Rel: May 17, 2024
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections may be made before the opinion is published in Southern Reporter.
ALABAMA COURT OF CIVIL APPEALS OCTOBER TERM, 2023-2024 _________________________
CL-2023-0561 _________________________
J.L.W.
v.
C.J.P.
Appeal from Jefferson Juvenile Court (CS-22-900165)
FRIDY, Judge.
J.L.W. ("the mother") appeals from a judgment of the Jefferson
Juvenile Court ("the juvenile court") awarding her and C.J.P. ("the
father") joint legal and joint physical custody of their child, R.W. ("the
child"). She also challenges several other provisions of the juvenile court's CL-2023-0561
judgment, including the provision directing that the child's last name be
hyphenated to include the father's surname, the provision directing that
the mother be responsible for maintaining the health-insurance coverage
for the child, and its failure to establish "tiebreaker" authority as between
the parents regarding decisions concerning the child's medical care and
his academic, religious, cultural, civic, and athletic activities. For the
reasons discussed herein, we affirm the judgment in part, reverse it in
part, and remand the cause to the juvenile court.
Background
The child was born in May 2015 to the mother and the father, who
have never been married to each other. On March 1, 2022, the father filed
a petition to establish paternity in the Jefferson Juvenile Court in which
he sought legal and physical custody of the child and asked that the
child's surname be changed to his surname. On March 23, 2022, the
mother filed an answer and a counterclaim in which she, too, requested
"primary" custody of the child, as well as child support. Before the trial,
the father submitted to genetic testing. The results of that testing
indicated that his probable paternity was 99.99%.
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The juvenile court held a trial over two days in December 2022 and
April 2023. Much of the evidence that the juvenile court received was
conflicting. The mother testified that she and the father were dating
when the child was conceived. She acknowledged that, when she learned
that she was pregnant with the child, she received a text message from
another man saying that he believed that he was the child's father. She
said that the father did not immediately accept that he was the child's
biological father, and she said that she could not recall whether the father
began sending her baby supplies once the child was born.
The mother said that the father asked her to put his name on the
child's birth certificate but that she did not recall when he first made the
request. The father testified that he attempted to have his name added
to the child's birth certificate in 2015. The child's last name was the
mother's maiden name, but when the trial took place, she was married
and no longer used that name. The mother's parents also did not have
the same last name as the child. The mother acknowledged that,
although the child's sibling shared the last name of the mother and her
husband, T.V. ("the husband"), the child did not. However, she said,
others in her family had the same last name as the child.
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The father was in school in Orlando, Florida, when the baby was
born. He testified that, at that time, he and the mother were no longer in
a romantic relationship. When he finished school in January 2017, the
father said, he returned to Birmingham but was unable to find a job in
his field, so he joined the military. He said that he registered the child as
a dependent and enrolled him in benefits to which he was entitled. Upon
his enlistment, the father said, he provided the mother with a TriCare
card, which served as health insurance for the child, although no court
had required him to do so. The father testified that, after his training
period ended, he began regularly sending the mother money for the
child's benefit. The mother said that she received only sporadic financial
support from the father.
While the father was stationed outside of Alabama, the mother
said, his mother ("the paternal grandmother") spent time with the child,
taking him on Wednesday nights and on some weekends. 1 The father said
that, while he was gone, the paternal grandmother had regular visitation
with the child every other weekend and at other times as well. When he
1In her brief, the mother refers to times when the father was stationed in Tennessee; however, as the father points out, no evidence was presented indicating that he was ever stationed there. 4 CL-2023-0561
returned to Alabama on leave, the father said, he would spend most of
his time with the child.
The mother said that while the father was in the military, she
would take the child to visit him. For example, she said, she took the child
to Fort Benning, Georgia, to visit the father for Thanksgiving in 2017. In
July 2018, the child went with the father to a family reunion in North
Carolina. When the father left the military in 2020, he said, he returned
to Birmingham and began seeing the child every other weekend.
