In Re Zhan

37 A.3d 521, 424 N.J. Super. 231
CourtNew Jersey Superior Court Appellate Division
DecidedFebruary 14, 2012
DocketA-6113-10T1
StatusPublished
Cited by1 cases

This text of 37 A.3d 521 (In Re Zhan) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Zhan, 37 A.3d 521, 424 N.J. Super. 231 (N.J. Ct. App. 2012).

Opinion

37 A.3d 521 (2012)
424 N.J. Super. 231

In the Matter of Application of Xiangjing ZHAN to Change the Name of Honghong Zhan, a Minor, to Michelle Honghong Zhan.

No. A-6113-10T1

Superior Court of New Jersey, Appellate Division.

Argued January 18, 2012.
Decided February 14, 2012.

*523 Susanne Peticolas, Newark, argued the cause for appellant (Gibbons P.C. attorneys; Ms. Peticolas, on the brief).

Before Judges PAYNE, REISNER and HAYDEN.

The opinion of the court was delivered by

REISNER, J.A.D.

In this appeal, we decide whether a permanent resident alien may obtain a legal change of name pursuant to N.J.S.A. 2A:52-1 to -4 (name change statute), or whether the statute limits that relief to United States citizens. We hold that the statutory right to obtain a legal name change is not limited to United States citizens and, therefore, we reverse the trial court order dismissing appellant's application.

I

Appellant and his minor daughter are lawful permanent resident aliens. Appellant filed a verified complaint seeking to change his daughter's first name from "Honghong" to "Michelle." See R. 4:72-2 (authorizing parents to commence name change actions for their minor children without appointment of a guardian ad litem). The trial court dismissed the complaint because the minor was "not a U.S. citizen." Distinguishing Application of Pirlamarla, 208 N.J.Super. 112, 504 A.2d 1238 (Law Div.1985), which held that the name change statute applied to permanent residents as well as citizens, the judge reasoned that Pirlamarla was a "pre-9/11 case." Without citing any specific statutory provision or case law, the judge opined that the federal "Immigration and Naturalization Control Act" pre-empted state law on the issue of name changes, and stated his view that for security reasons, "[t]he Country needs to identify who [is] here under the names that they have."

II

On this appeal, appellant challenges the trial court's decision as contrary to the name change statute, a misconstruction of federal law, and a violation of constitutional Equal Protection and Due Process principles. Because we agree with appellant's statutory arguments, we need not address the constitutional issues.

A

The common law allows name changes without judicial approval and without a public record of the change. Absent a criminal or fraudulent purpose, an adult can "legally and properly change his or her name at will and without need of judicial approval simply by using the desired name in ordinary life." Matter of Bacharach, 344 N.J.Super. 126, 130, 780 A.2d 579 (App.Div.2001). The name change statute provides a more formal means to adopt a new name and "provides a definitive and swift procedure for public recordation." Id. at 130-31, 780 A.2d 579.[1] However, the statute is to be construed in light of the common law and does not abrogate it. Id. at 131, 780 A.2d 579; Egner v. Egner, 133 N.J.Super. 403, 406, 337 A.2d 46 (App.Div.1975); Application of Lawrence, 133 N.J.Super. 408, 411, 337 A.2d 49 (App.Div.1975).

*524 We review the trial court's decision for abuse of discretion, but because the denial of an application for a name change "is contrary to the common law and statutory policy in favor of granting such relief," the court must have "[s]ubstantial reasons" to deny an application. Bacharach, supra, 344 N.J.Super. at 133, 780 A.2d 579. Apart from attempted crime or fraud, we have previously approved very limited bases for denying a statutory name change application. For example, a court need not approve a change to an obscene name. See Bacharach, supra, 344 N.J.Super. at 132, 780 A.2d 579; In re Application of M., 91 N.J.Super. 296, 298, 219 A.2d 906 (Cty.Ct. 1966). However, a judge may not deny a name change application "based on his or her personal views or philosophy." Bacharach, supra, 344 N.J.Super. at 132, 780 A.2d 579; (citing Application of Lawrence, supra, 133 N.J.Super. at 413-14, 337 A.2d 49). In Bacharach, a woman applied for permission to take the surname of her same-sex partner. Id. at 128, 780 A.2d 579. We reversed the trial court's decision to deny the application based on its view that granting the application would be contrary to public policy. Id. at 136, 780 A.2d 579.

Other cases have likewise rejected an assortment of policy-based or philosophical objections to individual name changes, in favor of the common law and legislative policies allowing persons to choose their own names. See Matter of Eck, 245 N.J.Super. 220, 584 A.2d 859 (App.Div. 1991) (finding that absent fraud or other improper purposes, a male applicant was free to adopt a traditionally "female" name); Application of Ferner, 295 N.J.Super. 409, 685 A.2d 78 (Law Div.1996) (applicant was permitted to change her full name to a single name); In the Matter of Jackson, 177 N.J.Super. 591, 593, 427 A.2d 139 (Law Div.1981) (permitting a prison inmate to take an Islamic name, based on First Amendment principles and "the general rule that a person may call himself by whatever name he desires except for fraudulent or criminal purposes").

Against that background, we examine the text of the name change statute. By its terms, the statute permits application by "any person"[2] and does not limit relief to citizens. The statute requires disclosure of criminal convictions or pending criminal charges, and requires a certification that the action is not being filed to avoid creditors or perpetrate a fraud. But it does not address the applicant's immigration status. In pertinent part, the statute reads:

Any person may institute an action in Superior Court, for authority to assume another name. The complaint for a change of name shall be accompanied by a sworn affidavit stating the applicant's name, date of birth, social security number, whether or not the applicant has ever been convicted of a crime, and whether any criminal charges are pending against him and, if such convictions or pending charges exist, shall provide such details in connection therewith sufficient to readily identify the matter referred to. The sworn affidavit shall also recite that the action for a change of name is not being instituted for purposes of avoiding or obstructing criminal prosecution or for avoiding creditors or perpetrating a criminal or civil fraud. If criminal charges are pending, the applicant shall serve a copy of the complaint and affidavit upon any State or county prosecuting authority responsible for the prosecution of any *525 pending charges. A person commits a crime of the fourth degree if he knowingly gives or causes to be given false information under this section.
[N.J.S.A. 2A:52-1 (emphasis added).]

The applicable Court Rule concerning name change applications also does not address the citizenship of applicants. See R. 4:72-1 to -4.

Ordinarily, we interpret a statute in accordance with its plain meaning, ascribing "to the statutory words" their ordinary significance. DiProspero v. Penn, 183 N.J. 477, 492, 874 A.2d 1039 (2005). The term "any person" is clearly broader than the term "citizen." For example, in Department of Labor and Industry v. Cruz, 45 N.J. 372, 212 A.

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Bluebook (online)
37 A.3d 521, 424 N.J. Super. 231, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-zhan-njsuperctappdiv-2012.