J.M.V. v. J.K.H.

149 So. 3d 1100, 2014 WL 1098983, 2014 Ala. Civ. App. LEXIS 51
CourtCourt of Civil Appeals of Alabama
DecidedMarch 21, 2014
Docket2120798
StatusPublished
Cited by6 cases

This text of 149 So. 3d 1100 (J.M.V. v. J.K.H.) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
J.M.V. v. J.K.H., 149 So. 3d 1100, 2014 WL 1098983, 2014 Ala. Civ. App. LEXIS 51 (Ala. Ct. App. 2014).

Opinion

MOORE, Judge.

J.M.V. (“the mother”) appeals from a judgment of the Montgomery Circuit Court (“the trial court”) insofar as it ordered that the surname of the parties’ child be changed. We reverse.

Procedural Background

On August 1, 2012, J.K.H. (“the father”) filed a petition in the trial court seeking to establish the paternity of E.V. (“the child”), to correct the child’s birth certificate to list him as the child’s father and to change the child’s surname, to establish custody of and visitation with the child, and to establish child support. The mother answered the petition on November 18, 2012. After a trial, the trial court entered a judgment on May 31, 2013, that, among other things, declared the father to be the legal father of the child; changed the child’s surname; awarded the mother physical custody of the child; and awarded the father six weeks’ visitation with the child in the summer, as well as visitation during a part of each Christmas holiday, during spring break and on Thanksgiving in odd years, and during fall break in even years. Both parties filed postjudgment motions, and the mother subsequently filed a notice of appeal on June 13, 2013.1 On August 7, 2013, the trial court denied both postjudgment motions and stayed enforcement of that part of its judgment changing the surname of the child pending resolution of the mother’s appeal attacking only that aspect of the trial court’s judgment.

Facts

The mother is an officer in the United States Air Force, and the father is an enlisted member of the Air Force. The parties were never married; they met through their employment and began a sexual relationship, which resulted in the mother’s becoming pregnant with the child. The evidence indicated that the parties’ relationship deteriorated after the [1102]*1102mother became pregnant. The parties testified that the father had wanted to be present for the birth of the child but that the mother had opposed his presence out of concern that their careers could be adversely affected if other members of the Air Force learned that she, an officer, had engaged in a sexual relationship with the father, an enlisted man. The parties stopped speaking to each other about a month before the child was born, and the father was not notified when the mother went to the hospital to give birth to the child. The child was born on September 30, 2009, in Alabama. The mother did not list the father on the child’s birth certifí-cate, and she gave the child her surname.

It is undisputed that the mother had been the primary caregiver for the child and that the father had visited with and supported the child during the first two and a half years of his life. The father testified that he had exercised visitation with the child in the presence of the mother except for one two-week period in May 2012 when the child had stayed with him while the mother was unavailable to care for him due to her work obligations. The mother testified that the father had visited the child in her home between 10 and 12 times and that they had met for visitation on 3 other occasions. The father testified that he had paid $750 per month in child support from the time the child was born until May 2012.

The parties became embroiled in a dispute during the May 2012 visitation because the father had not allowed the mother to have telephone contact with the child for two days; the mother threatened to have law-enforcement officials pick up the child if the father did not allow her to contact the child. The father testified that the mother had spoken to the child every day during the visitation up until that point. The mother testified that the father had told her that he does not talk to the child every day, so why should she. The father testified that he had stopped paying child support at that time because the mother informed him that he had no legal rights to the child. The mother maintained that it was the father who had stated that he did not have any legal rights to the child before he stopped making child-support payments. After May 2012, the father did not see the child except through “Skype,” which is a means of communicating via a computer using a Web camera, and even that contact ceased after January 2013. The father testified that the mother had not responded to his attempts to contact her. The evidence indicated that the mother would soon be deployed to Washington, D.C., while the father would remain stationed in Florida, 500 miles away.

The father testified that he had talked to the mother about his desire to change the child’s surname and that she had said it would complicate her situation being an officer. He testified that he does not think the change would be upsetting to the child. The mother testified that she is opposed to changing the child’s name. She testified that, at the time of the trial, the child was three years and seven months old and that he knows his full name. She testified that she thinks it would be very confusing for the child to change his name. She also testified that the child’s passport, medical records, and educational records all have the child listed as “E.V.” She testified that she believes the name change might be harmful to the child due to the possibility of its creating confusion about his identity. She also testified that she is the child’s primary caregiver and that she and the child have the same surname. The mother testified that she does not recall the father’s stating at the time of the child’s birth that he wanted the child to have his surname; she testified that, even if the [1103]*1103father had been present at the child’s birth, she would not have allowed the father to be identified on the birth certificate or allowed the child to have his surname.

The mother testified that the father had recently contacted her leadership in the Air Force and informed them of their relationship. She testified that their relationship is known only to the leadership and is not widely known throughout the Air Force and that it is better for her career that it not become widely known due to her having to supervise enlisted members.

The Trial Court’s Judgment

The trial court stated its rationale with regard to changing the child’s surname:

“[W]ouldn’t it be good cause if the Court considered the fact that during the birth of the child, the father testified that he was not present at the birth due to the fact that the mother thought his presence would jeopardize her career, and he was not allowed to be present, therefore, not allowed to sign the appropriate paperwork to have his name placed on the birth certificate, and possibly the child’s name named in his last name?
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“... [T]he testimony [was] that the father was not allowed to be there during the child’s birth, or he attempted to be there and was not allowed to be there. The child [i]s not yet four years old. He’s relatively young. The Court does not see this as a detrimental effect on him in any way by changing his name at such a young age. It’s certainly something that he can become accustomed to, given his relatively infant age at the time that the name change has been ordered to take place.
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Cite This Page — Counsel Stack

Bluebook (online)
149 So. 3d 1100, 2014 WL 1098983, 2014 Ala. Civ. App. LEXIS 51, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jmv-v-jkh-alacivapp-2014.