After the child was born, the mother and the child lived with the
mother's mother ("the maternal grandmother") in Vestavia. The mother
testified that, in March 2019, when the child was three or four years old
and she was nineteen years old, she married the husband. In April 2019,
they moved to Tennessee, and the father and the paternal grandmother
would visit the child. The father took the child to the beach for a week in
December 2019. The mother and the father agreed that they had had a
cordial relationship throughout his time in the military and, indeed, had
enjoyed that relationship up until there was a confrontation between her
stepfather ("the maternal step-grandfather") and the father in January
2022.
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In March 2020, the mother and the husband had a child ("the
sibling"). The father said that, when the mother was pregnant with the
sibling, she told him that her marriage to the husband was "rocky." He
also said that the mother "hit on" him and sent him suggestive
photographs of herself. The mother explained that, when she sent the
father the photographs, she was at a low point and that her marriage was
in what she called "a light patch." At the time of the trial, though, the
mother said that her marriage with the husband was "great."
The mother said that she, the husband, and the children, who she
described as inseparable, moved back to Alabama from Tennessee, once
again living with the maternal grandmother, but that she "really ha[d]
no idea" when that move took place. She first indicated it was in October
2019, then changed her response to October 2020. They moved back to
Alabama because the husband was promoted, she said.
When the mother, the husband, and the child moved back to
Alabama, the mother said, the father resumed seeing the child at least
every other weekend, and the father took the child to the beach again in
December 2020. She said that the father was involved in Boy Scouts with
the child and, through the Scouts, took the child camping overnight. The
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father testified that from 2020 until the litigation began, he saw the child
every other weekend. He also attended the child's extracurricular
activities, including the child's karate classes and Cub Scout events; they
would talk on FaceTime regularly; and, they took vacations together.
In April or May 2021, the mother, the husband, and the sibling
moved to South Carolina because of the husband's job. The mother said
that they left the child with the maternal grandmother so that he could
finish the schoolyear. The mother testified that it was more important for
her to leave the child with the maternal grandmother for two weeks so
that she could unpack and have his room ready for him than to wait for
him to finish school before going. During the summer, when the child was
in South Carolina, the father came to visit, the mother said. She said that
she did not recall whether the father wanted to have the child for summer
visitation, but, regardless, she did not let the child go with the father for
a visit during the summer of 2021.
In August 2021, the mother said, she returned the child to live with
the maternal grandmother in Alabama because, she said, she did not
believe that the schools in South Carolina were adequate. She returned
to South Carolina with the husband and the sibling but, she said, the
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family never intended to stay there permanently. The mother said that
she mentioned the child's return to Alabama to the paternal grandmother
but that she did not tell the father because, she said, when the father and
the child were "on FaceTime," she heard the child tell the father that he
was returning to Alabama.
The father testified that he first learned that the child had returned
to live at the maternal grandmother's house in Vestavia when he asked
the mother if he could FaceTime or talk on the phone with the child. The
mother responded that he would have to contact the maternal
grandmother because the child was living with her again. He said that
he talked with the maternal grandmother so that he could resume his
regular visitation schedule with the child, but she denied him visitation
for a few weeks, until the end of August, when Cub Scouts started. At
that time, the father said, he and the child returned to doing what he said
were their "regular activities."
While the mother was living in South Carolina without the child,
the father and the paternal grandmother asked if they could have the
child for a week at Christmas. The mother said that she refused that
request because, at that time, they were seeing the child more than she
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was and she would be in Birmingham to see him. The father testified
that, while the mother lived in South Carolina, she told him that she was
deferring to the maternal grandmother's decisions regarding visitation.
The mother, however, denied that she had told the father that he would
have to arrange visits with the child through the maternal grandmother.
