ACCEPTED 01-14-00123-cv FIRST COURT OF APPEALS HOUSTON, TEXAS 1/2/2015 9:54:51 AM CHRISTOPHER PRINE CLERK IN THE COURT OF APPEALS
FIRST JUDICIAL DISTRICT FILED IN HOUSTON, TEXAS 1st COURT OF APPEALS HOUSTON, TEXAS APPEAL NUMBER 01-14-00123-CV 1/2/2015 9:54:51 AM Trial Court Cause Number: 2013-29304 CHRISTOPHER A. PRINE Clerk
On Appeal from the 246th District Court of Harris County, Texas
KAYLA MARIE McCARTNEY } APPELLANT }
V. }
JOSHUA NEAL POLK } APPELLEE
APPELLEE'S MOTION FOR REHEARING EN BANC
Counsel for Appellee: Counsel for Appellant:
Jay M. Wright Timothy Hootman 204 West Davis Street 2402 Pease Street Conroe, Texas 77301 Houston, Texas 77003 Telephone: 936-494-2462 Telephone: 713-247-9548 Telecopier: 936-494-1976 Telecopier: 713-583-9523 Email: jaywrightattyC2ihotmail.corn Email: thootman20002yahoo.com Attorney for Appeal
Lianna Garza 1010 Lamar, Suite 860 Houston, Texas 77002 Attorneys for Appeal LIST OF PARTIES AND COUNSEL
Appellant: Appellee:
KAYLA MARIE McCARTNEY JOSHUA NEAL POLK 17855 Camp Cove Drive 17015 Carrol Lane Cypress, Texas 77429 Willis, Texas 77378
Counsel for Appellant: Counsel for Appellee:
Timothy A. Hootman Jay M. Wright 2402 Pease Street Attorney at Law Houston, Texas 77003 204 West Davis Street Telephone: 713-247-9548 Conroe, Texas 77301 Telecopier: 713-583-9523 Telephone: 936-494-2462 Email: thootman2000@yahoo.com Telecopier: 936-494-1976 Attorney for Appeal Email: jaywrightatty@hotmail.com Attorney at trial and Appeal Liana Garza 1010 Lamar, Suite 860 Houston, Texas 77002 Attorney for Trial and Appeal
Office of the Attorney General, Child Support Division Treasea Trevino, Assistant Attorney General 4600 Highway 6 North, Suite 300 Houston, Texas 77084 Attorney for Trial only
2 TABLE OF CONTENTS
Cover Page 1
List of Parties and Counsel 2
Table of Contents 3
List of Authorities 4
Motion For Rehearing En Bank on Appeal 5,6,7
Certificate of Word Count 7,8
Certificate of Service 8
Appendix Cover Sheet 9
Appendix Exhibit One Cover with Judgment 10
Appendix Exhibit Two Cover with Opinion 11
Appendix Exhibit Three Cover with Dissenting Opinion 12
3 LIST OF AUTHORITIES
Cases Page
Butnaru v. Ford Motor Co., 84 S.W3d 198 (Tex. 2002) 5
City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) 5
In Re H.S.B., 401 S.W.3d 77 (Tex. App.--Houston [14th Dist.] 2011, no pet.) 5,6
Statutes, Rules and Codes
Rule 49.7, Tex. R. App. Proc. 5
Treatises, Books and Publications
Bill O'Reilly, Culture Warrior, Broadway Books publishing, New York 2006 7 MOTION FOR REHEARING EN BANC
COMES NOW the Appellee, JOSHUA POLK, pursuant to Rule 49.7, Tex. R.
App. Proc., and moves this Honorable Court of Appeals to re-hear this case En Banc for
the reasons set forth below.
The reasons the Court of Appeals should re-hear and re-consider this case En
Banc is due to the major impact this ruling will have on family law cases throughout the
State of Texas. The judgment of the Court is filed as Appendix Exhibit One. The
Majority Opinion of the Court is filed as Appendix Exhibit Two. The Dissenting Opinion
is filed as Appendix Exhibit Three.
A majority of the panel in this case properly cited the burden on the Appellant in
this case that she must prove "(1) there is a complete absence of evidence of a vital fact,
(2) the court is barred by rules of law or evidence from giving weight to the only
evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is
more than a mere scintilla, or (4) the evidence conclusively establishes the opposite of the
vital fact. City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005)." Appendix
Exhibit Two, Opinion at p. 10.
