Huffman v. Fisher

976 S.W.2d 401, 63 Ark. App. 174, 1998 Ark. App. LEXIS 658

• Court: Court of Appeals of Arkansas
• Decided: October 14, 1998
• Docket: CA 97-1493
• Status: Published

Opinions

Sam Bird, Judge.

Appellant Kara Huffman, a minor, and her parents, appellants William H. and Kathryn Huffman, as Guardians of the Person of Jacob Auston Huffman, a minor, appeal a decision of the Cross County Chancery Court that changed the name of Kara’s baby from Jacob Auston Huffinan to Jacob Auston Fisher. The father of the baby is John Nicholas Fisher. We affirm the decision of the chancellor.

Kara Huffinan and John Nicholas Fisher (Nick) had been involved in a long-term relationship when Kara became pregnant in 1995. At trial, Kara testified that Nick, a high-school senior, urged her not to tell anyone about the pregnancy and said that he wanted her to have a secret abortion. Kara said Nick teased her about being fat and was angry when she refused to have an abortion. Soon after Kara’s parents found out about the pregnancy, Nick told his parents. The Fishers then sought a meeting with the Huffinans, who did not want Nick and Kara present, and the parents met without Nick and Kara. The Fishers offered to, and did, assist in paying for the birth of the child. On May 18, 1996, Jacob was born six weeks premature in a hospital in Forrest City and had to be transferred to a hospital in Memphis. Although Nick acknowledged paternity, Kara did not give the baby Nick’s last name. Nick and Kara went separately to Memphis every day to see him. In the fall, Nick went to college in Russellville. Nick and Kara did not marry.

On August 9, 1996, the State of Arkansas, Office of Child Support Enforcement, as Kara’s assignee of child-support benefits, filed suit to collect child support. In his answer, Nick acknowledged paternity and, by third-party complaint against appellants, asked the court to set an appropriate amount of child support to be paid by him, to grant him reasonable visitation and establish a specific schedule of visitation, and to order that the child’s birth certificate be corrected to reflect the name of the child to be Jacob Auston Fisher. After a hearing, the chancellor entered an order on May 19, 1997, in which he found that Nick was the child’s father and set child support and visitation. The issue of Jacob’s last name was reserved, and on June 3, 1997, the chancellor issued a letter opinion in which he held that there was a compelling reason to change Jacob’s last name to Fisher and so ordered. A formal order directing that the child’s name be changed was entered on July 14, 1997. From that order comes this appeal.

Appellants argue that (1) the court erred in finding that the surname of the baby should be changed from that of the mother and custodial parent to that of the father, the father having failed to present any compelling facts that show it would be in the best interests of the baby to change the surname he has carried since birth; and (2) the best interests rationale adopted by the court in Reaves v. Herman, 309 Ark. 370, 830 S.W.2d 860 (1992), and in McCullough v. Henderson, 304 Ark. 689, 804 S.W.2d 368 (1991), should be clarified to adopt a presumption in favor of the surname chosen for a child by the child’s custodial parent.

Upon de novo review of a chancery court decision, a chancellor’s findings are not disturbed unless they are clearly erroneous or clearly against the preponderance of the evidence. Stone v. Steed, 54 Ark. App. 11, 923 S.W.2d 282 (1996). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake had been committed. Duckworth v. Poland, 30 Ark. App. 281, 785 S.W.2d 472 (1990).

At the hearing Nick admitted that he was upset when he found out that Kara was pregnant, that he may have asked Kara not to tell anyone about the pregnancy, that he had suggested she have an abortion, and that he did not tell his parents about the baby until a couple of months before he was born. He testified that he wanted the child to have his surname because he grew up with his dad’s name and he did not believe that he should be treated differently just because his son was born out of wedlock. He also insisted that he wanted to pay child support and all of the medical expenses, be involved in the decisions relating to Jacob’s upbringing, have regular visitation, and do the things that all fathers do.

