In Re Reben

342 A.2d 688, 1975 Me. LEXIS 374

• Court: Supreme Judicial Court of Maine
• Decided: July 18, 1975
• Status: Published

Opinions

WEATHERBEE, Justice,

On July 19, 1973 the appellant,. Susan E. Reben, filed a petition for change of name in the Probate Court of Cumberland County. A hearing was held on September 12, 1973 before the Judge of Probate. That Judge issued his decree on October 16, 1973 denying the relief sought in the petition.

The Petitioner appealed directly to this Court from the order.¹ Pursuant to 4 M. R.S.A. § 401, the Judge of Probate has reported to us the facts involved in this appeal. The full boundaries of the question before the Court are presented by these reported facts:

The Petitioner was born under the name Susan E. Hirsch. Upon marrying Howard T. Reben, now her attorney in this controversy, the Petitioner took the name of Susan E. Reben. Approximately six months prior to the hearing in Probate Court and several months after her assumption of the surname Reben, the Petitioner decided that she wished to change her last name back to her birth name. The Petitioner believes that a married woman should not be compelled to assume her husband’s surname. Consequently, the Petitioner now uses her birth name for all purposes, “including”, the Judge’s report says, “two bank accounts, numerous credit cards, school registration, driver’s license, social security, auto registration, home mortgage and voter registration”. The Judge’s reported factual statement concludes by noting that no fraudulent purpose was a factor in his denial of her request for a name change.

On appeal, the appellant first alleges that she has a right under the common law to choose any name she wishes, unless motivated by a fraudulent purpose, and that as the Judge of Probate found no fraudulent purpose, his denial of her petition was an abuse of discretion. Second, she asserts that the Judge’s ruling denies her equal protection of the laws by unconstitutionally discriminating against her as a woman.

We sustain her appeal. In doing so, however, we find it unnecessary to reach the constitutional question. See, e. g., State v. Good, Me., 308 A.2d 576 (1973).

There is a remarkable sparsity here of both decisional and statute law concerning the status of a married woman’s name. This opinion, also, will leave many questions unanswered, foremost, probably, the question whether a woman takes the surname of her husband at marriage by operation of law. Traditionally this has been the almost unanimous practice in this state, yet no statute has required it and no decision of this Court has ever affirmed it as being mandated by the common law.²

We are satisfied as to the wisdom of the policy which dictates that we should, except in compelling situations, decide only issues which are necessary to the disposition of the case before us. We consider that it is particularly important that we exercise judicial restraint in an ex parte hearing such as this where we have had the benefit of only the Petitioner’s arguments and where possible areas of wide personal and public concern are yet unexplored.

The ultimate question of whether the woman takes her husband’s surname by operation of law is not necessary to this decision as this Petitioner agrees that she did take it (but as a result, she says, of her own choice to do so) and as her complaint is that the Judge declined to restore her maiden ■ name judicially. It seems to us that that ultimate question is primarily one of governmental policy which can best be determined by legislative action. If it must be decided by the Court, the decision should come as the law of a case, not as mere dictum, and preferably in an adversary proceeding where we will have the benefit of argument on both sides of the controversy.

To resolve the abuse of discretion issue now before us, we must examine and interpret for the first time the language of the name change statute under which the appellant’s petition was filed.

The Maine Legislature enacted our first statute authorizing a judicial change of name — the predecessor of our present statute — in 1873. The original statute, P.L. 1873, ch. 97, read:

“Sect. 1. Whenever any person in this state desires to change his or her name, such person may petition therefor to the judge of probate of the county in which he or she resides; and such judge of probate is hereby authorized and empowered to change the name of such person, and shall make and preserve a record thereof.

Sect. 2. Whenever the judge of probate before granting any such petition, deems it expedient that notice thereof be given, such notice shall be given as the judge may order.

This language has since evolved to become 19 M.R.S.A. § 781, upon which the present petition is based.

“If a person desires to have his name changed, he may petition the judge of probate in the county where he resides; or, if he is a minor, his legal custodian may petition in his behalf, and the judge, after due notice, may change the name of such person and shall make and preserve a record thereof.” (Emphasis added.) ³

The development of the custom of identifying individuals by names no doubt begins before the time of recorded history, but the factors which engendered a need for a recognizable symbol of identification can easily be understood. With the appearance of village society in Europe and the development of the laws of inheritance, real estate title and contracts, and the use of promissory commercial paper, some degree of reliance upon the names of persons became indispensable.