The majority then reaches an historic decision that flies directly in the face of two
Supreme Court holdings: 1. City of Keller v. Wilson, 168 S.W.3d 802, 807 (Tex. 2005);
and there is no basis for concluding that the trial court abused its discretion in granting
the name change, according to the holding in Butnaru v. Ford Motor Co., 84 S.W.3d 198,
211 (Tex. 2002), because "The trial court does not abuse its discretion if some evidence
reasonably supports the trial court's decision." It also runs contrary to the holding of the
14th Court of Appeals in In Re H.S.B., 401 S.W.3d 77 (Tex. App.--Houston [14tl Dist.]
5 2011, no pet.)
The majority in this case is attempting to overturn yet another, historic tradition
that is the pillar of the American family by this decision. Having siblings carry the name
of the father is one of foundations of the Anglo-American tradition going all the way
back to the establishment of "Coats of Arms" identifying families based upon the
parentage of the father. This decision is a major volley in the attack on the traditional
American family coming froth--of all places--the State of Texas. The Appellant, mother
of the child, has no other children and, therefore, no other siblings with which this child
must develop a relationship. It is clearly in this child's best interest to identify with and
develop a relationship with his sibling.
The Dissenting Opinion correctly points out that "Because the trial court did not
abuse its discretion in determining that fostering a sibling relationship merited a change
in the child's name and was in the child's best interest, I respectfully dissent." Appendix
Exhibit Three, Dissenting Opinion at 1-2. The impact of the decision is to tell trial court
judges that this factor (fostering a sibling relationship) has no weight and cannot be
considered as a basis for changing the name of a child.
The intended effect is to destroy the Anglo-American tradition of identifying
family members by the Father's last name and to further muddy the waters as to what
constitutes "family identity" in our society. See, for example, "I have chosen to jump
into the fray and become a warrior in the vicious culture war that is currently under way
in the United States of America. And war is exactly the right term. On one side of the
battlefield are the armies of the traditionalists like me, people who believe the United
States was well founded and has done enormous good for the world. On the other side are
6 the committed forces of the secular-progressive movement that want to change America
dramatically: mold it in the image of Western Europe." p. 1, Bill O'Reilly, Culture
Warrior, Broadway Books publishing, New York, 2006. This court should be engaged in
preserving American traditions that support the American family and not attempting to
destroy family bonds.
Because the Majority Opinion ignores Supreme Court holdings and attempts to
strike at the heart of American family traditions, the entire Court of Appeals En Bane
should rehear and re-consider this case, withdraw the Majority Opinion, and substitute an
En Banc Judgment and Opinion affirming the trial court's decision in this case.
CONCLUSION AND PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellee respectfully requests the
Court En Banc to rehear and reconsider the Majority ruling in this Appeal, withdraw the
Majority Opinion, and substitute an En Banc Judgment and Opinion affirming the trial
court's decision in this case and grant any such further relief to which Appellee may be
entitled.
Respectfully Submitted,
Jay Nr Wright State Bar No. 22041800 204 West Davis Street Conroe, Texas 77301 Telephone: 936-494-2462 Telecopier: 936-494-1976 Email: jaywrightatty@hotmail.com ATTORNEY FOR APPELLEE
CERTIFICATE OF WORD COUNT
I hereby certify that, on December 31, 2014, in accordance with Rule 9.5 of the
VA Rules of Appellate Procedure, that the number of words contained in this Motion For
Rehearing En Banc are 1,271 according to the computer program used to prepare this
document.
Jay M. Wright
CERTIFICATE OF SERVICE
I hereby certify that on December 31, 2014, a true and correct copy of the above and foregoing Motion For Rehearing En Banc of Appellee was served upon Timothy A. Hootman, 2402 Pease Street, Houston, Texas 77003, thootman2000@yahoo.com and Treasea Trevino, Assistant Attorney General, Child Support Division, 4600 Highway 6 North, Suite 300, Houston, Texas 77084, FAX: 713-281-345-9457, via electronic notification and first-class U.S. mail, in accordance with the Rules of Appellate Procedure.
JayM. •right
8 IN THE COURT OF APPEALS
FIRST JUDICIAL DISTRICT
HOUSTON, TEXAS
APPEAL NUMBER 01-14-00123-CV Trial Court Cause Number: 2013-29304
On Appeal from the 246th District Court of Harris County, Texas
COVER SHEET FOR APPENDIX OF EXHIBITS
EXHIBIT ONE: JUDGMENT
EXHIBIT TWO: OPINION
EXHIBIT THREE: DISSENTING OPINION APPENDIX EXHIBIT ONE
JUDGMENT
10 JUDGMENT
Court of ftvealo first Atotrict of 1Icxa NO. 01-14-00123-CV
IN THE INTEREST OF A.E.M., A Minor Child
Appeal from the 246th District Court of Harris County. (Tr. Ct. 20 13-29304).
