In Re Petition of Kruzel

226 N.W.2d 458, 67 Wis. 2d 138, 67 A.L.R. 3d 1249, 1975 Wisc. LEXIS 1449

• Court: Wisconsin Supreme Court
• Decided: March 6, 1975
• Docket: 367
• Status: Published

Opinions

Heffernan, J.

This case presents the question of whether upon marriage a woman is required by law to assume the surname of her husband. We conclude that a woman upon marriage adopts the surname of her husband by thereafter customarily using that name, but no law requires that she do so. If she continues to use her antenuptial surname, her name is unchanged by the fact that marriage has occurred.

Kathleen Rose Harney married Joseph Michael Kruzel on July 81, 1971. She is an art teacher in the Milwaukee school system and was issued a teacher’s certificate under her birth-given surname. She was employed by the Milwaukee school system under that name and exhibited works of art under the name Harney. She at all times used the name Harney and not Kruzel.

The Milwaukee school board insisted, however, for group insurance purposes, that Kathleen either use her husband’s surname or “legally” change her surname to Harney.

Kathleen accordingly petitioned ¹ the circuit court for Milwaukee county for an order “changing” her surname from Kruzel to Harney. At the hearing it. was shown that at no time had the petitioner ever used the name Kruzel. The only time she had used Kruzel as her surname was in the petition for the instant proceeding, and then only for the purpose of “changing” that name to Harney.

The trial judge relied on 57 Am. Jur. 2d, Name, p. 281, sec. 9, which states:

“It is well settled by common-law principles and immemorial custom that a woman upon marriage abandons her maiden name and assumes the husband’s surname.”

The trial judge also reasoned that sec. 247.20, Stats., which permits a woman, upon divorce, under some circumstances, to “resume” her maiden name, indicates that “a woman upon marriage assumes the surname of the husband . . . .”

No one testified in opposition to the name change. However, the trial judge stated that to permit Kathleen to bear the surname Harney and her husband the name Kruzel would be contrary to the best interests of any children that might thereafter be born to the marriage. He said that it should be agreed at the time of marriage that all members of the family should bear the same name. “If they cannot at that time agree, it would be better for them, any children they may have, and society in general that they do not enter into the marriage relationship.” He concluded that, upon marriage, her surname was changed to that of her husband, and the petition for change of name back to Harney was denied. The appeal is from the order dismissing the petition for change of name.

Although the petition brought by Kathleen was based upon her assumption that the marriage had compelled a change of name in law, the record shows, and counsel on appeal concedes, that the petitioner never used the surname of her husband but only her paternal surname. Accordingly, this case does not present the legal problems that might arise were a married woman, who had assumed and used her husband’s surname, to seek to change that married name and resume her maiden name.

If it can be said that a marriage does not compel a woman to assume her husband’s surname, in this case no name change took place at all, and Kathleen’s last name remained Harney.

While counsel for the petitioner and for the trial judge have ably briefed the court on numerous other related aspects of the law of name change, the linchpin of either argument is whether a name change occurs automatically upon marriage. The respondent has argued that the trial judge correctly concluded that the common law compelled a marital name change. The petitioner’s counsel argued that the common law does not require or cause a change in a woman’s surname upon marriage, but rather that such change of name will occur only with the acquiescence of the woman and the use by her of her husband’s surname, i.e., the change of name is one of custom and not of law.

The trial court’s legal conclusion was based solely on a quotation from American Jurisprudence, a most useful research tool but not a primary law source. It has no weight in itself as controlling authority, and is relevant only to the extent that it is supported by ease authority of appellate courts or statutes that speak directly to the issue at hand.

There is, as counsel for respondent concedes, no Wisconsin statute that requires a married woman to take her husband’s surname. The respondent argues that, because it is customary for a wife to take her husband’s name on marriage, that custom has ripened info a rule of common law. While it is true that some customs of society have developed into rules of law, there is no evidence that in this jurisdiction the custom was ever accorded that effect. Our case law also is silent on this point.

Counsel relies heavily on the bizarre case of Chapman v. Phoenix National Bank of City of New York (1881), 85 N. Y. 437. That case states: “For several centuries, by the common law among all English speaking people, a woman, upon her marriage, takes her husband’s surname.” (P. 449) That statement is merely the ipse dixit of the author of the opinion. No authority is cited for that proposition. It seems clear that, while justice was no doubt done in Chapman, it was plainly in error in respect to “centuries” of common law.