The New York Court of Appeals examined the ancient history of the use of surnames and the common law of England, which had grown largely from the prevailing customs, in Smith v. United States Casualty Co., 197 N.Y. 420, 90 N.E. 947 (1910). The Smith Court concluded that at early common law a person could change his name non judicially, provided this was not done with fraudulent intent. Our own research has satisfied us that this was the state of the common law. E. g., Linton v. First National Bank, 10 F. 894 (W.D.Pa.1882); Mark v. Kahn, 333 Mass. 517, 131 N.E.2d 758 (1956); In re Ross, 8 Cal.2d 608, 67 P.2d 94 (1937).

It can easily be understood why the early, casual, common law practice of changing one’s name at will would have resulted in confusion and uncertainty as our American society moved steadily toward complexity and urbanization. The necessity of being able to ascertain an individual’s correct name and identity must inevitably have appeared in business, real estate transactions, litigation, political activity, and law enforcement. The confident statement of the English Chief Justice, Lord Abbott, in Luscombe v. Yates, 5 Barn. & Ald. 544, (1822) that

“[a] name assumed by the voluntary act of a 'young man at his outset into life, adopted by all who knew him and by which he is constantly called, becomes for all purposes that occur to my mind as much and effectually his name as if he had obtained an act of Parliament to confer it on him”

no longer provided a satisfactory answer to late 19th century North American society. The descendants of the young man of whom the late Chief Justice spoke could no longer be expected to live, buy and sell, litigate, beget, die and pass by inheritance in the community where they were born, where everyone knew them and called them by name.

We note that in the opinion from which we have quoted the English Chief Justice —as in many other opinions upholding the individual’s right to use the name of his choice — the party had used and had been known exclusively by the adopted name for a period of many years. We find, in the older cases upholding the individual’s common law right to change his name nonjudi-cially, such language as “. , . when his neighbors and the community have acquiesced and recognized him by his new designation, that becomes his name” ⁴ and “. . . for many years transacting his business and holding himself out to his friends and acquaintances thereunder with their acquiescence and recognition.⁵ It must have occurred to the Maine Legislature to wonder — as it does to us — how long the individual, especially the new arrival in town, would be required to use the new name before he and people dealing with him could feel assured that it had replaced his old one, had not been motivated by fraud, and had become his legal name — and to question the acceptability of such uncertainty as our social structure became more urban and more transient.⁶ We have no doubt that the 1873 statute was intended to put these uncertainties to rest.

The Legislature’s use of the language “his or her name” and “in which he or she resides” leaves no doubt that it intended to make the statutory procedure available to women as well as men but its intention to extend the privilege to married women is less clear.

At common law a married woman had no separate identity before the law. In the eyes of the old common law, a husband and wife became one person upon marriage and that person was the husband. Mellott v. Sullivan Ford Sales, Me., 236 A.2d 68, 70 (1967). Although the common law decisions frequently spoke of a “person’s” right to change “his” name, our research has revealed no case where the exercise of this right at common law by a married woman was either affirmed or disapproved —a situation which might, of course, be explained by the absence of occasion for 18th and 19th century married women to exercise the right. In other words, it is unclear whether American married women (and especially Maine married women) did or did not have the right to change their names at common law.

The old common law concept of a married woman’s loss of identity was gradually eroded by positive legislation early in our statehood. P.L.1821, ch. 57, § 9, empowered courts to authorize an abandoned married woman to contract and sue in her own name. P.L.1844, ch. 117, permitted married women to own and hold property not acquired from their husbands in their own names. P.L.1852, ch. 227, § 1 empowered them to dispose of such property. In 1866 the Legislature gave them the power to make valid and binding contracts and to enforce them (P.L. 1866, ch. 52). Thus, by 1866 the married woman stood at least nearly equal before the law.

This Court has given strict construction to these statutes which granted extended rights to women in derogation of the common law, following long accepted principles of judicial construction. In Haggett v. Hurley, 91 Me. 542, 40 A. 561 (1898) the Court felt that it could not construe P.L. 1866, ch. 52 as authorizing a married woman to enter by contract into the status of a business partner of her husband. In Cummings v. Everett, 82 Me. 260, 19 A. 456 (1890) this Court held that although P.L. 1866, ch. 52 removed the disabilities of coverture, it was not clear that it was intended also to remove the disabilities of infancy so as to empower married female minors to contract.