This case is an appeal from the final judgment signed by the trial court on January 14, 2014. After submitting the case on the appellate record and the arguments properly raised by the parties, the Court holds that there was error in the trial court's judgment in the following respect: it orders the surname of the child to be changed. Accordingly, the Court reverses the trial court's judgment and renders judgment that the child's surname remains McCartney.
The Court orders that the appellee, Joshua Neal Polk, pay all appellate costs.
The Court orders that this decision be certified below for observance.
Judgment rendered December 16, 2014.
Panel consists of Justices Higley, Bland, and Sharp. Opinion delivered by Justice Higley. Justice Bland, dissenting. APPENDIX EXHIBIT TWO
OPINION
11 Opinion issued December 16, 2014
In The
Court of ftpealys For The
jftrt flitritt of x1exao
NO. 01-14-00123-CV
On Appeal from the 246th District Court Harris County, Texas Trial Court Case No. 2013-29304
After meeting with an officer from the Child Support Division of the Office
of the Attorney General, the parents of A.E.M. could not reach an agreement on all
the terms for a child support and custody order. The only issue left unresolved was
whether the child's last name should be changed to his father's last name. After a
hearing, the trial court ordered the child's surname to include his father's surname. In three issues on appeal, the mother argues (1) the trial court lacked subject-matter
jurisdiction to order the child's last name to be changed, (2) the evidence is legally
insufficient to support the change of the child's last name, and (3) the written
judgment does not conform to the trial court's orally rendered judgment.
We reverse and render.
Background
After A.E.M. was born, his parents attended a negotiation conference with
an officer from the Child Support Division of the Office of the Attorney General.
The parents reached agreement on most of the issues discussed, but could not reach
an agreement on the last name of the child. The father wanted the child's last
name changed to his last name. The mother wanted the child to keep her last
name. The Office of the Attorney General filed a petition for confirmation of a
non-agreed order with the trial court. The father filed a request for a hearing on the
non-agreed issues.. Specifically, the father requested the trial court to resolve his
request to change the child's name to his last name.
The trial court held a haring. At the hearing, the father testified that he
wanted to change the child's name to his last name because he had a daughter who
had his last name and he wanted them to have the same last name. The father
explained that he had visitaiioh rights with his daughter The father and mother in
this case had agreed that the father would also have visitation rights with A E M The father testified that he also wanted the child to have his last name so there
would be someone to carry on his family name and so that the child would have his
name if the child entered the military. He acknowledged, however, that the child's
keeping his mother's last name would not be detrimental to the child.
The mother testified that her last name held respect in the community
because her father had run a business for 33 years in the small town where she
lived. She also testified that the father had indicated he was attending visitation
periods only in an attempt to get their son's last name changed to his and had told
her at, one time, that he was willing, to sign his parental rights away.
The trial court's judgment orders the child's last name to be changed to the
father's last name.
Subject-Matter Jurisdiction
In her first issue, the mother asserts that the trial court lacked subject-matter
jurisdiction to order the child's last name to be changed.
The dispute over their child's last name arpe during meetings with the
Child Support Division of the Office of the Attorney General. Pursuant to Chapter
233 of the Texas Family Code, the Office of the Attorney General is authorized to
attempt expedited administrative actions concerning child support and medical
support obligations. See. Tix. FAM. CODE. ANN. § 233.001 (Vernon 2014)
(explaining purpose of chapter,is to authorize "Title IV-D" agency to take
3 expedited administrative actions concerning child support and medical support
obligations); see also TEX. FAM. CODE ANN. § 231.001 (Vernon 2014) (designating
Office of the Attorney General as Title IV-D agency in Texas). If, as here, the
parties cannot reach complete agreement in the administrative process, the Office
of the Attorney General may file a petition for confirmation of a non-agreed child
support order. Id. §§ 233.012(3), .020 (Vernon 2014). After the petition has been
filed, certain strict deadlines apply before a hearing is held on the issues that
remain outstanding. See id. §§ 233.023, .026 (Vernon 2014).
The thrust of the mother's complaint is that the Office of the Attorney
General lacked the authority to negotiate the last name of the child during the
administrative process and, therefore, the trial court lacked jurisdiction to consider
the matter in the subsequent hearing. We conclude that the trial court had
jurisdiction to determine the last name of the child.
Generally, family courts in Texas have "the jurisdiction and power provided
for district courts by the constitution and laws of this state." TEX. Gov'T CODE
ANN. § 24.60 1(a) (Vernon 204). Additionally, they have primary responsibility
for cases involving family law matters. Id. § 24.601(b). The law on changing a
child's name is contained in the family code. See TEx. FAM. CODE ANN.
