasonable notice is a factual question for the lower court’s determination. The question of whether the requested name change is in the best interests of the child is also a factual determination for the trial court, subject to the abuse of discretion standard of review.

We reverse the district court’s order and remand with directions to remand to the county court for proceedings consistent with this opinion.

LOHR, J., concurs in part and dissents in part, and MULLARKEY, J., joins in this concurrence and dissent.

1 . The caption of the petition shows that the petition was actually filed by "ARLENE KAYE HAMMAN [the daughter], by and through her mother and next friend, MARY VICTORIA BOLTON.”

2 . It was extremely unlikely that the father would have obtained notice through publication, because he lived in Greeley and publication of the notice was in the Golden Transcript.

3 . §§ 19-1-101 to 19-11-110, 8B C.R.S. (1986).

4 . Section 13-15-101 was amended in 1987. The only substantive change in the statute is that a party seeking a name change now files a petition "in the district or county court,” rather than "the district, superior, or county court.” § 13-15-101, 6A C.R.S. (1987).

5 . §§ 14-10-101 to -133, 6B C.R.S. (1987).

6 . See supra note 4.

7 . Most jurisdictions which have recognized a right or interest' of the non-custodial parent in use of the surname have not specified whether this right falls under the life, liberty, or property classifications of the due process clause. See, e.g., Carroll v. Johnson, 263 Ark. 280, 284, 565 S.W.2d 10, 13 (1978) (The non-custodial parent’s "protectible interest” is held to be included under the " life, liberty or property’ umbrella.” Id. at 288, 565 S.W.2d at 15.): Tubbs, 620 P.2d at 387 (Without specifying whether it is classified as life, liberty, or property, non-custodial parent’s interest in child’s surname is said to be “the subject of constitutional protection under both the Due Process and Equal Protection Clauses.”) Id. (footnote omitted).

8 . In concluding that a non-custodial parent has such an interest, we hold this interest to be a parent’s statutory right as an “other person" who has an interest that may be detrimentally affected by a name change under section 13 — 15— 101, rather than a constitutional right. In order for a non-custodial parent who is an interested party to exercise this right, he or she is entitled to reasonable notice prior to the name change proceeding.