Unsure as we are as to a married woman’s common law right to name change, we apply the same strict rule of construction here, but the circumstances in the present case are substantially different from those in Haggett and Cummings. In Haggett and Cummings the Legislature had given married women a right not previously enjoyed by them and the Court felt it should not extend the right beyond the clear intent of the statute. Our present question is not the extent of the name-change right granted but to whom the 1873 Legislature intended to give it. The statute’s words themselves are plain. The Legislature gave the privilege to “persons” —to both men and women. The married woman had by this time become a “person” in the full legal sense. While the concept of a single marital entity persisted as a fiction beyond 1866 to the extent that neither spouse could sue the other for tort (Abbott v. Abbott, 67 Me. 304 (1877)), it must have become clear to the Legislature that the husband was no longer that “one person”. Nothing in the Legislature’s language suggests that it intended to limit the privilege to unmarried women. In view of the earlier series of enactments which had, in a piecemeal manner, removed most, at least, of a married woman’s disabilities, we cannot read into the 1873 statute an unexpressed intention to exclude married women from its operation. We believe that the situation as to a married woman’s improved status was such that if the 1873 legislators had intended to exclude married women they would have said so.

The Petitioner has urged us that the statute with which we are concerned was not intended to be an exclusive method of name change but was only to augment the common law by providing an alternate method for those persons who wished a public record of their desire to adopt new names. In the posture in which this case is presented to us, we do not reach this contention directly. The Petitioner chose to petition the Judge of Probate under the statute. He denied her petition. The only question presented by this appeal is the correctness of his action under the statute. However, in our study to interpret the statute we find the question of the present survival of the common law right and the question of the true status of the statutory-authority to be inescapably interwoven.⁷

If, as the Petitioner contends, the Legislature had intended the statute only to provide a recording procedure, we would have expected the Legislature to have directed that the Judge “shall change the name of such person and shall preserve a record thereof.”

Instead, the original statute said that the Judge of Probate is ‘‘authorized and empowered” to change the name and he “shall make and preserve a record thereof.” (Emphasis added.) The present statute reads that the Judge “may” change the name and “shall make and preserve a record thereof.” (Emphasis added.) The inference to be drawn from the choice of language of these Legislatures seems clear to us. The Legislatures mandated that a record must be kept if the name was changed but they intended the Judge to exercise a discretion as to whether the petition for change should be granted.

The statute contains no criteria for the exercise of such a discretion by the Judge. It would be unreasonable to assume that the 1873 Legislature intended to give the Judge a completely unbridled discretion to be exercised on whim or caprice. We consider that the Legislature may be presumed to have acted with knowledge of the existing state of the common law (Blier v. Inhabitants of Town of Fort Kent, Me., 273 A.2d 732 (1971); 73 Am.Jur.2d Statutes § 184 (1974)), as to changes of name, the inadequacies of which must have prompted the enactment of this legislation. We are convinced that the 1873 Legislature failed to include criteria for the judge’s guidance because it was intended that the common law conditions (i. e., lack of fraudulent intent) under which a person could change his name should constitute the standards for the exercise of the judges’ discretion under the new statute. The Legislature’s intent, we believe, was not to derogate the common law but to codify it.

We cannot accept the proposition that the Legislature, which fashioned a procedure for judicial change of name, with a permanent record, supplying the obvious deficiencies of the common law procedure, would intend the old procedure to survive and to function side by side with the one it had just created. It seems far more reasonable to conclude that the Legislature intended the statutory method to incorporate the essential philosophy of the earlier practice and to be a replacement of the common law procedure.

We note further that our original name change statute read:

“Whenever any person in this state desires to change his or her name . ” (Emphasis added.)