The mother said that the maternal step-grandfather and the father
had a confrontation in January 2022. The father testified that, on the
occasion of that confrontation, he had gone to the child's karate class and
"noticed that things seemed to be a little off." He said he approached the
maternal step-grandfather to ask whether everything was okay, and the
maternal step-grandfather "pretty aggressively" made accusations
against him that he said were not true. The father said that he asked the
maternal step-grandfather whether the child had seen a doctor, but the
maternal step-grandfather did not respond. The father said he was
"extremely concerned" about the child and reached out to the mother,
who initially spoke with him on the phone. He said that, after that initial
contact, the mother did not respond to him again for two weeks. In the
texts and voice messages he left for the mother during that interim, the
father said, he told the mother that the maternal grandparents were no
9 CL-2023-0561
longer communicating with him and that he wanted her to help him
address those issues.
The mother testified that, in January 2022, the father sent her a
text message asking her to return to Alabama so that they could deal
with an issue the child was having. She said that she responded to the
father, saying that the child's issues, including bedwetting, did not alarm
her. She said that living away from the child with the sibling and the
husband were not the cause of the child's problems, adding that that
thought "absolutely did not" cross her mind. The mother returned to
Alabama the second week of February 2022, when, she said, she was
served with papers regarding this case.
The juvenile court asked the mother why the child was receiving
therapy. The mother said she thought "he was being groomed or had been
sexually -- something sexually [sic] had happened" with the father or
someone at the house where the child was staying. The juvenile court
asked the father's attorney to respond, and she said that the mother
knew the allegation was not true. She added that the child was urinating
and defecating in the bed and that the father was concerned that the
problem arose because the mother was living in another state while the
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child lived with the maternal grandparents. She also observed that the
mother had agreed to allow the father to have unsupervised overnight
visits with the child.
The father told the juvenile court that he was asking for the parents
to share custody of the child every other week and to be able to FaceTime
with him regularly without interference from the mother. He also said
that he would like for the child to have his surname. The father said that
he lived less than ten minutes from the child's elementary school in
Vestavia, but, in the past, the mother had not allowed him to pick up the
child from school or to go to the school. He said that she had also failed
to advise the father of the times for some of the child's extracurricular
activities. He told the juvenile court that he would like access to the
school and to the schedule of the child's extracurricular activities.
The mother told the juvenile court that she would like both legal
and physical custody of the child and that she wanted to keep her maiden
name as his last name. She testified that the child knew his last name
and could read and write that name, that the child's school and medical
records and awards were in that name, and that she thought he would be
confused if his last name were changed. She also requested child support.
11 CL-2023-0561
After the first day of testimony, the juvenile court entered an order
on December 20, 2022, adjudicating the father's paternity and
establishing a Christmas-visitation schedule. On April 28, 2023, the
juvenile court entered a judgment finding that the mother and the father
had both been involved in the child's life and that both were "equally able
to provide love, care, nurturing and stability" to the child. Based on that
finding, it awarded the mother and the father joint legal and joint
physical custody, rotating physical custody week to week. The juvenile
court also established a holiday and school-vacation schedule for the
parents to follow. Additionally, the juvenile court ordered that the
mother to continue to provide health-insurance coverage for the child and
directed the parties to equally divide all noncovered medical expenses,
including, but not limited to, dental, orthodontic, and optical care
expenses incurred on behalf of the child. It also ordered that the father's
last name be added to the child's as a hyphenated name, making the
child's last name W.-P.
The mother filed a motion to alter, amend, or vacate the judgment
and a motion to stay the judgment on April 30, 2023. The juvenile court
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denied both motions on May 3, 2023. The mother appealed to the circuit
court and ultimately to this court.
Standard of Review
When a juvenile court makes a custody determination based on ore
tenus evidence, its findings in support of that determination are accorded
a presumption of correctness on appeal. Ex parte Bryowsky, 676 So. 2d
1322, 1324-26 (Ala. 1996). An appellate court will not reverse the juvenile
court's custody judgment "unless the evidence so fails to support the
determination that it is plainly and palpably wrong, or unless an abuse
of the trial court's discretion is shown. To substitute our judgment for
that of the trial court would be to reweigh the evidence. This Alabama
law does not allow." Phillips v. Phillips, 622 So. 2d 410, 412 (Ala. Civ.
App. 1993).
Analysis
The mother first contends that the trial court erred in awarding the
parties "equal legal and physical custody" and an every-other-week
custody schedule, calling the custody change "drastic."
