In Re the Marriage of Gulsvig

498 N.W.2d 725, 1993 WL 120735

• Court: Supreme Court of Iowa
• Decided: June 11, 1993
• Docket: 92-607
• Status: Published

Opinions

SCHULTZ, Justice.

This is an appeal from a district court’s decree dissolving the marriage of Rhonda Lynn Gulsvig and Ronald Gerald Gulsvig. In a nunc pro tunc order, Rhonda’s surname was changed to Acosta. Prior to the decree, a child was born to the parties. Acting alone, Rhonda had the name James Joseph Acosta entered on the child’s birth certificate. The trial court awarded joint custody of James to the parties but gave Rhonda primary physical care of the child. On appeal, Ronald challenges the provision for visitation, the amount of child support, and the refusal of the trial court to change the child’s surname to Gulsvig. We affirm the decree dissolving the marriage, but modify the terms of the decree.

' The parties had lived together since February 1990 and were married on January 5, 1991. They separated in April 1991 and a trial on the Dissolution of Marriage Petition was held in September 1991.

Ronald, age twenty-five at the time of trial, is a high school graduate and a navy veteran. He resides with his mother and has primary physical care of his four-year-old daughter from an earlier marriage. Ronald is employed as a manager of a convenience store.

Rhonda, age twenty-six at the time of trial, is a high school graduate. She finished vocational-technical schooling to become a licensed-practical nurse and is employed in that field. Rhonda also has custody of another child from a previous marriage. We will discuss other pertinent facts as we address each issue.

I. Visitation. The trial court ordered that Ronald shall have visitation with James on alternating Saturdays and Sundays from 1:00 p.m. until 5:30 p.m. until James is eighteen-months old. At that time, Ronald is entitled to visitation every other week-end from 1:00 p.m. on Saturday until 5:30 p.m. the next day. When James becomes three years of age, Ronald is entitled to an additional one week summer visitation; at age five, summer visitation is increased to four weeks.

Ronald urges that this visitation is too limited and more restrictive than Rhonda originally requested. He requests immediate overnight visitation rights, mid-week visitation, alternating holidays, and two to four weeks visitation during the summer.

In our de novo review, we find that almost all of the suggestions set out in Rhonda’s brief regarding visitation are in the best interest of the child. We order that Ronald may have visitation with his son as follows:

1. Every other weekend from 6:00 p.m. on Friday to 6:00 p.m. on Sunday.

2. Alternating holidays which shall include New Years, Easter, Memorial Day, Fourth of July, Labor Day, Thanksgiving, and Christmas. All holidays will be defined to begin at 6:00 p.m. on the eve of the holiday and end at 6 p.m. on the holiday, with the exception of Christmas.

Christmas shall be shared by both parents on an alternating basis. Ronald’s visitation shall begin at 9:00 a.m. to 4:00 p.m. on Christmas Day one year, and begin at 4:00 p.m. on Christmas Eve and end at 9:00 a.m. on Christmas Day the alternate year.

Additionally, the child will be with Ronald every Father’s Day from 9:00 a.m. to 8:00 p.m., and be with Rhonda every Mother’s Day, regardless of the previous provision.

3. Ronald shall have a two-week summer visitation with the child when he becomes two years of age, and a four-week summer visitation when the child becomes five years of age, subject to the provision that the visitation should not exceed a two-week period at any time.

Ronald shall give notification of his planned summer visitation by May 1st of each year.

We reject Ronald’s suggestion that he should have midweek visitation rights and be given the first option to babysit for James. This does not prevent the parties from agreeing to make these arrangements; however, only Rhonda should instigate discussion on the subject.

II. Amount of support. The trial court set Ronald’s child support at $47 per week. Rhonda provides James’ health insurance. The parties do not dispute that Rhonda’s income after taxes is $1,082 and Ronald’s income after taxes is $909 per month. The court used the child support guidelines for one child, amounting to 22.5 percent of Ronald’s income, to arrive at the support award.

Ronald urges that the trial court failed to account for his support obligation to his daughter.¹ He receives no assistance in support for her. He maintains that his income should be reduced by the amount that he would be required to pay for his daughter if she were in her mother’s custody. Ronald’s argument runs contrary to our “child support guidelines.” The guidelines allow a deduction from gross income for “child support ... actually paid pursuant to court or administrative order” Supreme Court Order in the Matter of Child’s Support Guidelines (September 29, 1989). This is not to say that the trial court could not consider Ronald’s expenses for the support of the child within his custody. Those expenses are germane in determining his financial ability to pay, Gilley v. McCarthy, 469 N.W.2d 666, 668 (Iowa 1991), and may justify deviation from the support as determined by the guidelines.