We find in the 1873 Legislature’s choice of words even stronger evidence of intention of exclusivity of procedure than is found in the language which eventually evolved. This new judicial method, we believe, was to be — as the 1873 statute indicated — the way in which a name may be legally changed.⁸

We are aware that many other jurisdictions have held that their somewhat similar statutes were enacted only as aids to the common law and were not intended to repeal the common law. E. g., Clinton v. Morrow, 220 Ark. 377, 247 S.W.2d 1015 (1952); Weingand v. Lorre, 231 Cal.App. 2d 289, 41 Cal.Rptr. 778 (1964); Smith v. United States Casualty Co., supra; Annot., 110 A.L.R. 219 (1937). Some distinction can be found in the fact that some of the statutes in these other jurisdictions impose conditions, unknown to the common law, upon the granting of a judicial change of name. The statute, which the Court in In re Taminosian, 97 Neb. 514, 150 N.W. 824 (1915) held to create only an additional method of name change, required a finding “that there exists proper and reasonable cause for changing the name of the petitioner.” The New York Civil Rights Law, section 63, discussed in Application of Douglas, 60 Misc.2d 1057, 304 N.Y.S.2d 558 (Sup.Ct.1969), required that the court be satisfied “that there is no reasonable objection to the change of name proposed.”

Certainly a valid argument can be made that these statutes set up complete, new procedures, whereas our own statute when enacted would have been incomplete and inoperative without the absorption from the common law of its standards for the exercise of judicial discretion.

The Massachusetts Court interpreted a statute which provided that

“[n]o change of the name of a person, except upon the adoption of a child under this chapter or upon the marriage or divorce of a woman, shall be lawful unless made by said court for a sufficient reason consistent with public interests.” Petition of Merolevitz, 320 Mass. 448, 449, 70 N.E.2d 249, 250 (1946).

The Merolevitz Court recognized the acceptability of a person’s use of an adopted name for social and business purposes but stated that the statutory procedure was “the only method by which one can change his name with legal effect.” 320 Mass, at 450, 70 N.E.2d at 250. In Petition of Buyarsky, 322 Mass. 335, 77 N.E.2d 216 (1948) that Court said that the statute was not intended to restrict a petitioner’s choice of name and that the statutory limitation that it be “consistent with public interests” was intended to be a restatement of the common law principle that the petitioner’s intent must not be fraudulent. The Massachusetts Court later, in Mark v. Kahn, 333 Mass. 517, 131 N.E.2d 758 (1956), held that the common law method of name change still survives and that the purpose of the statute was to provide a record.

While we have given respectful consideration to the holdings of the courts which take this view, we find little in their interpretations of their statutes which aids us as to our own.

It may be that some of the decisions which hold that the common law method of name change survives after statutory enactment were not distinguishing, as we do, between a person’s true or legal name and the name by which he chooses to be known in social life and in business dealings. We recognize that a person may informally adopt a stage name, a nom de plume, or a business name or one for social purposes which is not his true name and, while using such a name, may obligate himself legally and, under certain conditions, enter into agreements which are binding upon other parties. Lipman v. Thomas, 143 Me. 270, 272, 61 A.2d 130, 131 (1948); Huey v. Passarelli, 267 Mass. 578, 166 N.E. 727 (1929). On the other hand, there are situations in which the public interest entitles the State to demand that a person identify himself by his true, legal name in connection with his performance of certain activities.

The nonjudicial name change permitted by the common law was always subject to a possible judicial determination that the attempted non judicial change had failed because it was motivated by fraud, that is, by a purpose to deceive. We are convinced that our own original statute was intended to bring the ancient principles into consonance with modern needs by permitting the individual the same right but with a record, a definite date of change, and a determination in advance as to presence or absence of purpose to deceive. The common law method which would serve no further purpose was superseded.

We construe the present statute as necessarily including several implied standards in addition to that of absence of fraudulent intent. Subsequent to the original enactment a requirement of due notice was added by amendment. P.L.1893, ch. 262. We interpret this as a belated conclusion by the Legislature that the proposed name change should be denied if it is found that it would substantially interfere with the rights of others. In P.L.1876, ch. 59 the Legislature also added the provision permitting the legal custodians of a minor to petition in his behalf. While no specific standard was imposed for the guidance of Judges of Probate, they are necessarily implicit in the court’s traditional concern for the welfare of the child involved and the sensibilities of those persons whose family responsibilities and rights may be affected. Finally, the Legislature cannot have, expected the Judge of Probate to demean his office on request by ordering the adoption of a name of a scandalous or frivolous nature.

We hope that our Legislature, if it does attempt to clarify this sensitive and obscure area of the law, will choose to define further what rights may exist in persons other than a party seeking a new name— rights which must be respected by a Judge of Probate acting on a petition for change of name. Certainly this Court should refrain from endeavoring to amplify the Legislature’s basic policy positions in non-adversary proceedings unless it is necessary to do so to reach a decision.