Sixty years before Chapman, an English case, The King v. The Inhabitants of St. Faith’s, Newton (1823), 3 Dowling & Ryland’s Reports 348, held that a woman is not required to bear the surname of her husband. In an opinion supporting the court’s mandate in St. Faith’s, Judge Best stated:

“It has been asserted in the argument, that a married woman cannot legally bear any other name than that which she has acquired in wedlock; but the fact is not so; a married woman may legally bear a different name from her husband, and very many living instances might be quoted in proof of the fact.” (P. 352)

19 Halsbury, Laws of England (3d ed.), p. 829, sec. 1350, is consistent with the holding in St. Faith’s. Hals-bury summarizes the law of England in this respect:

“When a woman on her marriage assumes, as she usually does in England . . . the surname of her husband in substitution for her father’s name, it may be said that she acquires a new name by repute .... The change of name is in fact, rather than in law, a consequence of the marriage.”

It seems clear that Chapman ² erroneously states the common law; and as the quotation from Halsbury seems to demonstrate, the custom of taking the husband’s name was not accorded the status of a rule of common law. It was merely an example of taking and using a name until it became the name of the user by repute. By repute it could, of course, become a lawful name, though not a name legally compelled by marriage.

It should be noted, moreover, that Chapman apparently is not accorded the effect of precedent in New York. In the recent case of Application of Sara Ryan Halligan (1974), 46 App. Div. 2d 170, 361 N. Y. Supp. 2d 458, a unanimous court held that Sara Ryan, married to one Halligan, had the right to be known as Sara Ryan and by no other name, despite the marriage. No reference was made to the Chapman Case.

It appears that the erroneous conclusion that by common law a married woman must assume her husband’s surname had its genesis in the dicta of Chapman. It is interesting to note that the American Jurisprudence statement, supra, is based upon cases which either cite no authority or cite Chapman. In fact, one of the cases relied upon by American Jurisprudence, People ex rel. Rago v. Lipsky (1945), 327 Ill. App. 63, 63 N. E. 2d 642, not only relies on Chapman as its authority, but circumloeutionally on American Jurisprudence. We conclude that the entire line of cases which were relied upon by the respondent herein is based upon unsupported assertions in respect to the common-law requirements.

Moreover, in Wisconsin, the attorney general, as the chief legal adviser to the state government and its administrative agencies, has repeatedly held that a woman, upon marriage, is not required by law to take her husband’s surname.

A typical statement in respect to the legal name of a married woman appears in XIII Opinions of the Attorney General (1924), 632, 633, wherein it is stated:

“While a married woman generally takes and uses her husband’s surname, there is nothing in the laws of this state that affirmatively requires it, although the general rule of such custom is recognized in the divorce laws. See sec. 2360n. Marriage is purely a civil contract under our laws (sec. 2328, Stats.), which does not change the identity of the parties to it.”

The attorney general made similar rulings in Report and Opinions of the Attorney General (1906), 270, and XII Opinions of the Attorney. General (1923), 256. Additionally, the attorney general has ruled that the common-law right of a person to freely change a name applies in Wisconsin in the absence of fraud. XXXII Opinions of the Attorney General (1943), 203; XXXV Opinions of the Attorney General (1946), 178; XXXIV Opinions of the Attorney General (1945), 72; XXI Opinions of the Attorney General (1932), 528; and XX Opinions of the Attorney General (1931), 627.

While the opinions of the attorney general are not authoritative sources of the law, they are in some cases highly persuasive; and, of course, in cases where ah attorney general’s opinion has been followed by consistent administrative practices, those opinions may well become authoritative as a practical construction of a statute.

These opinions are cited, not because they are independent controlling authorities, but because they demonstrate that the custom practiced by most married women of assuming their husbands’ surnames has never been interpreted in Wisconsin as a rule of the common law.

The petitioner in this case contends that Lane v. Duchac, supra, is an authoritative holding of this court that the common law of Wisconsin has recognized that a wife was not required to assume her husband’s name. In that case, it was argued that a mortgage was void because the maiden name, Barbara M. Rhyner appeared in the mortgage instead of the person’s married name, Barbara Zentner. The court stated:

“It is not true that a fictitious payee and mortgagee is named in the note and mortgage. Barbara M. Rhyner is not a fictitious person, but a person in esse. True, since her marriage she is entitled to the name of her husband, Zentner, but we are aware of no law that will invalidate obligations and conveyances executed by and to her in her baptismal name, if she choose to give or take them in that form. Hence, were she the owner of the note and mortgage in suit, it would be no defense to her action upon them that they were executed to her by her baptismal name.” (P. 654)

We do not believe that this case holds, as a matter of common law, that a woman’s .name remains unchanged despite marriage. That was not the question presented to the court. The question was whether the identity of the person with different names was the same. The court did not hold directly on the question presented here. It would appear, however, had the court concluded that upon marriage it was obligatory for a woman to adopt her husband’s surname, that there would have been some discussion of that point. Lane implicitly seems to recognize that the common law did not compel a change in name after marriage. To that limited extent, it is persuasive of the petitioner’s point of view.

