Likins v. Logsdon

793 S.W.2d 118, 1990 Ky. LEXIS 59, 1990 WL 87594

• Court: Kentucky Supreme Court
• Decided: June 28, 1990
• Docket: 89-SC-728-DG
• Status: Published

Opinions

LEIBSON, Justice.

This is a dispute over the extent to which a divorced father has a right to oppose legal proceedings initiated by his former wife, now remarried, seeking to change the surname of the children born of their marriage to that of their step-father. The children are Jennifer Michelle Likins, born January 31, 1976, and Julie Raquelle Likins, born May 11, 1978. Their parents were divorced in 1981, and their mother then married Wesley Logsdon in 1982 and took up residence with her new husband in Hart County.

The present action now on appeal starts with a Verified Petition for A Change of Names filed by the mother in Hart District Court in September, 1987. But before the present suit was filed there is a long history of hostility between these divorced parents demonstrated by portions of the record from Hart Circuit Court filed with the record in this case, involving disputes over payment of child support, visitation, and unilateral, informal steps taken by the mother to change the children’s name.

The present petition filed by the mother seeks to invoke the jurisdiction of Hart District Court to change the name of the children pursuant to KRS 401.020. The change of names petition states that “for the past five years these infants have been using the last name of their step-father, Wesley Logsdon, ... but by proper orders of the Hart Circuit Court, the children were directed to use the name of Likins on all official records,” that the existing situation causes “confusion and embarrassment to the infants, Jennifer and Julie, and that it would be in [their] best interest ... for the court to enter an Order officially and legally changing their names.”

KRS 401.020 extends to a child’s parent the right to “have the name of a child under the age of eighteen (18) changed by the district court.” It provides in pertinent part:

“However, if one (1) parent refuses or is unavailable to execute the petition, proper notice of filing the petition shall be served in accordance with the Rules of Civil Procedure.”

The questions are (1) to what extent did the father, who was entitled to “notice” under this statute, have a right to contest the change of names, and (2) what are the standards to be applied in deciding this issue when it is contested?

The father, Morris Likins, was obviously deeply interested in having his children continue to bear his name, even though his status has been changed to that of only a visiting parent. This issue had been the subject of litigation in the Circuit Court proceedings, culminating in an order entered February 8, 1985, enjoining the mother to “forthwith change the subject children’s official school enrollment documents to reflect their true last name as Likins.” The Circuit Court opinion rendered at that time referred to the children’s wish to use the name “Logsdon” and then stated, “once the children acquire the desired feeling toward Morris, this temporary phenomenon will no doubt disappear.” The “phenomenon” did not disappear. Rather than ceasing to stir the winds of discontent, the mother simply shifted direction, blowing into a new forum.

The father filed an Answer to the District Court Petition, alleging inter alia “that this action is merely a method of circumventing the clear Orders of the Hart Circuit Court.” After extensive briefing and an evidentiary hearing, the District Court ordered the children’s surnames changed to Logsdon. The record of any conduct on the part of the father that would justify depriving him of having his children bear his surname is either insignificant or nonexistent, depending on one’s point of view. The primary reason, if not the exclusive reason for the change of name, apparent from the District Court findings, is that the children “are adamant in their demand to be known as Logsdon.” The only conduct in the record to explain their hostility was an altercation at a Bowling Green shopping center in early 1984 between the children’s paternal grandmother and their mother, witnessed by the children, wherein the grandmother physically attacked Bobbi after she refused to permit the grandmother time to buy Christmas presents. The details of this incident, which did not involve Morris Likins in any way, were before the Circuit Court at the time when it mandated the use of the name “Likins” in the school records. In sum, there was no evidence against Morris Li-kins that would justify depriving him of having his children bear his name unless the children’s desire, borne of their mother’s hostility, is sufficient.

KRS Chapter 401, Change of Name, has two sections. The first, KRS 401.010, permits “[a]ny person at least eighteen of years of age” to “have his name changed by the District Court,” without restrictions. The second section, KRS 401.020, as previously noted, covers change of name for a child and expresses no specific restriction other than “proper notice of the filing of the petition” must be served on a parent who “refuses or is unavailable to execute the petition.” Nevertheless, it was the view in both District Court, and on appeal to Circuit Court, that the name of a child should not be changed by the District Court unless to do so is in the child’s “best interest.” District Court decided that it was in the best interest of the children to permit them to change their name because “they are adamant in their demand to be known as Logsdons,” and “[t]o continue to mandate that their official records use the name Likins serves only to cause confusion and turmoil.” Circuit Court reversed, “agree[ing] with the lower Court that the best interests of the children should be the ultimate test” but “believpng] that before a moving party can succeed under the ‘best interests’ test, it is incumbent upon such party to prove through ‘clear and convincing’ proof that the name change will promote the best interests of a child or children.” The Circuit Court Opinion states:

“Such higher burden of proof is believed necessary in order to balance a natural father’s protectable right to have his children bear his name, Burke v. Hammonds, Ky.App., 586 S.W.2d 307 (1979), against what is best for the child or children.”

Circuit Court concluded the proof was far short of clear and convincing. In a split decision, the Court of Appeals reversed “with directions that the district court’s order be reinstated.” We have accepted discretionary review, and we now reverse. We agree with the Circuit Court that the evidence here is insufficient to justify a change of names, but we will articulate the reasons in a somewhat different fashion.

All three courts below have cited to Burke v. Hammonds, Ky.App., 586 S.W.2d 307 (1979) and Blasi v. Blasi, Ky., 648 S.W.2d 80 (1983) in seeking the appropriate structure for deciding these cases.