No further searching for unspecified legislative intent is necessary in this case. If one spouse has the right to object to the other’s petition, Mr. Reben’s appearance here as her attorney clearly demonstrates his nonopposition. We infer from the record that there are no children with possible adverse interests. If any other persons had rights which entitled them to object, they failed to do so, after public notice. The fundamental right of the Court not to be required to decree a name of a scandalous or frivolous nature is obviously not endangered. The Judge also found this Petitioner was not motivated by a fraudulent purpose.

The failure of the Judge to grant the petition was an abuse of discretion.⁹

The entry will be:

Appeal sustained.

Case remanded to the Probate Court for action consistent with this opinion.

WERNICK, J., did not sit. POMEROY and ARCHIBALD, JJ., concurring. DUFRESNE, C. J., dissenting. DELAHANTY, J., concurring in dissent.

1 . While the notice of appeal is directed to the Supreme Judicial Court, we treat the appeal as properly before the Law Court as required under 4 M.R.S.A. § 401.

2 . Decisions in other jurisdictions are not in agreement as to this. For discussion of the opposing points of view on this question, see People, ex rel. Rago v. Lipsky, 327 Ill.App. 63, 63 N.E.2d 642 (1945) ; Stuart v. Board of Supervisors of Elections, 266 Md. 440, 295 A.2d 223 (1972) ; State ex rel. Krupa v. Green, 114 Ohio App. 497, 177 N.E.2d 616 (1961) ; Kanowitz, Women and the Law: The Unfinished Revolution (1969) ; 57 Am. Jur.2d Names § 9 (1971) ; 65 C.J.S. Names § 3c (1966) ; Kohout, The Right of Women to Use Their Maiden Names, 38 Albany L. Rev. 105 (1973) ; Lamber, A Married Woman’s Surname: Is Custom Law? 1973 Wash.U.L.Q. 779 (1973).

3 . Language including minors appeared in P.L. 1876, ch. 59. The contraction of the phrase “his or her” to “his” was undertaken in 1893. (P.L.1893, ch. 262.) Such rephrasing, in view of our long standing rule of statutory construction (1 M.R.S.A. § 71(7) ; formerly R.S.1840, ch. 1, § 3(H)) that use of words of the masculine gender may include the female, did not alter the intended inclusion of females. The statute now also eon-tains an additional sentence added by P.L. 1973, ch. 451 concerning a filing fee of $5.00.

Judicial changes of name are also authorized in connection with the granting of divorces (19 M.R.S.A. § 752) and adoptions (19 M.R.S.A. §§ 531-533).

Authority to grant changes of name is also included in the general powers given Judges of Probate by 4 M.R.S.A. § 251.

4 . Laflin & Rand Powder Co. v. Steytler, 146 Pa. 434, 442, 23 A. 215, 217 (1892).

5 . Smith v. United States Casualty Co., supra, 197 N.Y. at 423, 90 N.E. at 948.

6 . In fact, it is evident that our very first Legislature considered the common law procedure less than satisfactory because one of its first acts was the enactment of Special Laws of 1820, ch. XVI which “allowed” seven men and women to “take” new names which “shall hereafter be their only proper names.” Succeeding legislatures received hundreds of requests for special legislation allowing them to take new “proper” or “proper and legal” names. The 1870 Legislature “allowed” 34 changes of name, in 1871 there were 30 allowed, in 1872 there were 29, and in 1873 there were 28. P. & S.L.1870, chs. 397, 403, 428; P. & S.L.1871, ch. 701; P. & S.L.1872, chs. 128, 165; P.& S.L.1873, chs. 239, 321, 389.

7 . The Petitioner’s argument points this up. She asserts that she has already effectively changed her name nonjudicially and now, judicially, seeks only a record of this fact. She then concedes that the Judge does have a discretion as to changing her name judicially (i. e., as to the existence of fraudulent intent). If her position is correct, what would be her legal name if the Judge — for record purpose only, as she says — had found fraudulent intent and had refused to order it changed? Or, if the Judge had ordered her name changed and she later decided to adopt still another name without resort to the Probate Court?

8 . We note that the Legislature, indulging in the prerogative of the sovereign, continued occasionally to change a person’s name by Private & Special Law. See P. & S.L.1889, ch. 330.

9 . The harshness of this legal expression “abuse of discretion” is softened considerably by the fact that this is the first time that this century-old statute has been interpreted by this Court for the guidance of Judges of Probate.