§ § 45.00 1—.005 (Vernon 2014). Accordingly, it is undisputable that the family
court generally had jurisdiction to determine the child' s last name
4 H The question we must address, then, is whether anything in Chapter 233 of
the Family Code excluded the consideration of the child's name from the trial
court's jurisdiction. We apply statutory construction principles in determining
whether a statutory requirement is jurisdictional. City of DeSoto v. White, 288
S.W.3d 389, 394 (Tex. 2009). We review the matter de novo. Id. "We resist
classifying a provision as jurisdictional absent clear legislative intent to that
effect." Crosstex Energy Servs., L.P. v. Pro Plus, Inc., 430 S.W.3d 384, 391 (Tex.
2014). "Since the Legislature is bound to know the consequences of making a
requirement jurisdictional, one must ask, in trying to determine legislative intent,
whether the Legislature intended those. consequences." Univ. of Tex. Sw. Med. Dr.
at Dali. v. Loutzenhiser, 140. S.W.34 351, 359 (Tex., 2004), superseded by statute
on other grounds as recognized mr Prairie View .A & M Univ. v. Ciiatha, 381
S.W.3d 500, 511 (Tex. 2012). Indeterhiining the legislative intent, we consider
"(1) the plain meaning of the statute.;:..(2) the presence or absence of specific
consequences for noncompliance'; (3) the purpose of the statute; and (4) 'the
consequences that result from each possible interpretation. " Crosstex Energy, 430
S.W.3d at 392 (quoting White; 288 S.W.3d at 3.96).
In determining whether Chapter 233 limits the jurisdiction of the trial court,
we must look at tle plain 1nguage of the statute. Section 233.001 provides that
the purpose of the procedures specified in the chapter is to enable the Office of the
5 Attorney General "to take expedited administrative actions to establish, modify,
and enforce child support or medical support obligations, to determine parentage,
or to take any other action authorized or required under Part D, Title IV, of the
federal Social Security Act (42 U.S.C. Section 652 et seq.) and Chapter 231." TEX.
FAM. CODE ANN. § 233.001(a)..
The purpose of the administrative conference between the parties "is to
provide an opportunity to reach an agreement on a child support order." Id.
§ 233.012(1). The child support review order is meant to cover topics such as
"current child support, medical support, a determination of any arrearages or
retroactive support, and, if not otherwise ordered, income withholding." Id.
§ 233.017(a).
However, if the parties do not agree on an order, the child support review
order "may specify and reserve for the court tt the confirmation hearing
unresolved issues relating to conservatorship or possession of a child." Id.
§ 233.017(d). At the hearing on the non-agreed order, "any issues in dispute shall
be heard in a trial de novo." Id. § 233.025(b).
Even if we concluded that the administrative conference can only cover
matters relating to paternity determinations, child.siipport obligations, and medical
support obligations, the hearing before the trial court on the unresolved issues is
intended to allow matters beyond thQse limitations, Including conservatorship and
6 possession of a child. See id. § 233.017(d). While it does not specifically include
name changes as a matter that can be resolved by the trial court, the statute also
does not exclude it. See id.; see also Crosstex Energy, 430 S.W.3d at 392 (holding
presence or absence of specific consequences for noncompliance is factor for
determining whether statute is jurisdictional). Moreover, even if we interpreted
these statutes to restrict the cniderations to be taken by the trial court, nothing in
the statutory framework suggests the limitations are jurisdictional. See White, 288
S.W.3d at 395 (holding fact that statutory requirement is mandatory does not mean
compliance with it is jurisdictional).
At best, the fact that changing a child's name was not identified as a topic to
be resolved in the Chapter 233 hearing before the trial court suggests that it was
not generally intended to be resohcd in the hearng. From there, there is no more
than a weak inference to concluik: th:t the lcgis!atpre intended this to be a strict
jurisdictional limitation. Se T'm.csic.v Energy, •43U S.\V.3d at 392 ("Although the
plain meaning might suggest a jurisdctional bar.. it does not meet the requisite
level of clarity to establish the statute as jurisdjctional.).
Finally, we see no negative.nsiueiices that might iarise from holding any
no' juri:dicionil. Sce ii. (.hokhng consequences that limitations on the hearing are
result from each possible in IUi 11 i. factor determining whether statute is
jurisdictional). [yen if tr!e name ol i.bc child i: ior giiera I',' intended to be part of the trial court's hearing, any injured party can object to its inclusion. See id. at 391
("A party may waive a mandatory,' I:" on-jurisdictional requirement by failing to
timely object."). Here, instead, the mother actively participated in presenting
evidence on the matter. See Moore v. Altra Energy 'Technologies, Inc., 321 S.W.3d
727, 734 (Tex. App.—Houston [14th Dist.] 2010, pet. denied) (holding matter is
tried by consent if record shows all parties understood issue was developed in trial
and no party objected).