Because there had been no previous court order concerning the
custody of the child, the April 28, 2023, judgment constituted an initial
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custody determination. In Steed v. Steed, 877 So. 2d 602, 604 (Ala. Civ.
App. 2003), this court explained that, when a trial court makes an initial
custody determination, neither party is entitled to a presumption in his
or her favor. The trial court must decide what custody arrangement is in
the best interests of the child. Steed, 877 So. 2d at 604. To determine the
child's best interests, trial courts are to consider a number of factors,
including but not limited to, the age and sex of the children,
"the characteristics and needs of each child, including their emotional, social, moral, material and educational needs; the respective home environments offered by the parties; the characteristics of those seeking custody, including age, character, stability, mental and physical health; the capacity and interest of each parent to provide for the emotional, social, moral, material and educational needs of the children; [and] the interpersonal relationship between each child and each parent,"
as well any other relevant matter the evidence demonstrates. Ex parte
Devine, 398 So. 2d 686, 696-97 (Ala. 1981).
In 1996, after Devine was decided, our legislature made clear that,
when deciding issues of child custody after parents separate or divorce,
"[i]t is the policy of this state to assure that minor children have frequent
and continuing contact with parents who have shown the ability to act in
the best interest of their children and to encourage parents to share in
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the rights and responsibilities of rearing their children." § 30-3-150, Ala.
Code 1975. Thus, in every case involving custody, the trial court must
consider whether to order joint custody, and,
"[i]n determining whether joint custody is in the best interest of the child, the court shall consider the same factors considered in awarding sole legal and physical custody and all of the following factors:
"(1) The agreement or lack of agreement of the parents on joint custody.
"(2) The past and present ability of the parents to cooperate with each other and make decisions jointly.
"(3) The ability of the parents to encourage the sharing of love, affection, and contact between the child and the other parent.
"(4) Any history of or potential for child abuse, spouse abuse, or kidnapping.
"(5) The geographic proximity of the parents to each other as this relates to the practical considerations of joint physical custody."
§30-3-152(a), Ala. Code 1975.
In support of her contention that an award of joint physical custody
is not in the child's best interests, the mother asserts that the child had
lived primarily with her since his birth, that she had been responsible for
the child's primary care since his birth, that the parties had been
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operating under the same visitation schedule for most of the child's life
and the child was doing well under that schedule, and that the father did
not live in the same school district as the child, who had attended only
one elementary school.
As mentioned, the juvenile court found that both parents had been
"very involved" in the seven-year-old child's life and were equally able to
provide love and care for the child. Evidence indicated that the father
took an active role in sharing Cub Scout activities with the child, as well
as other extracurricular activities like karate. As the mother noted, the
father had regularly exercised visitation with the child and the two had
spent vacations, holidays, and extended-family gatherings together.
Before any court order was in place, the father provided health insurance
for the child and secured benefits for him as a dependent when he was
serving in the military. The father also regularly provided financial
support for the child for numerous years, again without having been
ordered to do so.
When the child was six years old, the mother returned him to
Birmingham to live with the maternal grandparents while she, the
husband, and the sibling lived in South Carolina. Evidence suggests that,
16 CL-2023-0561
during that time, the mother ceded decisions regarding the child to the
maternal grandmother. The child's living arrangement during that time
cuts against the mother's assertions that she had been the child's
primary caregiver his entire life and her claim that the child and the
sibling were "inseparable." The mother also denied that living in a
different state than her six-year-old child could have caused that child to
resume wetting the bed or the other unspecified problems that the father
was told about. Additionally, evidence indicates that, after the January
2022 confrontation between the father and the maternal step-
grandfather at the child's karate lesson, the relationship between the
father and the mother was not as cordial as it had been, and the mother
came to believe that the child was being "groomed" by the father or
someone connected to the father. She did not present any evidence to
support that belief.
Before the confrontation, the parties agreed, they had been able to
cooperate and make joint decisions regarding the care of the child. When
the trial took place, the child was enrolled in elementary school in
Vestavia, and, the father said, the school was less than ten minutes from
his house.