We conclude, from these limited Wisconsin authorities, that the common law in Wisconsin has never ossified to the point of a holding that a wife is required to take her husband’s name. The implicit assumption is to the contrary. The common law of England cited above has remained in effect in the state of Wisconsin until the present day.

The respondent, in effect, is asking us to change that common law to hold for the first time in Wisconsin that a wife is obliged to take the surname of her husband. We conclude, as did the Connecticut court in Custer v. Bonadies (1974), 30 Conn. Supp. 385, 318 Atl. 2d 639, that it would be inappropriate to make such change. The Connecticut court said:

“It hardly seems the time for the Connecticut courts to accept an outdated rule of common law requiring married women to adopt their spouse’s surnames contrary to our English common-law heritage and to engraft that rule as an exception to the recognized right of a person to assume any name that he or she wishes to use.” (P. 641)

It is undoubtedly true that the tendency of a wife to take her husband’s surname was spawned by the common-law theory of marriage. Under that theory, upon marriage, a man and a woman became one and that one was the husband. In view of that theory of marriage, it is perhaps surprising that the English common law, out of which grew the theory of coverture, did not require that the husband’s surname be assumed in all cases by the wife. On the contrary, however, when the wife did assume the husband’s name, it was a matter of custom or practice and not of law.

The theory of coverture and the discussion of its effect upon married women’s surnames is extensively discussed in a number of law review articles.³

During the period prior to the passage of women’s rights statutes in the United States, the custom of a wife adopting her husband’s surname grew, although not all women yielded to the custom. The custom of a married woman retaining her surname was clearly the practice in England prior to the time of the general adoption of the coverture theory, but with the growth of that common-law theory and the denial of the right of married women to own property, there came the general practice of a wife assuming the husband’s surname. 32 Md. L. Rev., supra, page 415, states:

“Seen in this light the abandonment of personal, individual surnames by married women becomes comprehensible, indeed almost inevitable, as a symbol of their identity with their husbands, and as a symbol of their lack of individual importance in society.”

Obviously, the conditions that led to the practice of having women adopt their husbands’ surnames no longer have their foundation in existing law. In Wisconsin law, since the passage of the Married Woman’s Property Act, ch. 44 of the Laws of 1850, and of ch. 529, Laws of 1921, granting women equal rights, and the constitutional amendment permitting women to vote, married women have been emancipated from the common-law rules which held them, in effect, in bondage to their husbands and deprived them of all property rights. Insofar as this state is concerned, the obligations of the married woman differ little from the obligations of a married man. Each of them, of course, is limited in the same way under the laws of marriage and divorce promulgated by the legislature. Certainly, this court, bearing in mind the history of our society, should not at this time impose a common-law rule that compels a married woman to take her husband’s surname when never before has this been required by law in this jurisdiction.

The trial judge and his counsel argue, however, that certain laws enacted by the legislature recognize that it was the understanding of the legislature that a married woman in all cases was compelled by law to take the surname of her husband. Typical among these statutes are the laws relating to the names of persons licensed to practice a profession or special skill. Among these statutes is sec. 256.30 (4), Stats., which governs the name to be used by practicing lawyers. It prohibits the practice of law under any other name than that used upon admission to the bar. The subsection ends, “This subsection does not apply to a change in name resulting from marriage or divorce.” The identical words are used in respect to the names of dentists (sec. 447.05 (7)), architects (sec. 443.01 (8)), dental hygienists (sec. 447.08 (7)), chiropractors (sec. 446.02 (6)), and medical doctors (see. 448.02 (4)).

It is argued from this that it was the legislature’s assumption, and therefore the law, that in all cases a name was changed upon marriage or divorce. The statutes in question, however, do not so provide, and in accordance with the common law of this state, as frequently explained by the attorney general, a change of name results from marriage only if, in accordance with common-law principles, the surname of a married woman’s husband is habitually used by her. In that event, when a change has taken effect by usage, a licensed person is permitted to use that changed name in the practice of a profession. This is no more than the recognition of a common-law rule that a person could change his name if it was not done for the purpose of fraud. The licensing laws recognize that a licensed person may change either his given name or his surname to one other than that under which he was originally licensed unless the changed name operates to compete unfairly with another practitioner or misleads the public to its detriment or to the detriment of a profession.

