Powers v. Tiebauer

939 So. 2d 749, 2005 WL 2036896
CourtMississippi Supreme Court
DecidedAugust 25, 2005
Docket2003-CP-01877-SCT
StatusPublished
Cited by24 cases

This text of 939 So. 2d 749 (Powers v. Tiebauer) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Powers v. Tiebauer, 939 So. 2d 749, 2005 WL 2036896 (Mich. 2005).

Opinion

939 So.2d 749 (2005)

Jessica POWERS f/k/a Jessica R. McDonald
v.
Eric TIEBAUER.

No. 2003-CP-01877-SCT.

Supreme Court of Mississippi.

August 25, 2005.

*750 Appellant, pro se.

Thomas T. Buchanan, attorney for appellee.

Before WALLER, P.J., GRAVES and RANDOLPH, JJ.

GRAVES, Justice, for the Court.

¶ 1. On March 21, 1999, Rachel Caitlin McDonald (Rachel) was born out of wedlock to Jessica Powers f/k/a Jessica McDonald (Powers). Following a paternity test which established Eric Tiebauer as Rachel's natural father, a hearing was held to adjudicate the same. Prior to the court's proposed final order, Tiebauer petitioned to change the surname of Rachel to his own despite Powers's objections. The chancellor granted his petition, ordered that Rachel's surname be changed to Tiebauer, and later ruled that Powers had abandoned her claim in a subsequent hearing. Powers now appeals, and we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. At the time of Rachel's birth, Tiebauer and Powers were adult residents of Mississippi, and both were unmarried. Approximately eight months following Rachel's birth, Eric filed with the Chancery *751 Court of Newton County, Mississippi a petition to determine paternity and for other relief. The chancellor subsequently ordered the parties to submit to a paternity test which revealed that Eric was Rachel's biological father. Thereafter, Eric filed a motion for summary judgment requesting that the chancellor enter an order declaring him the natural father of Rachel as well as to award him permanent visitation.

¶ 3. On August 25, 2000, a hearing was held to adjudicate that Tiebauer was the biological father of Rachel based on the paternity test results. A temporary visitation schedule was also established. As the proposed final order was being drawn up by Tiebauer's attorney, a provision to change Rachel's surname was included despite the objections raised by Powers. A second hearing was set for November 9, 2000, to obtain an order for other issues, including a determination of child support and Tiebauer's petition for the name change. As the hearing commenced, Tiebauer's counsel informed the court that he had included a provision to the proposed final order changing Rachel's surname and that Powers opposed the change. The chancellor granted the name change, noting that it was "a legislative matter, but I would probably do it, anyway." On November 14, 2000, the chancellor entered a final order which included the following provision: "That Rachel McDonald shall have the name of Rachel McDonald Tiebauer; the birth certificate shall be changed to reflect the correct name of the minor child; as well as reflecting that Eric Tiebauer is the natural father of said minor child."

¶ 4. On November 27, 2000, Powers filed a motion to alter or amend the judgment with regard to the name change. She argued that changing Rachel's surname would necessitate numerous changes to government documents including birth certificate, social security records, medical records, and school records. Further, Powers argued that the name change would result in emotional harm and confusion to Rachel. Neither Powers nor her counsel took any further action to set a hearing or otherwise prosecute the motion.

¶ 5. A final hearing of paternity was set for July 27, 2003. With regard to Powers's motion to alter or amend, the chancellor ruled that since the motion sat dormant for almost three years, she had abandoned it. During the hearing, Tiebauer testified that it was important for Rachel to know that he is her natural father. He also testified that there were times when Rachel would refer to Powers' husband (Rachel's stepfather) as "daddy." Powers testified that Rachel did not know Tiebauer's last name and changing it would further confuse her. Relying upon Miss.Code Ann. § 93-9-9(1) (Rev.2004), the chancellor ruled, "I see nothing [before] the court that would lead [me] to believe that it is in the best interest of this minor child that she have any name other than the name of her natural father." It is from this judgment that Powers timely appeals. She raises two issues on appeal, arguing that (1) the chancellor abused his discretion in ordering that Rachel's surname be changed to that of her non-custodial father because he failed to apply the "best interests of the child" standard, and (2) the paternal surname presumption of Miss.Code Ann. § 93-9-9(1) is an unconstitutional violation of the due process and equal protection clauses of the Fourteenth Amendment of the United States Constitution. We affirm for the reasons stated below.

DISCUSSION

I. Standard of Review

¶ 6. While this Court will always review a chancellor's findings of fact, the *752 Court will not disturb the factual findings of a chancellor when supported by substantial evidence unless the Court can say with reasonable certainty that the chancellor abused his discretion, was manifestly wrong, clearly erroneous or applied an erroneous legal standard. Gannett River States Publ'g Corp. v. City of Jackson, 866 So.2d 462, 465 (Miss.2004); Morgan v. West, 812 So.2d 987, 990 (Miss.2002) (citing Cummings v. Benderman, 681 So.2d 97, 100 (Miss.1996); Ivison v. Ivison, 762 So.2d 329, 333 (Miss.2000); Miss. State Tax Comm'n v. Med. Devices, Inc., 624 So.2d 987, 990 (Miss.1993)). When reviewing questions of law, this Court employs a de novo standard of review and will only reverse for an erroneous interpretation or application of law. Morgan v. West, 812 So.2d at 990; Bank of Miss. v. Hollingsworth, 609 So.2d 422, 424 (Miss.1992); Harrison County v. City of Gulfport, 557 So.2d 780, 784 (Miss.1990).

II. Chancellor's Order to Change Rachel's Surname.

¶ 7. The order entered by the chancellor on November 14, 2000, was a final determination as to paternity and the change of Rachel's surname. The order was "temporary" only as it related to custody, support, and visitation, with these issues to be ultimately settled at a final hearing that did not occur until July 17, 2003. In fact, the ordered was entitled "Order of Paternity; and of Temporary Custody, Support, and Visitation." After the chancellor ordered that Rachel's surname be changed to Tiebauer in November of 2000, Powers then challenged the name change via a Motion to Alter or Amend. However, as the chancellor noted at the final hearing in 2003, she took no action to notice the motion, set a hearing date, or otherwise pursue an adjudication of the motion until she objected to the name change at the final hearing on custody, support, and visitation. The chancellor found that Powers's failure to pursue the motion should be deemed an abandonment of the claim. We find that the facts support the chancellor's finding that Powers abandoned her claim; therefore, his decision was not an abuse of discretion. Accordingly, we decline to address the merits of Powers's argument that the chancellor failed to consider the "best interests of the child" standard in ordering that Rachel's surname be changed to that of her biological father, Eric Tiebauer.

III. Constitutionality of Miss.Code Ann. § 93-9-9(1).

¶ 8. Powers also alleges that Miss. Code Ann.

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Bluebook (online)
939 So. 2d 749, 2005 WL 2036896, Counsel Stack Legal Research, https://law.counselstack.com/opinion/powers-v-tiebauer-miss-2005.