In our de novo review, we cannot find special circumstances that would justify a deviation from the guideline amount. The court file, provided on appeal, does not contain a financial statement prepared by Ronald showing his personal expenses. Neither do we find such information in the testimony. Our guidelines create a rebut-table presumption that the amount of child support resulting from the application of the guidelines is the correct amount of child support to be- awarded. Id. Ronald has failed to present evidence of any special circumstances which would rebut this presumption. We affirm the child support award.

III. Name of the child. Ronald challenges the trial court’s ruling denying his request to change James’ surname to Gul-svig. After an evidentiary hearing, the trial court’s only finding was “[t]he child will probably spend the bulk of his time with the custodial parent and be involved in family situations with the petitioner [Rhonda].” The court then concluded it would be in the best interest of the child to maintain the surname of Acosta.

We first determine whether the trial court is authorized to change the name of a child in a dissolution action. In recent years, we have decided several instances involving subject matter jurisdiction in dissolution cases. Iowa Code chapter 674 (1991)² provides authority and direction in changing the names of adults and minors. Where other Iowa Code chapters provide exclusive jurisdiction, we have held the dissolution court lacks subject matter jurisdiction to enter orders involving the other remedy. In re Marriage of Carrico, 284 N.W.2d 251, 255 (Iowa 1979) (dissolution court may not direct Department of Social Services (DSS) to terminate parental rights); In re Marriage of Snyder, 276 N.W.2d 402, 406 (Iowa 1979) (dissolution court could not find child to be in need of assistance within meaning of Iowa Code section 232.61(1) (1979)).

We have also held the dissolution court lacked subject matter jurisdiction to expand authority of an administrative agency beyond that established by statute. Iowa Dep’t of Social Serv. v. Blair, 294 N.W.2d 567, 570 (Iowa 1980) (dissolution court may not order DSS to maintain involuntary protective supervision over minor children of the parties); accord, In re Marriage of Corbin, 320 N.W.2d 539, 542 (Iowa 1982) (dissolution court has authority to place temporary custody with DSS where DSS has consented to its custody and supervision). However, these cases are not dispos-itive because chapter 674 does not specify that its remedy is exclusive and does not involve an administrative agency.

Other jurisdictions have addressed the issue of whether a dissolution court has authority to change the name of a child. Nebraska has a statute that gives its courts authority “to include such orders in relation to any minor children and their maintenance as shall be justified_” Relying on this statute and its equity jurisdiction, it held it had authority to change a child’s surname in a dissolution action. Cohee v. Cohee, 210 Neb. 855, 317 N.W.2d 381, 384 (1982). See also In re Marriage of Bresson, 102 Ill.2d 303, 80 Ill.Dec. 294, 296, 465 N.E.2d 85, 87 (1984) (child’s name is a matter incident to custody of child and divorce court has subject matter jurisdiction); In re Marriage of Nguyen, 684 P.2d 258, 260 (Colo.Ct.App.1983), cert. denied, 469 U.S. 1108, 105 S.Ct. 785, 83 L.Ed.2d 779 (1985) (dissolution court has common-law authority to change name); Hall v. Hall, 30 Md.App. 214, 351 A.2d 917, 922 (1976) (may change name in either statutory or judicial proceeding); accord, Maria E. v. Anthony E., 125 Misc.2d 933, 481 N.Y.S.2d 227, 228 (N.Y.Fam.Ct.1984) (family court had authority to change name in paternity proceedings).

Other jurisdictions have denied a name change in a dissolution action holding that name change statutes provided the exclusive remedy. Viola v. Fundrella, 241 N.J.Super. 304, 574 A.2d 1036, 1038-39 (Ch.Div.1990); Mayor v. Mayor, 17 Conn.App. 627, 554 A.2d 1109, 1111 (1989); Lone Wolf v. Lone Wolf, 741 P.2d 1187, 1192 (Alaska 1987).

Our chapter on Dissolution of Marriage Act, Iowa Code chapter 598, provides authority to change a party’s name, Iowa Code section 598.37, but does not provide specific authority to change a child’s name. When we examine our custody' statute, Iowa Code section 598.41, we believe that authority to change a child’s name may be inferred. Section 598.41 provides the court with broad discretion in determining custody and the physical care of a child and expresses a preference for joint custody. Each custodian has equal participation in decisions affecting “the child’s legal status.” Iowa Code § 598.41(2). We believe an infant child’s name is an incident of the child’s “legal status.” Accordingly, we hold the trial court possessed subject matter jurisdiction in this respect.