We believe that sec. 247.20, Stats., has a similar significance. That statute, a portion of our divorce laws, provides:

“247.20 Former name of wife. The court, upon granting a divorce in which alimony jurisdiction is terminated, may allow the wife to resume her maiden name or the name of a former deceased husband, or the name of a husband of a former marriage of which there are children in her custody, unless there are children of the current marriage as to whom the parental rights of the wife have not been terminated.”

That statute is applicable only if a married woman has, by usage, in fact adopted her husband’s name. If she has, then her maiden name can be “resumed” upon divorce in accordance with the provisions of the statute. The statute merely recognizes that by marriage a wife may have, through usage, effected a common-law change in her name. It does not indicate that she was compelled to do so.

The same statute and its limited significance was specifically recognized in XIII Opinions of Attorney General (1924), 632, 633, which pointed out that the statute recognized a situation where a name change had taken place, but that opinion also specifically held that the change of name was not required by marriage.

There are other laws of a similar nature scattered throughout the statutes. Each of those statutes has the same limited purpose, i.e., to recognize a change of name where one has in fact been accomplished. None of them purports to be based upon any theory that marriage ipso facto mandates a married woman to change her name.

We conclude that the statutes of Wisconsin are consistent with the common law, which does not require a wife to assume her husband's surname and when the husband’s surname was acquired, it was the result of usage and her holding out to the world that the surname is the same as the husband’s.⁴

Since we conclude in this case that Kathleen Rose Harney was never compelled to change her name, nor did she ever in fact adopt the surname Kruzel by usage, her petition, although ostensibly brought under sec. 296.36, Stats. 1971, amounted only to a request for judicial recognition that she had been correct in using her maiden surname in the past. The recognition of her right should have been given by the mandate of the court. Accordingly, the order is vacated and the cause remanded to the trial court for the entry of an order declaring her right to use the name of Kathleen Rose Harney.

Inasmuch as we conclude that a change in name was not involved in the instant case, we need not explore in depth the discretion that sec. 296.36, Stats. 1971, confers upon a trial judge in denying a change of name. It should be noted, however, that the discretion granted therein is extremely narrow. It provides that upon petition to the court any resident may have a name changed “if no sufficient cause is shown to the contrary.”

We conclude, as did the attorney general in XXI Opinions of the Attorney General (1932), 528, 530, that the statutes merely affirm, and do not abrogate, the common law. As our licensing statutes demonstrate, the common law should be permitted to operate unless evidence is put forward to show that some fraud or deception is intended by a change of name or unless, under sec. 296.36, Stats. 1971, for “cause shown.”

The New York Intermediate Appellate Court, in Application of Sara Ryan Halligan, supra, dealt with a similar problem. In that case, Judge SIMONS, speaking for the court, stated that the trial court:

“. . . noting the confusion that would result if a husband and wife were known by different names, held that since petitioner had Tailed to set forth any compelling reason for seeking a court-approved name change', the application must be denied. ... We think denial of the application was an improvident exercise of the court’s discretion.”

The New York statute provides that a name change shall be granted if the court shall determine that the petition is true and there is “no reasonable objection” to the change.

Under sec. 296.36, Stats. 1971, where the name change can be denied only if “sufficient cause is shown to the contrary,” it would appear that the ambit of discretion is even narrower than that accorded by the New York Civil Rights Law.

The points raised by the trial judge in the instant case in objection to the change of name could well be valid under proper circumstances, but only if proof were adduced to support the conclusions. The reasons given for the denial of the change of name are completely con-clusory and without any evidence of their applicability to the situation before the court. While the discretion which may be exercised by a trial judge in refusing a change of name is limited, to the extent that it is properly used it must be based on the underpinnings of the facts of the case and upon reasonable proof. Unsupported generalizations do not constitute a cause shown to deny a change of name. Under the common-law standard, a showing of fraud or misrepresentation akin to fraud is necessary to deny a change of name.

Because the facts of this situation do not require it, and since the law of Wisconsin does not require that a husband and wife have a common surname, the constitutional question posed by the briefs amici curiae is not reached.

By the Court. — Order vacated, and cause remanded for further proceedings consistent with this opinion.

Connor T. Hansen, J., concurs in the result.