In contrast, making the matter jurisdictional would open it to indefinite
collateral attack and leading to 'uncertainty in matters that the parties actively
presented to the trial court. See Crosstex Energy, 430 S.W.3d at 393 (holding it
does not follow that creation ofl.procedural bar means legislature wanted judgment
attacked in perpetuity); White, 288 S.W.3d at 393 (holding that deeming provision
jurisdictional opens way to making judgments . iij: fl le to delayed attack for
variety of irregularities that should, be sealed after judgment).
We hold there was no jurisdictional bar, to the trial court's determination of
the child's last name. We overrule the mother's first isue.
Legal Sufficiency.
In her second issue, the mother argues that the evidence is legally
insufficient to support the change of the child' : s last name.
8 A. Standard of Review
We review a trial court's ruling on a request to change the name of a child
for an abuse of discretion. In re H.S.B., 401 S.W.3d 77, 81 (Tex. App.—Houston
[14th Dist.] 2011, no pet.); In re Guthrie, 45 S.W.3d 719, 723 (Tex. App.—Dallas
2001, pet. denied). A trial court abuses its discretion when it acts in an arbitrary or
unreasonable manner, or if it acts without reference to any guiding rules or
principles. Tex. Dept. of Human Serys. v. E.B., 802 S.W.2d 647, 649 (Tex. 1990);
In re H.S.B., 401 S.W.3d at 81. "The factfinder is the sole judge of the credibility
of the witnesses and the weight to give their testimony." Bush v. Bush, 336
S.W.3d 722, 730 (Tex. App.—Houston [1st Dist.] 2010, no pet.).
When reviewing the sufficiency of the evidence for an-abuse-of-discretion
review, the sufficiency grouiid is not an independent issue. See Moreno v. Perez,
363 S.W.3d 725, 735 (Tex, .pp.—Houston [1st Dist.] 2011, no pet.); In re H.S.B.,
401 S.W.3d at 81 instead, the sufficiency challeng is incorporated into the abuse
of discretion review. Morenp 363 S.W.3d at 73; In re H.S.B., 401 S.W.3d at 81.
In this situation, "[o]ur analysis employs a two-priged inquiry (1) whether the
trial court had sufficient information upon which to exercise its discretion; and (2)
whether the trial court erred in its application o disetion." Moreno, 363 S.W.3d
at 735 (citing McGuire v McGuire, 4 S W 3d 382, 37 n 2 (Tex App —Houston
[lstDist] 1999, no pet.)).
9 Aparty challenging the legal sufficiency of the evidence on an issue for
which it did not carry the burden of proof will prevail if (1) there is a complete
absence of evidence of a vital fact, (2) the court is barred by rules of law or
evidence from giving weight to the only evidence offered to prove a vital fact, (3)
the evidence offered to prove a vital fact is no more than a mere scintilla, or (4) the
evidence conclusively establishes the opposite of the vital fact. City of Keller v.
Wilson, 168 S.W.3d 802, 810 (Tex. 2005). "More than a scintilla of evidence
exists when the evidence supporting the finding, as a whole, rises to a level that
would enable reasonable and fair-minded people to differ in their conclusions."
Merrell Dow Pharm., Inc. v. Havnr, 953 S.W.2d 706, 711 (Tex. 1997) (internal
quotations omitted).
B. Analysis
The father sought to -Qhang6 A.E.M.'s last. .me to his last name under
authority of Chapter 45 of tl Texas Family Code See TEX. FAM CODE ANN
§ § 45.001—.005 (Vernon 2014) Section 45.004 prp1ides, n pertinent part, that
"[t]he court may change the name of a child if the hnge is in the best interest of
the child . . . ." TEX. FAM. C6DE ANN. § 45.004(a(1). While neither parent has
any specific right to name the eii1d, once the child been named, the name will
not be changed unles the ompiaii.ing parent.. there is good reason to
change the name In re, Gzi 1ire, 45 S W 3d at 724 general rule is that courts
10 will exercise the power to change a child's name reluctantly and only when the
substantial welfare of the child requires it." Id at 723; see also In re H.S.B., 401
S.W.3d at 83 ("In Texas, courts have held that a child's name should not be
changed unless the party seeking the change shows that the original name is
detrimental to the child.").
The statutes permit a name change when it is "in the best interest of the
child." TEx. FAM. CODE ANN. § 45.004(a)(1). Accordingly, the only facts relevant
to our review of the trial court's determination are the facts concerning the child's
best interest; the interests of the parents are not relevant. In re H.S.B., 401 S.W.3d
at 83. The Fourteenth Court of Appeals, in In re H.S.B., reviewed the various
balancing tests used to determine whether a name change was warranted. See id. at
84-85. In doing so, it rejected factors unrelated to the best interest of the child.
