No. 89-519 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1990 

IN THE MATTER OF THE PETITION FOR CHANGE 

OF NAME OF: 

JAMES JOSEPH IVERSON, a Minor Child, 

KARON LYNN HEPP, 

Petitioner and Appel-lant, 

and 

RONALD EDWARD IVERSON, 

Respondent and Respondent. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable Joel Roth, Judqe presiding. 

COUNSEL OF RECORD: 

For Appellant: 

James D. Elshoff, Great Falls, Montana 

For Respondent: 

E. Lee LeVeque; Conklin, Nybo, LeVeque & Murphy, Great 

Falls, Montana 

Filed: 

Submitted on Briefs: Dec. 7, 1989 

Decided: January 24, 1990 
Mr. Justice R. C. McDonough delivered the Opinion of the Court. 

Karon Lynn Hepp filed a petition for name change of James 

Joseph Iverson, a minor child, on May 5, 1989. A hearing on the 

matter was held and on August 7, 1989, the District Court for the 

Eighth Judicial District, Cascade County, dismissed the petition. 

We affirm. 

The sole issue on appeal is: 

Whether the District Court abused its discretion when it 

denied Karon Heppls petition for change of name. 

On May 26, 1988, Karon Hepp (Karon) gave birth to James Joseph 

Iverson (J. I. ) . The natural father of J. I. is Ronald Iverson 

(Ronald). Although Karon and Ronald were not married at the time 

of J. I. birth, both acknowledge that Ronald is the biological 

father and this fact is recorded on J.1.l~ birth certificate. 

According to Karon, following the birth of J.I., Ronald 

promised to marry her. As a result of this promise, Karon gave 

J. I. Ronaldt s surname. J. I. s first and middle names were taken 

from his two grandfathers. Eventually the engagement fell through 

and because Karon felt that Ronald had not paid adequate attention 

to J. I. , she filed a petition to change J. I. s name to Joseph Scott 

HePP 

In compliance with Montana law, Ronald was served and 

interested parties were notified through publication with a local 

newspaper. A trial was held on August 7, 1989, and the District 
Court found that changing J. I. Is name was not in his best interest. 

~ccordingly, the petition was dismissed. This appeal followed. 

A change of name proceeding is statutory and is governed by 

§ 27-31-101, MCA, et seq. Unfortunately, these statutes do not 

set forth with any specificity the acceptable reasons for allowing 

the change of name of a person. However, in two recent decisions, 

we have held, that in contested cases when one parent seeks to 

change his or her child's name, the court shall determine whether 

the best interest of the child will be served. If the petitioner 

in such cases fails to make such a showing, it is proper for the 

district court to dismiss the petition. In re Marriage of Firman 

(1980), 187 Mont. 465, 610 P.2d 178; In re Marriage of Overton 

(1983), 207 Mont. 292, 674 P.2d 1089. 

Review of a district court's ruling in these matters is very 

narrow. A lower court's decision regarding the best interest of 

the child will not be overturned on appeal unless there is a clear 

abuse of discretion. Allen v. Allen (1978), 175 Mont. 527, 575 

P.2d 74. In Overton, we said: 

"We will not substitute our judgment for that 

of the trier of fact, but rather will only 

consider whether substantial credible evidence 

supports the findings and conclusions. These 

findings will not be overturned by this Court 

unless there is a clear preponderance of the 

evidence against them. We will view the 

evidence in a light most favorable to the 

prevailing party, recognizing that substantial 

evidence may be weak or conflicting with other 

evidence, yet still support the findings. 'I 

(citations omitted.) 674 P.2d at 1090. 

In light of these policies, we must review the decision of the 
~istrict Court in a light most favorable to Ronald. If there is 

not a clear showing of abuse of discretion, the judgment of the 

District Court must stand. 

The lower court held that Karonts reasons for changing J.I.'s 

name were not persuasive and were not in the best interests of the 

child. It based this conclusion upon substantial, albeit conflicting evidence. 

Karon maintains that she gave J.I. Ronald's surname because 

of his promise to marry her. She argues that this promise was 

breached, and that therefore she should be allowed to change the 

child's surname to her own. She further argues that Ronald has not 

kept in contact with J.I. According to her petition, Ronald has 

not visited with J.I. since October of 1988. Accordingly, he has 

not contributed to the daily care and upbringing of the child. 