Nick’s mother, Janet Fisher, testified that she was willing to take any action on Nick’s behalf the court ordered as long as Nick was in college. When asked why she wanted the baby’s name changed to Fisher, she said:

Nick is his father and he comes from a very proud family. We’re all proud of who we are. This baby will always be — Nick will always be his father and he will always be Nick’s son, and we feel like his name should always be Fisher. Nick’s father was a Fisher and his grandfather was a Fisher and we want this baby to be a Fisher so that his children can be Fishers.

Mrs. Fisher also testified that Nick and his entire family adored and loved the baby, that they visited with him in their home every other Saturday from 10 a.m. to 6 p.m. and that Jacob was considered a part of their family.

Nick’s father also testified that he offered to pay more of the expenses of the birth and to start paying child support for his grandson, but the Huffinans had refused his offer. On cross-examination, Mr. Fisher said he wanted Jacob’s last name changed to Fisher because it was usual and customary for a child to have his father’s last name.

Kara testified that after the baby was born she had no relationship whatsoever with Nick, that there was no way possible there would ever be one again, and she objected to prolonged visitation while Jacob was so young.

On appeal, appellants first argue that the chancellor erred in finding that Jacob’s surname should be changed because there was no compelling evidence that it would be in the best interest of the child. Arkansas Code Annotated section 20-18-401 (f) (Supp. 1997) provides:

(2) If the mother was not married at the time of either conception or birth or between conception and birth, the name of the father shall not be entered on the certificate of birth without an affidavit of paternity signed by the mother and the person to be named as the father. The parents may give the child any surname they choose.

(3) In any case in which paternity of a child is determined by a court of competent jurisdiction, the name of the father and surname of the child shall be entered on the certificate of birth in accordance with the finding and order of the court.

In Reaves v. Herman, 309 Ark. 370, 830 S.W.2d 860 (1992), in which the parents of the baby were seventeen, the father was initially angered by the mother’s pregnancy and unwilling to accept the baby until sometime after its birth. The mother had given the baby her surname. Some months later the father filed a petition for the establishment of paternity, to have the surname of the baby changed to his surname, for division of the birth expenses, future medical expenses, support, and visitation. The chancellor refused to change the surname of the child to that of its biological father. The Arkansas Supreme Court affirmed, stating that there were no compelling facts that showed it would be in the best interest of the nine-month-old child to change the surname he had carried since birth.

In Mathews v. Oglesby, 59 Ark. App. 127, 952 S.W.2d 684 (1997), the father had offered no financial support during the pregnancy, was in arrears in child support, and did not show up for his first two visitations. We are not told the ages of the parents, but the father was able to pay $400-a-month car payments, indicating someone at least older than high-school age. The chancellor announced early in the presentation of the case:

It has been this Court’s policy to change the last name to that of the father unless it is a situation where the child is, let’s say, ten or eleven years old, been in school for a number of years, everybody knows that child by that last name. We’re talking about an infant here. So in all likelihood the Court is going to change the last name.

We held that the chancellor’s policy considered only the age of the child, that the “mechanical application of such a policy precludes consideration of the full panoply of factors inherent in determining the best interest of a child,” and that “[W]hen the best interests of the child are involved, the chancellor should make his or her decision on an individualized basis, not on the basis of a presumption.” 59 Ark. App. at 130, 952 S.W.2d at 686.

Appellants rely heavily upon the Reaves case, pointing out the almost identical facts and arguing that if the supreme court found no compelling facts to change the baby’s name to that of the father in Reaves, then the chancellor in this case abused his discretion by changing Jacob’s name to Fisher. Appellants also point out additional factors in support of their position: Kara has sole custody of the child and is his complete caretaker while also continuing her schooling; appellee encouraged appellant to have a secret abortion; appellee gave no financial assistance to Kara during the pregnancy; appellee gave no emotional assistance, and in fact, ridiculed Kara during the pregnancy about her weight gain; and appellee has not attempted to continue any kind of relationship with Kara since his son’s birth.