Ronald argues that the custom in this country has always been that a child born in lawful wedlock receives the surname of the father at birth. He points out that Acosta is the surname of Rhonda’s second husband, who has no relationship to James. Ronald urges that the relationship between a noncustodial parent and child is precarious; therefore, this court should take extra steps to insure maximum physical and emotional contact between himself and the child. He urges that it is important for his son to realize that he is connected with his father and that the use of Gulsvig as his last name would verify this connection.

Rhonda urges that it would be in James’ best interest to maintain the surname given him. She points out that Acosta is the same name as James’ mother and sister and to retain this surname would maintain the appearance of a family unit.

We first address Ronald's claim concerning custom. Ronald cites cases or statutes supporting a principle of law or presumption that a child should bear the surname of his father. We agree with the holdings of other jurisdictions that the presumption that a child bear the surname of his father is outdated and therefore rejected. In re Andrews by and through Andrews, 235 Neb. 170, 454 N.W.2d 488, 491 (1990); Application of Rossell by Yacono, 196 N.J.Super. 109, 481 A.2d 602, 606 (Law Div.1984); In re Marriage of Schiffman, 28 Cal.3d 640, 169 Cal.Rptr. 918, 922-23, 620 P.2d 579, 583 (1980); contra Overton v. Overton, 207 Mont. 292, 674 P.2d 1089, 1091 (1983). This conclusion is similar to our repudiation of the inference that the best interests of young children are served by placing the children in their mother’s custody. In re Marriage of Bowen, 219 N.W.2d 683, 688 (Iowa 1974). We observed that the “real issue is not the sex of the parent.” Id. The trial court correctly determined that the real issue is the best interest of the child. Iowa Code § 598.41; Cohee, 317 N.W.2d at 384.

We also conclude the mother does not have the absolute right to name the child because of custody due to birth. Petition of Schidlmeier by Koslof 344 Pa.Super. 562, 496 A.2d 1249 (1985); see also Cohee, 317 N.W.2d at 384 (no presumption exists in favor of custodial parent); Jacobs v. Jacobs, 309 N.W.2d 303, 305 (Minn.1981) (neither parent has superior right to determine initial surname of his or her child). Consequently, Rhonda should gain no advantage from her unilateral act in naming James.

Factors utilized in considering the best interest of the child are numerous. See Andrews, 454 N.W.2d at 492-93; Application of Saxton, 309 N.W.2d 298, 301 (Minn.1981), cert. denied, 455 U.S. 1034, 72 L.Ed.2d 152 (1982). Here, the relevant competing factors are simple. This is not a case where a party seeks to change a surname given to a child by the agreement of both parties. The mother’s surname is favored because the child is physically present in the mother’s home along with a half-sister bearing the same surname. On the other hand, the father provides support, exercises visitation, and has a strong interest in the preservation of his parental relationship which could be weakened if the child did not bear his surname. When these facts nearly or do offset each other, judicial discretion must be exercised with caution and other solutions must be explored.

The parties considered, but could not agree, on another solution. The parties each testified that a hyphenated name was considered; however, the trial court did not address this solution. In recent years courts have recognized that a hyphenated name of both parents’ surnames may best serve the interest of a child. Andrews, 454 N.W.2d at 493; Rio v. Rio, 132 Misc.2d 316, 504 N.Y.S.2d 959, 965 (N.Y.Sup.Ct.1986); Cohee, 317 N.W.2d at 384; Laks v. Laks, 25 Ariz.App. 58, 61, 540 P.2d 1277, 1280 (1975). We believe that selecting a hyphenated name in this case would pour salt in the wounds of one or both of the parties and eventually would affect James. We reject this solution.

We have considered Rhonda’s name changes in the past six years. We accept her assurance that she will retain the name Acosta if she remarries. Her suggestion that Ronald receive generous visitation provides an indication that she wants James to maintain strong ties with Ronald. This generous visitation mitigates Ronald’s concern that he and James retain a strong relationship. If Ronald exercises the visitations afforded him, James will not lose this bond.

We, as did the trial court, find James’ best interest will be served by retaining the surname Acosta. Accordingly, we affirm the trial court on this issue.

IV. Summary. In summary, we affirm the granting of the dissolution. We modify the visitation order. We affirm the child support order and the trial court’s refusal to change the child’s surname. We further hold that Ronald shall pay one-half of the cost of this appeal.

AFFIRMED AS MODIFIED.

All Justices concur except HARRIS, J., who dissents, and McGIVERIN, C.J., and ANDREASEN, J., who join HARRIS’ dissent, and SNELL, J., who dissents separately.

1 . Ronald also argues that the guidelines violate certain constitutional protections. However, he neither raised this issue at trial nor in his post-trial motions. On appeal, we cannot review an issue not presented to the trial court. Beitz v. Horak, 271 N.W.2d 755, 759 (Iowa 1978).

2 . All references are to the 1991 Iowa Code.