1 Sec. 296.36, Stats. 1971, provides:

“296.36 Changing names, court procedure. Any resident of this state, whether a minor or of full age, may upon petition to the circuit court or county court of the county where he resides and upon filing a copy of the notice, with proof of the publication thereof, as required by s. 296.37, if no sufficient cause is shown to the contrary, have his name changed or established by order of the court. If the person whose name is to be changed is a minor under the age of 14 years, such petition may be made by: (a) Both parents, if living, or the survivor of them; (b) the guardian or person having legal custody of such minor if both parents are dead or if the parental rights have been terminated by judicial proceedings; (c) the mother, if the minor is illegitimate. Such order shall be entered at length upon the records of the court and a copy thereof, duly certified, shall be filed in the office of the register of deeds of such county, who shall make an entry thereof in a book to be kept by such register. The fee for filing and entering each such certified copy is $1. If the person whose name is changed or established was born or married in this state, a copy of the record, duly certified, shall be sent by the clerk of court to the state registrar of vital statistics accompanied by the fee prescribed in s. 69.24, which fee the clerk of court shall charge to and collect from the petitioner. The state registrar shall then correct the birth record, marriage record or both, and direct the register of deeds and local registrar to make similar corrections on their records. No person engaged in the practice of any profession for which a license is required by the state shall change his Christian or given name or his surname to any other Christian or given name or any other surname than that under which he was originally licensed in such profession in this or any other state, in any instance in which the state board or commission for the particular profession, after a hearing, finds that practicing under , such changed name operates to unfairly compete with another practitioner or misleads the public as to identity or otherwise results in detriment to the profession or the public. This prohibition against a change of name by a person engaged in the practice of any profession does not apply to any person legally qualified to teach in the public schools in this state, nor to a change of name resulting from marriage or divorce, nor to members of any profession for which there exists no state board or commission authorized to issue licenses or pass upon the qualifications of applicants or hear complaints respecting conduct of members of such profession. Any change of name other than as authorized by law is void.”

2 The legal legerdemain employed in Chapman to reach a just result is commendable, but it was a hard case making bad law. Verina Chapman, a married school teacher living in South Carolina, held a few shares of stock in a New York bank, which she had purchased under her maiden surname, Moore. In an excess of patriotic zeal during the Civil War, she was charged falsely with being a rebel, a confederate officer, a judge, and a member of Congress of the Confederacy. Under the Confiscation Act of 1862, an action was brought to confiscate her bank shares. The action was brought in her maiden name of Verina Moore, and notice was posted under that name. There was no answer to the libel, and confiscation was effected by default.

The New York court held that the default could be set aside because of insufficient notice, i. e., no person such as Verina Moore existed after marriage, only Verina Chapman. It therefore held there was no jurisdiction over the defendant. The case stands as an example of legal fabrication designed to effect a good result. Justice was done in the particular ease, but it ought have no precedential value. It should be noted, moreover, that its holding, that a married woman can only sue or be sued in her married name, is directly contrary to Lane v. Duchac (1889), 73 Wis. 646, 41 N. W. 962.

3 S. Bysiewiez and G. MacDonnell, Married Women’s Surnames, 5 Conn. L. Rev. (1973), 598, 601; M. Hughes, And Then There Were Two, 23 Hastings L. J. (1971), 233, 235; J. Lamber, A Married Woman’s Surname: Is Custom Law?, 1973 Wash. U. L. Q. 779, 781, 782; M. Spencer, A Woman’s Right to Her Name, 21 UCLA L. Rev. (1973), 665, 666; and Comment, The Right of a Married Woman to Use Her Birth-given Surname for Voter Registration, 32 Md. L. Rev. (1973), 409, 413-415.

4 Recent commentaries and decisions which follow the same line of reasoning adopted by this court are:

Custer v. Bonadies (1974), 30 Conn. Supp. 385, 318 Atl. 2d 639, 641; State ex rel. Krupa v. Green (1961), 114 Ohio App. 497, 177 N. E. 2d 616, 619; Stuart v. Board of Elections (1972), 266 Md. 440, 295 Atl. 2d 223, 226; Rice v. State (1897), 37 Tex. Crim. 36, 38 S. W. 801, 802; S. Bysiewicz and G. MacDonnell, Married Women’s Surnames, 5 Conn. L. Rev. (1973), 598, 602; K. Carlsson, Surnames of Married Women and Legitimate Children, 17 N. Y. L. Forum (1971), 552, 555; J. Lamber, A Married Woman’s Surname: Is Custom Law?, 1973 Wash. U. L. Q. 779, 783; P. MacDougall, Married Women’s Common Law Right to Their Own Surnames, 1 Women’s Rights L. Rep. 2 (No. 3, Fall/Winter 1972/73); Comment, The Right of a Married Woman to Use Her Birth-given Surname for Voter Registration, 32 Md. L. Rev. (1973), 409, 413-415; and Female Surnames and California Law, 6 UCD L. Rev. (1973), 405, 406.