17 CL-2023-0561
Based on the evidence, the juvenile court reasonably could have
been convinced that joint legal and joint physical custody, including an
every-other-week custody schedule, could be implemented easily and that
spending equal time with both parents was in the child's best interests.
Nothing in the record suggests that that decision was plainly and
palpably wrong. Therefore, the juvenile court's custody award is due to
be affirmed.
The mother next contends that the juvenile court erred in changing
the child's surname from W. to W.-P. because, she says, the father failed
to demonstrate that good cause existed for the name change. Section 26-
16-636(e) of the Alabama Uniform Parentage Act, § 26-17-101 et seq.,
Ala. Code 1975, provides that, in an action to adjudicate paternity, "[o]n
request of a party and for good cause shown, the court may order that the
name of the child be changed." See also J.M.V. v. J.K.H., 149 So. 3d 1100,
1104-05 (Ala. Civ. App. 2014). In J.M.V., this court reversed the judgment
of the trial court changing the child's surname, concluding that "a parent
petitioning to change the name of the child must present evidence
showing that the change would benefit the child in some positive manner"
and that the father, who was seeking the name change, had failed to meet
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that burden. J.M.V., 149 So. 3d at 1105-06. In support of our holding, we
pointed out that, among other things, the child knew his last name as the
mother's surname, that all of his records identified him by that name,
and, while not dispositive, that "the father waited over three years to
establish his paternity, all the while knowing that the child was not
bearing his surname and that the child would become accustomed to his
given name." Id. at 1106. See also K.G. v. M.E., 355 So. 3d 344, 348-49
(Ala. Civ. App. 2021) (reversing judgment changing child's last name
because father seeking name change failed to present evidence that such
a change would promote child's best interests).
Here, the mother testified that the child knew his last name and
could read and write that name, that the child's medical and school
records and his awards were in that name, and that she thought he would
be confused if his last name were to be changed. The father elicited
evidence demonstrating that the mother, the sibling, and the child's
maternal grandparents did not share the child's last name, but he
presented no evidence demonstrating that a name change would promote
the child's best interests. Although the father argues in his brief that
"[t]here was no evidence presented that the change of the minor child's
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name would have a detrimental effect," this court has previously rejected
that argument as sufficient to support a name change, writing that "[a]
court may not change the name of a child on the ground that the change
would not cause the child any particular detriment." J.M.V., 149 So. 3d
at 1106.
Because the father failed to demonstrate that a change of last name
would promote the child's best interests, we must reverse the judgment
as to this issue. Accordingly, we need not address the mother's contention
that the juvenile court erred by not appointing a guardian ad litem to
represent the child's best interests regarding the father's request to
change the child's last name.
The mother next contends that the juvenile court erred in failing to
establish what she called "tiebreaker" authority for the parents in case
they are unable to agree on certain decisions regarding the child,
including medical decisions and decisions regarding the child's
participation in academic, religious, cultural, civic, and athletic
activities. In support of her argument, the mother cites § 30-3-153, Ala.
Code 1975, which provides that, "to implement joint custody, the court
shall require the parents to submit, as part of their agreement, provisions
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covering matters relevant to the care and custody of the child," including
decisions regarding the child's education, medical and dental care,
holidays and vacation time, and religious, civic, cultural, and athletic
activities. (Emphasis added.) The statute further provides that, as part
of their agreement, the parents are to designate the parent who is to have
primary decision-making authority over those decisions, failing which
the trial court "shall set the plan." § 30-3-153(b). It is undisputed that the
parties did not reach an agreement regarding joint custody in this case,
and that the mother had, in fact, opposed joint custody in the juvenile
court, just as she does on appeal.
The mother relies on Ford v. Ford, 3 So. 3d 872 (Ala. Civ. App.
2008), to support her argument. In that case, the father had argued that
the trial court erred by awarding the parties joint custody of their
children without setting out a plan for joint custody, id. at 874, although
nothing in the opinion indicates that the parties had agreed to joint
custody. This court agreed with the father's argument, relying on § 30-3-
153(a) to hold that, "in cases in which joint custody is awarded, a plan for
implementing the joint-custody arrangement is required." Id.