See id. (rejecting emba7iasment, inconvenience, or confusion suffered by
custodial parent; delay in reqüsting name change; and parents' financial support
as factors to be considered). We agree with our sister court that these factors do
not belong in a balancing test focused on determining the best interest of the child.
Accordingly, we adopt the balancing test announced in In re H.S.B. See id. at 84;
Those factors are:
(1) the name that would best avoid anxiety, embarrassment, inconvenience, confusion, or disruption for the child, which may include onsideration of parental misconduct and the
11 degree of community respect (or disrespect) associated with the name,
(2) the name that would best help the child's associational identity within a family unit, which may include whether a change in name would positively or negatively affect the bond between the child and either parent or the parents' families,
(3) assurances by the parent whose surname the child will bear that the parent will not change his or her surname at a later time,
(4) the length of time the child has used one surname and the level of identity the child has with the surname,
(5) the child's preference, along with the age and maturity of the child, and
(6) whether either parent is motivated by concerns other than the child's best interest--for example, an attempt to alienate the child from the other parenL
Id.
For the first factor, there was little indication in the record that either
4 parent's name would avpi a1iy embarrassment or d sruption for the child or that
there was a significant amount of respect oi disrespect, for either name in the
community. The mothrr testified that her last name held repect in the community
because her father had run a business for 33 years '1n the small town where she
lived The trial court copid iave discounted this,te,stiony, owever. See City of
Keller, 168 S W 3d at 819, 827 (holding fact finder i ' sole judge of credibility of
witnesses and weight to givq, their testimony, legal sufficiency review must credit
12 favorable evidence if reasonalle fact finder coJld, and disregard contrary evidence
unless reasonable fact finder could not).
The father argues that this,factor weighs in his favor because if he "takes the
child to the doctor, takçs the chid somewhere with his sister, or attends the child at
school, it will be better for the child to be identified with [the father's] last name"
The father overlooks the fact that the mother is the one with he greatest custodial
possession of the child and, therefore, is the one who will most often take the child
to the doctor, take the child out in public, and take the child to school. Based on
the father's argument, then, this factor weighs in favor of the mother. Viewing the
record in the light most favorable to the ruling, however, we will consider this
factor to be neutral.
For the second factor, the father testified that he had a daughter and that he
wanted them to get to kn9w each other and have the same last name In In re
H S B, the court recognized that sharing a last name with a full or half-blood
sibling was relevant to determining whether the last nme should be changed 401
S W 3d at 86-87 In that case, the child in question would spend the majority of
his time with his mother and older brother, both of whom had the same last name
Id at 80, 87 The child in question and his older btothei were close in age and
would regularly attend the sare church and the same schools Id The court held
13 that giving the child the mother's last name "would more strongly associate H.S.B.
with a family unit consisting of his brother and his custodial parent." Id. at 87.
In this case, in contrast, the father is not the custodial parent for A.E.M. or
for his daughter. He only has periodic visitation rights for both, and there was no
testimony concerning how much these visitation times would overlap. The father
and mother in this case do not live in the same town or in surrounding towns, and
there is no indication of where the father's daughter lives. There is also no
indication of the daughter's age.
In short, there is little evidence that giving A.E.M. the same last name as his
half-sister "would more strongly associate, [him] with a family unit." Id.
Accordingly, while there is some evidence in the. father's favor for this factor, the
overall significance of the evidence is slight.
The father testified that ie also wanted the child to have his last name so
there would be someone to carry on his family name and so that the child would
have his name if he entered the militry. The father did iot explain, however, how
it would be more beneficial to the child to have his' last name instead of his
mother's last name in the event of entering the military or having children of his
own. And the father's perspnal desires to have his family name continued or be
represented in the military lare not, relevant inquiries. Sçe id. at 84 (rejecting
factors that "inapproppcte1y shift the inquiry to the parents' interests")
14 The dissent criticizes our resolution of this factor, claiming we have
"accept[ed] the mother's reasoning and reject[ed] the father's." From this, the
dissent characterizes our holding as an improper displacement of the trial court's
responsibility to resolve coiflicts in the testimony. This is not what we have done,
however. It was within the trial court's discretion to disbelieve the mother's
testimony concerning the child's associationat identity with the family unit. See
Bush, 336 S.W.3d at 730 (holding factfi.nder is sole judge of credibility of
witnesses and weight to give: their: testimony). In accordance, we have not
identified, let alone not placed any reliance on, the mother's testimony.