Changing the name of a child is a matter in which the chancellor has broad discretion. McCullough v. Henderson, supra. In Clinton v. Morrow, 220 Ark. 377, 247 S.W.2d 1015 (1952), a case in which the natural father objected to his children’s names being changed to the surname of their stepfather, the Arkansas Supreme Court said:

We have no statute requiring the consent of both parents to change the name of an infant. Under the facts here presented, we hold that the question of the right and propriety of the children’s use of the surname of their stepfather is one that rests in the sound discretion of the chancellor. In view of the natural and commendable desire of the father to have his children bear and perpetuate his name, this discretion should be exercised with the utmost caution and such use or change should not be sanctioned unless it is for the best interests of the children.

220 Ark. at 383, 247 S.W.2d at 1018. More recently, in Mathews v. Oglesby, supra, we cited McCullough, supra, and said:

[T]he decision to change or not change the child’s surname should be “the product of the chancellor’s informed discretion, exercised in response to what is deemed to be in the best interests of the child.” When the best interests of the child are at stake, the chancellor should look into the peculiar circumstances of each case and act as the welfare of the child appears to require.

59 Ark. App. at 130, 952 S.W.2d at 686.

The chancellor has done exactly that in this case. In a six-page¹, single-spaced, twenty-paragraph letter opinion, the chancellor carefully reviewed the evidence presented at the hearing and pointed to the factors that he considered to be most significant and persuasive to him in the formulation of his conclusion that it would be in Jacob’s best interest to bear the surname of his father. In his letter, the chancellor opined,

I believe that [Nick] and his family will take a very active interest in the childhood development of Jacob and that Jacob will have every opportunity to know his father and his father’s family. I believe that this will not be a situation in which the mother and her family raises a child without the help, care, love, and support of the father’s family. This being the case, the child will know his father and his father’s family and a surname of Fisher will not [be] awkward for him. I believe that any other scenario would be awkward. A child needs a surname that he can connect with for a lifetime; taking the surname of the mother opens up too many opportunities for the child to be later left without that connectionf.]

The chancellor also said it was the “norm” in Cross County for the child to have the surname of its father; and that “What is of importance to this court is that Jacob have a surname that he is most likely to be able to connect with one of his parents. The most likelihood of that happening is for Jacob to have the surname of Fisher.”

The dissent states that “the real issue here is whether Jacob’s best interests will be served by changing his name to that of his father, or whether those interests will be better served by retaining his mother’s name . . . .” We do not agree. It is true that the determination of the child’s best interests was the issue the chancellor had to decide, but the issue on appeal is whether we believe the chancellor abused his discretion by basing his decision on findings that are clearly erroneous or clearly against the preponderance of the evidence. In making that determination, we do not substitute our judgment for that of the chancellor and retry the case as if no decision had been made below.

From his findings, it is clear to us that the chancellor considered the “full panoply of factors inherent in determining the best interests of a child,” that he has carefully considered the “peculiar circumstances” of this case, Mathews v. Oglesby, supra, and that he has pondered at length the ramifications of his decision. We believe that his conclusions are rationally related to the evidence revealed by the record, and we are not convinced that they are clearly erroneous. Under these circumstances, we are simply not able to say that the chancellor abused his discretion in concluding that the child’s surname should be that of his father.

Appellants also argue that the best-interest rationale adopted in Reaves and McCullough should be clarified by this court to adopt a presumption in favor of the surname chosen for a child by the child’s custodial parent. In support of this position, they rely on and quote extensively from Gubernat v. Deremer, 140 N.J. 120, 657 A.2d 856 (1995). We rejected an identical request in Mathews v. Oglesby, supra, and said, “When the best interests of the child are involved, the chancellor should make his or her decision on an individualized basis, not on the basis of a presumption.”

Affirmed.

Jennings and Crabtree, JJ., agree. Arey, Neal, and Meads, JJ., dissent.

1 For unexplained reasons, page four of the chancellor’s opinion letter was omitted from the record as well as from the copy of it that was attached as an exhibit to appellees’ brief. However, because of the lack of continuity between the end of page three and the beginning of page five of the letter, it is apparent that the original letter did, in fact, contain a page four.