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Shortly thereafter, however, in Ratliff v. Ratliff, 5 So. 3d 570 (Ala.
Civ. App. 2008), this court reached the opposite conclusion. In that case,
we declined to reverse a trial court's judgment awarding the parties
"shared custody" with "shared parental responsibility" for their minor
children based on the wife's argument that the trial court had erred by
failing to designate which parent should have final decision-making
authority if they disagreed. We explained:
"§ 30-3-153[, Ala. Code 1975,] applies solely to joint-custody agreements; the parties did not agree to joint custody in this case. Section 30-3-151(2) gives the trial court the discretion to establish a parenting plan when awarding joint custody. See Ala. Code 1975, § 30-3-151(2) ('The court may designate one parent to have sole power to make certain decisions while both parents retain equal rights and responsibilities for other decisions.' (emphasis added))."
Id. at 585.
We cannot reconcile the holding in Ford with the holding in Ratliff.
In neither case did the parents agree to a joint custody arrangement, but,
in Ford, we determined that the trial court was required to implement a
joint custody plan and in Ratliff, we held that it was not. The decision in
Ratliff was based on the plain language of § 30-3-153 and § 30-3-151 that,
when taken together, provides that when there is no joint-custody
agreement between the parents, the trial court has the discretion
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whether to give one parent the authority to make certain decisions
regarding the child's medical, educational, and extracurricular activities,
and that only when the parties have entered into an agreement providing
for joint custody is the trial court required to ensure the inclusion of a
parenting plan in its custody judgment. Today, we conclude that the
rationale for the holding in Ratliff is the better reasoned, and we overrule
Ford insofar as it is inconsistent with Ratliff.
As noted above, the parties in this case did not agree to joint
custody. Thus, the juvenile court had discretion whether to include a
parenting plan designating a "tiebreaker" with final decision-making
authority regarding the child in its judgment providing for joint custody.
In light of the evidence indicating that, before the confrontation between
the father and the maternal step-grandfather, the mother and the father
were able to work together to make decisions on behalf of the child, we
conclude that the juvenile court did not exceed its discretion in declining
to do so.
Finally, the mother contends that, in light of its award of joint
physical custody, the juvenile court erred in making her solely
responsible for maintaining and purchasing health insurance for the
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child. However, the mother failed to raise this issue at trial or in her
motion to alter, amend, or vacate the judgment. It is well settled that an
appellate court's "review is restricted to the evidence and arguments
considered by the trial court." Andrews v. Merritt Oil Co., 612 So. 2d 409,
410 (Ala. 1992). By failing to preserve this issue for appellate review, the
mother has waived it. Even if she had preserved it, however, we find no
merit to her argument.
The mother contends that, because the evidence showed that the
father earned approximately $4,000 per month and that she was a "stay-
at-home mother" who was no longer earning an income as a dental
assistant, the juvenile court should not have ordered her to continue to
maintain health-insurance coverage for the child. The evidence indicated
that the mother was already providing health insurance for the child, and
she had not sought assistance from the father to cover its cost, nor did
she ask the juvenile court during the trial to have the father pay the cost
or any portion of the cost of that insurance. Based on the evidence and
the mother's argument, we cannot conclude that the juvenile court's
order directing the mother to continue to provide the child with health
24 CL-2023-0561
insurance constituted an abuse of discretion or was plainly and palpably
wrong. See Burkett v. Burkett, 367 So. 3d 409, 418 (Ala. Civ. App. 2022).
Conclusion
For the reasons set forth above, the judgment of the juvenile court
is reversed insofar as it ordered a change to the child's last name. The
remainder of the judgment is affirmed. The cause is remanded to the
juvenile court for it to enter a judgment consistent with this opinion.
The father's request for an attorney fee on appeal is denied.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
Moore, P.J., and Hanson and Lewis, JJ., concur.
Edwards, J., concurs in the result, without opinion.