Burke recognizes the right of a father, in post-divorce proceedings, after an evi-dentiary hearing, to obtain an order permanently enjoining the mother from changing the names of their children. It finds this authority in KRS 403.110, stating:

“Our marriage dissolution statute mandates that it ‘shall be liberally construed and applied to promote its underlying purposes.’ [footnote omitted] Two of these are the safeguarding of family relationships and the mitigating of potential harm to spouses and their children caused by a dissolution, [footnote omitted].” Burke, 586 S.W.2d at 308.

The Court reasons:

“No one can seriously argue that changing a child’s name from that of his natural father to that of his step-father could not weaken the emotional bond between the child and his father, or that such a change would necessarily be in the child’s best interest. Further, it is recognized that a natural father has a protect-able right to have his child bear his name, 57 Am.Jur.2d Name. § 14 (1971)....” Id. at 309.

The Court concludes that it will not “permit an unsubstantial statutory right to apply for a name change [KRS 401.020], to take precedence over an express statement of public policy favoring preservation of family relationships [KRS 403.110(1) and (3) ].” We agree with the Burke interpretation of the interplay between the divorce statute and the change of name statute, and we adopt it accordingly.

Nevertheless, we recognize that in Blasi, supra, our Court held that the Circuit Court had no jurisdiction to order a divorced mother to petition the District Court to change a child’s name back to that of the child’s father after a previous petition in District Court had rendered the change of the child’s name a fait accompli. The problem in Blasi was procedural. Circuit Court has appellate but not supervisory jurisdiction over District Court. It has no power to do indirectly what it cannot do directly. However, the present case involves the appellate jurisdiction of the Circuit Court, not any usurpation of supervisory power. Thus, in the present case, unlike Blasi, the question of whether the facts presented sufficient reason for District Court to grant a change of name remained open for appellate review.

Blasi recognized that the “former version of KRS 401.020, under which [the Bla-si] child’s name was changed, was flawed in that it required no notice to the nonpeti-tioning parent.” Since the statute was thereafter “amended to provide for mandatory notice and an implied right to be heard, ... [i]t is thus unnecessary for the courts to fashion a judicial remedy [because] an adequate remedy has been provided by statute.” Id. at 81. This language suggesting an “adequate remedy” now exists because the “notice” requirement presages the present result. By recognizing this “mandatory notice and an implied right to be heard” the decision further implies a divorced father’s right to have his children continue to bear his name unless such right has been forfeited by his own misconduct or other extraordinary circumstances. As stated in the Concurring Opinion in Blasi:

“The name of the child is not merely nominal. It is an essential ingredient in the relationship that continues between the child and the child’s father after the dissolution of marriage takes place.” Leibson, J., Concurring, 648 S.W.2d at 82.

The Circuit Court has expressed this concept by using the term “clear and convincing evidence” borrowed from Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). See also N.S. v. C and M.S., Ky., 642 S.W.2d 589 (1983). But the clear and convincing evidence standard addresses the question of termination of parental rights, rather than the much less onerous attenuation accompanying a change of name. We agree with the District Court that, as with custody matters, in dealing with a change of name the issue should be determined by a preponderance of the evidence rather than by requiring clear and convincing evidence. However, we disagree with District Court that the best interest of the child is reduced to a simple question of the child’s wishes in the matter, regardless of how strongly expressed, and regardless of claims of inconvenience attaching to the use of the divorced father’s name. Clearly the father has a right and a protectable interest in having his children bear his name which is not forfeited on insubstantial grounds. The best interest of the child as well as that of the father is involved in maintaining the relationship with the divorced father fostered by bearing his name, unless, of course, there are substantial reasons to the contrary, and these reasons do not include mere inconvenience and the desires of a child generating from the hostility of a custodial parent.

We borrow substantially from our reasoning in Quisenberry v. Quisenberry, Ky., 785 S.W.2d 485 (1990), involving a similar question, a motion for a change of child custody after the original decree. A strong argument was made in Quisenberry that the predominant consideration in deciding whether a change of custody would be in the best interest of the child should be the child’s strongly expressed desire to live with one parent rather than the other. We refer to the fact that psychological evidence “suggests that the child is doing surprisingly well considering the hostility between the parents and their inexcusable manipulative behavior.’’ Unfortunately, this type of post-divorce misconduct is a form of child abuse permeating the record in all too many cases, including the present one. The policy of the law is to discourage using children as weapons against a former spouse to the extent that it is possible to do so. As we stated in Quisenberry:

“A key factor in the emotional health of a child is the level of tension between the mother and father. A parent truly concerned with the best interest of his child will work to reduce the level of this tension, after a divorce as well as during the marriage. Litigation is counterproductive to this end, and the statutes were structured to discourage a post-judgment litigation....”

While we do not recognize the same high threshold for a change of name as the statute requires for a change of custody, we recognize that similar policy reasons exist to discourage post-divorce litigation on insubstantial grounds to the detriment of the children involved. We require a parent seeking to attenuate the relationship between her former spouse and his child to present objective and substantial evidence of just cause and significant detriment to the child before the child’s name is changed where the petition for change of name is contested.

The most overpowering circumstance in this record is that a matter that should be of little or no consequence, that should have been treated by the custodial parent with supreme indifference if her concern was for the best interest of the child, has been hostilely pursued to the point that it could well cause the children emotional damage of a significant and permanent nature. A scar has been caused where there need never have been a wound. The children should have been protected from this experience rather than subjected to it. Within the bounds of the controlling statutes, we view it as our responsibility to use standards of statutory interpretation that discourage using children as weapons to abuse a former spouse rather than to use standards that will encourage such abuse.

We reverse the Court of Appeals and reinstate the judgment of the Hart Circuit Court.

STEPHENS, C.J., and COMBS, GANT, LAMBERT, LEIBSON and VANCE, JJ„ concur. WINTERSHEIMER, J., dissents by separate opinion.