Instead, we have focused solely on. 'the. evidentiary significance of the
father's testimony. Becusp tie :father:provided..,iittle 'to no information about the
other sibling and thealn(w.n ol time nc eøki potentially spend with A.E.M. to
develop any relationship, we have held: ti at the tetimonv simply identifying
another sibling who might occasionally see A. E. M. does not have strong
evidentiary significance.
In contrast, the dissent would hold :that the mere existence of another child
bearing a parent's last name would be enough to warrant requiring the child's
name to be changed. Such a holding stands in stark contrast to the long-standing
general rule ... that COurLs will CXeLISC the po Cr 10 c, ange a child's name
reluctantly and only when .he substantial welfare 'of the child requires it." In ;'c
15 Guthrie, 45 S.W.3d at 724. The simple existence of another child who bears the
father's last name and who might periodically see A.E.M. does not establish that
the substantial welfare of A.E.M. requires a name change.
For the third factor, neither parent testified about the possibility of changing
their last name in the future. See id. This factor is neutral.
For the fourth and fifth factors, the child was nearly one-and-one-half years
old at the time of the hearing. The child had no level of identity with the last name
and had no ability to express a preference for his last name. See id. This factor is
neutral.
For the final factor, there is little evidence to indicate that either parent was
motivated by concerns other than the child's best interest. The mother testified
that the father had indicated he was only attending visitation periods in an attempt
to get their son's last name changed to his and had told her at one time that he was
willing to sign his parental rgts aay. But the trial court could have discounted
this testimony. See City Kelle, 168 S W 3d at 819, 27 Accordingly, this
factor is neutral
In total, we have five neutral factors and one factor that slightly favors the
father. "The power , to chnge the name of a minc chik is exercised reluctantly
and only when necestped by the substantial welfare of the child. "' In re HS B,
401 S W 3d at 83 (iotin In re 1K, 922 S W 2d 20, '222 (Tex App.--San
16 Antonio 1996, no writ)); accord In re Guthrie, 45 S.W.3d at 724. Given that the
father presented only some slight evidence for one factor of the test for establishing
the propriety of name changes, we hold that the father did not carry his burden of
establishing that the substantial welfare of the child requires the name change. See
City of Keller, 168 S.W.3d at 810 (holding legal sufficiency challenge will be
sustained if party that did not carry burden of proof shows evidence offered to
prove vital fact is no more than scintilla); Havner, 953 S.W.2d at 711 (holding
more than scintilla of evidence exists when evidence rises to level that would
enable fair-minded people to differ in conclusions).
We sustain the mother's second issue*
Conclusion
We reverse the portion f, the judgment changing the last name of A.E.M.
and render a judgment that hJf last name remains the same. APPENDIX EXHIBIT THREE
DISSENTING OPINION
12 Opinion issued December 16, 2014.
Court of ftPeato For The
jftrt lah9tritt of !Iexa
On Appeal from the 246th District Court Harris County, Texas Trial Court Case No. 2013-29304
Faced with a Solomonic choice, the trial court ordered a child's name to
include his father's surname alongside his mother's. The child's mother argues,
and the majority holds, that the evidence is insufficient to support its decision.
Because the trial court did not abuse its discretion in determining that fostering a sibling relationship merited a change in the child's name and was in the child's
best interest, I respectfully dissent
We review a trial court's ruling to change a child's name under an abuse of
discretion standard. In re H.S.B., 401 S.W.3d 77, 81 (Tex. App.—Houston [14th
Dist.] 2011, no pet.); In re Guthrie, 45 S.W.3d 719, 723 (Tex. App.—Dallas 2001,
pet. denied). A sufficiency challenge is incorporated into this review. Moreno v.
Perez, 363 S.W.3d 725, 735 (Tex. App.—Houston [1st Dist.] 2011, no pet.); In re
H.S.B., 401 S.W.3d at 81-82. We determine "(1) whether the trial court had
sufficient information upon which to exercise its discretion; and (2) whether the
trial court erred in its application of discretion." Moreno v. Perez, 363 S.W.3d
725, 735 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (citing McGuire v.
McGuire, 4 S.W.3d 382, 387 n,2 (Tex. App.—Houston [1st Dist.] 1999, no pet.));
see also In re H.S..B., 401 S. .3d at 82. In determining whether a name change is
in a child's best interest, we defer to the trial court's resolution of credibility and
conflicts in the witness's testimony. See In re ILS.B, 401 S.W.3d at 87 (finding
that the trial court had the discretion to resolve conflicts in the testimony to
determine whether the father maintained a significant relationship with the child).
Section 45.004 provides that "[t]he court may change the name of a child if
the change is in the best interest of the child. . . ." TEX. FAM. CODE ANN.
