Quirk v. Edwards

504 N.W.2d 879, 1993 Iowa Sup. LEXIS 200, 1993 WL 327165

• Court: Supreme Court of Iowa
• Decided: August 25, 1993
• Docket: 92-761
• Status: Published

Opinions

NEUMAN, Justice.

This is an appeal from a decree changing the name of the parties’ minor child from the mother’s maiden name to the father’s surname. We conclude that because the change was ordered over the mother’s objection, the court contravened the express provision of Iowa Code section 674.6 (1991) which requires the consent of both parents. Accordingly, we reverse.

The case reaches us on a stipulated record. Appellant Lori Quirk and appellee Kirk Edwards were married in June 1990. They separated shortly thereafter. In February 1991 Lori petitioned to dissolve the marriage. Although she had been using the hyphenated surname “Quirk-Edwards,” she asked that the dissolution decree restore her maiden name, Quirk. Her daughter from a former relationship bears this name also.

Less than a month after filing for dissolution, Lori gave birth to the parties’ son. Kirk was not in attendance. Lori signed the birth certificate “Lori Ann Quirk,” and named the child Bryce Jerrun Quirk.

In the subsequent dissolution proceedings, Bryce’s name, as well as his custody, were placed in issue. Kirk asked the court (Judge John Nahra, presiding) to change Bryce’s last name from Quirk to Edwards. The court ruled that it had no authority to do so under Iowa Code chapter 598. Expressing concern, however, about Lori’s failure to use her “proper married name” on Bryce’s birth certificate, the judge directed Kirk to institute a change-of-name action. The court then placed Bryce in the parties’ joint custody, giving Lori responsibility for his primary care. Kirk did not appeal the judge’s refusal to entertain the name change as part of the custody proceeding, but he did file the petition for name change that is the subject of this appeal.

Kirk’s petition under the name-change statute, Iowa Code chapter 674, stated: “The reason for the requested name change is that the child does not carry Petitioner’s surname, and was improperly named by the child’s mother.” Lori, appearing pro se, filed a written resistance, voicing her unwillingness to consent to the change and asserting that Kirk could not establish statutory grounds therefor under section 674.6.

The hearing on Kirk’s petition took place informally in the chambers of Judge James Havercamp. After briefly questioning the parties, the judge asked Kirk’s counsel to produce the dissolution decree. Upon reviewing it he noted the concerns expressed by Judge Nahra and concluded that a fact determination had already been made on the name change issue and that Kirk “was just doing what he had been previously ordered to do by Judge Nahra.” He then signed a decree changing Bryce’s surname from Quirk to Edwards. This appeal by Lori followed.

I. An action on a petition to change the name of a minor child is equitable in nature, reviewable de novo on appeal. In re Staros, 280 N.W.2d 409, 410 (Iowa 1979); Iowa R.App.P. 4.

II. Judge Havercamp apparently believed that principles of res judicata prevented Lori from successfully contesting Kirk’s name-change petition. But issue preclusion requires more than identical parties and an issue previously raised; the issue must be “relevant to the disposition of the prior action ... and essential to the resulting judgment.” Hunter v. City of Des Moines, 300 N.W.2d 121, 123 (Iowa 1981). Judge Nahra did not purport to change Bryce’s name, and neither his directive to Kirk nor his commentary about Lori’s conduct were essential to the resulting judgment. As we have explained:

It is a well-established rule that it is only the decretal portion of a decree that is binding and becomes res adjudicata. The recital of facts in a decree is usual and is proper, but the rights of the parties are adjudicated, not by the recital of facts, but solely by the decretal portion of the decree. It is this and this only that becomes the final judgment of the court, from which an appeal will lie.

In re Cohen’s Estate, 216 Iowa 649, 653, 246 N.W. 780, 782 (1933).

A review of the dissolution decree reveals that Judge Nahra specifically disclaimed any authority to adjudicate the name-change issue.¹ Because the matter had not been resolved in the dissolution proceeding, Judge Havercamp erred in his finding that Lori was precluded from contesting it here.

III. Iowa Code section 674.6 limits the authority of the district court to change the ñamé of a minor child except upon the consent of both parents. If only one parent consents, the court is required to set the matter for hearing upon notice to the nonconsenting parent. Iowa Code § 674.6. Waiver of the consent requirement is authorized only upon one of the following findings concerning the noncustodial parent:

1. That the parent has abandoned the child;

2. That the parent has been ordered to contribute to the support of the child or to financially aid in the child’s birth and has failed to do so without good cause; or

3. That the parent does not object to the name change after having been given due and proper notice.

Id.

The legislature’s intent to circumscribe the court’s discretion in these matters is evident from the history of section 674.6. Prior to 1981, if an adult petitioner included a minor under age fourteen in a name-change petition, the court was permitted to order the name change irrespective of the failure of the other parent to consent. In its pre-amended state, the statute read:

If both parents do not file their consent, the court shall decide the appropriateness of the change of the minor child’s name.

Iowa Code § 674.6 (1979). In 1981, the legislature amended the section by eliminating this broad discretion and allowing the court to waive the consent requirement only when one of the three conditions described above has been shown. See 1981 Iowa Acts ch. 201, § 3 (codified at Iowa Code § 674.6 (1991)).

Here the district court made no findings in accordance with section 674.6 because it believed, erroneously, that principles of res judicata rendered the findings unnecessary. Our de novo review of the record makes plain, however, that Lori should have prevailed on the merits.

First, no abandonment can be established because Bryce has been in Lori’s custody at all times since his birth. Second, there has been no showing that Lori has failed to financially support the child as ordered. Kirk, not Lori, is subject to such an order. Finally, Lori has vigorously objected to the proposed name change, both in her written resistance to Kirk’s petition and in argument before the district court and on appeal.

In summary, had the court considered the factors precedent to the entry of a name change under section 674.6, it would have found itself without statutory authority to make the change Kirk requested.

IV. Notwithstanding our belief that Kirk is entitled to no relief under chapter 674, we cannot escape the fact that much — if not all — of his current predicament stems from misguided advice from judicial officers. In order to do equity, therefore, we direct that — if Kirk so chooses — he may seek a modification of the dissolution decree on the name change issue without necessity of first showing a substantial change in circumstances. By this ruling we do not in any way intimate our view of the merits of the controversy.

REVERSED WITH INSTRUCTIONS.

All Justices concur except CARTER, J., McGIVERIN, C.J., HARRIS, and LAVORATO, JJ., who concur specially and SNELL, J., who dissents.

1 . Subsequent to Judge Nahra’s decree, this court held that a minor child’s name change may properly be adjudicated in a proceeding under chapter 598 utilizing a “best interest of the child” analysis. In re Marriage of Gulsvig, 498 N.W.2d 725, 729 (Iowa 1993).