§ 45.004(a)(1) (West 2014). As the majority olserves, this determination involves
2 a number of factors. See also In re H.S.B., 401 S.V.3d at 84. However, the
"relative importance of thsç factors . . . will depend on the unique facts and
circumstances of each case." Id., As with any evaluation of evidence, the number
of factors favoring the trial court's ruling should not control the analysis; rather,
the logical force of the facts and inferences from them should.
The majority acknowledges that including the father's last name could more
strongly associate the child with a family unit—in particular, his half—sibling. It
concedes that the remaining factors are neutral in their factual basis, and depend
heavily on credibility determinations of the testimony from the father and the
mother. Both parents had reason and motive to urge their respective positions; the
relative weight to accord their testimony on the highly. subjective nature of the best
interest in naming their child was uniquely within the trial court's purview—it saw
their demeanor and heard thcir, ws; we did not.
Leaving the parent's testimcny aside t trial court heard one objective
piece of evidence—that of a sibling re1ationshi with another child—evidence that
standing alone favors the trial out's ruling In In re HS B, our sister court
reasoned that because the mother had another child, a shared last name between
half—siblings would foster the sibling relationship Id at 86-87 In that case, the
father had no other children, aid the court determined that the use of the mother's surname would more strongly associate the child with a family unit of the sibling
and parent. Id. at 87.
In this case, the parties contested the evidence of an association with a
family unit. The child's father has visitation both with the child and the child's
half—sibling. He exercised his visitation, according to a "step—up" visitation plan
in place. He testified that he wants his children to get to know one another and
develop a relationship. The mother does not have other children. She testified that
the father attended visitation only to procure a name change in his favor and that
the child would reside mainly with her and her family. The majority accepts the
mother's reasoning and rejects the father's, but it was the trial judge as the fact
finder who was free to resolve the parent's conflicting testimony. See Id. (finding
that the trial court had the discretion to resolve conflicts in the testimony in
determining whether the father maintained a significant relationship with the
child).
The majority dismisses the notion of importance of the child's sibling
relationship with another child. But the trial court reasonably could have found
that a shared surname with a half—sibling would further this sibling relationship
With objective evidence of a sibling relationship, the evidence is legally sufficient
to support the trial court's ruling. Because the logical force of the testimony
presented supports its decision, we should hold that the trial court did not abuse its discretion in ordering the addition of the father's surname to his child's name. See
Moreno v. Perez, 363 S.W.3d at 735.
Oral Pronouncement
In her third issue, which the majority does not reach, the child's mother
argues that the trial court's written judgment does not conform to its orally
rendered judgment. In family law cases, a court renders judgment when it
announces its decision, either in writing or orally in open court. Barton v.
Gillespie, 178 S.W.3d 121, 126 (Tex. App.--Houston [1st Dist.] 2005, no pet.)
(citing In re Fuselier, 56 S.W.3d 265, 268 (Tex. App.—Houston [1st Dist.] 2001,
orig. proceeding)); see also In re R.A.H., 130 S.W.3d 68, 70 (Tex. 2004)
("[J]udgment is rendered 'when the decision is officially announced orally in open
court, by memorandum filed with the clerk,, or otherwise announced publicly.")
(quoting Garza v. Tex. Alcoh9lic Beyerage Comm 'n, 89 S.W.3d 1, 7 (Tex. 2002)).
In the case of an oral renditioi, the judgment becomes effective immediately; the
signing and entry of the jiid h-ient are only ministerial acts Dunn v Dunn, 439 S W 2d 830, 832-33 (Tex 69) see Maldonado V Rosarzo, No 01-12-01071--
CV, 2013 WL 1316385, at *i(Tex App —Houston [1st Dist] Apr. 2, 2013, no
pet) (per curiam) ("Once a divorce is granted by oral pronouncement in which the trial court finally ajuidatés tl rights of :the parties, then entry of a written judgment is purely a ministerial act."). The father in this case does not contest that
the oral pronouncement governs.
At the hearing, the court orally pronounced a judgment "to add [the father's
last name] to the surname." The final order states that "[t]he birth records . . . shall
be amended to show. . . the child's surname as [the: father's last name]." Because
the oral pronouncement controls, we should sustain the mother's objection to the
written order and modify it to include the mother's surname first, then the father's
surname. See Dunn, 439 S.W.2d at 832-3.3; Barton, 178 S.W.3d at 126.
Because the trial court acted within its discretion in resolving the parent's
dispute as to the naming of their child, we should affirm its ruling. As the majority
instead overturns it, I respectfully dissent.
Jane: Bland Justice
Panel consists of Justices Hley, Band, and Sharp
Justice Bland, dissenting.