The evidence presented by Ronald, however, tends to rebut 

Karonts contentions. Ronald acted pro se throughout the lower 

court proceeding. He did not therefore file any memoranda or 

petitions. However, he did testify upon his own behalf at the 

lower court hearing. His testimony revealed that he had in fact 

attempted to maintain contact with J.I. since his break up with 

Karon. He testified that he had attempted to call Karon on 

numerous occasions in order to visit with his child, that each time 

he called, she hung up on him. He also stated that he has spoken 

with E. Lee LeVeque, a local attorney, in an attempt to gain 

visitation rights. Further, it is uncontested that he has con- 
tinually paid child support. At this point he is paying $100.00 

a month to the Department of Revenue, who passes the money on to 

Karon. Before J.I. was born, Ronald paid $1,007.60 directly to 

Karon for pregnancy and other child rearing expenditures. 

The District Court took all of this evidence into consideration and determined that the proposed name change would not be in 

J.1.l~ best interest We note that most of this evidence is 

uncontradicted. Perhaps the only point of disagreement between 

Ronald and Karon is the extent of his visitation with J.I. Karon 

maintains that he has not maintained contact with the child; 

however, as we stated earlier, Ronald argues that he has attempted 

to remain in contact, but his efforts have been thwarted. The 

District Court viewed the testimony of both parties and the parties 

themselves. Based upon its perceptions of this testimony, it held 

that J.1.l~ name should not be changed. There is substantial 

evidence to support this conclusion and it is not arbitrary or 

capricious. 

Karon desired to change J. I. Is name in a manner which would 

not only dispense with the child's paternal surname, but also with 

his paternal grandfather's first name. The lower court found such 

a result is not warranted in light of the facts that Ronald has 

acknowledged paternity, is paying child support and is seeking a 

court order granting him visitation rights. The lower court did 

not clearly abuse its discretion and we must therefore affirm. 

Justice 
We Concur: I 

~hierf Justice 

Justices 
Justice Diane G. Barz, dissenting. 

I dissent. The majority has determined that the District 

Court did not abuse its discretion when it determined that the best 

interest of the child was to retain his father's surname. I agree 

that the proper test to be applied in this case is what is in the 

best interest of the child, however, I maintain that the District 

Court abused its discretion when applying this test. 

In this case, the District Court cited the father's 

acknowledgement of paternity, his payment of $100 per month in 

child support, and his purported plans to seek a court order 

granting him visitation rights with the child as the basis for 

dismissing the petition and determining that it was not in the 

child's best interest to change his name. These three factors, 

however, do not even touch upon the child's best interest. 

Instead, these factors merely reinforce traditional notions 

regarding the "proper1' surname for a child. When viewed from a 

different perspective, these three factors could also be used to 

justify changing the child's surname to that of the mother's, as 

the mother has acknowledged maternity, she more than likely pays 

over $100 per month in supporting the child, and she has assumed 

the day to day responsibility and care for the child. 

This Court has only had the opportunity to address this issue 

in two other instances. See, In re Marriage of Overton (1983), 207 

Mont. 292, 674 P. 2d 1089; In re Marriage of Firman (1980), 187 

Mont. 465, 610 P.2d 178. These type of cases, however, are likely 

to arise with more frequency as people, and women in particular, 

6 
question this society's customs and traditions regarding surnames. 

This Court should therefore set forth clear guidelines that a 

district court could use when confronted with a petition to change 

a child's surname. These guidelines should naturally be based on 

the child's best interest and not the best interest of the mother 

or the father of the child. 

Other jurisdictions have touched upon this subject and have 

set forth factors that a court should consider in determining a 

child's best interest when confronted with a petition to change 

the child's name. Included among these factors are the child's 

preference, if any, the length of time the child has had the 

surname, the impact of the requested name change on both the 

mother-child and the father-child relationships, and any misconduct 

by either parent that would make that parent's surname "possibly 

deleterious. See, Hamman v. County Court, Jefferson County (Colo. 

1988), 753 P.2d 743, 749. Other factors cited include the child's 

age, the child's embarrassment or discomfort when bearing a surname 

other than the family the child is presently living with, and the 

effect a surname may have on easing relations with a new family. 

In re Marriage of Schiffman (Cal. 1980), 620 P.2d 579, 583. In 

addition, I would also include consideration of whether the child 

has any siblings, the child's relationship to those siblings, and 

the impact on the child of having surnames different from the 

siblings1 surnames. These factors address more directly a child's 

best interest when confronted with a name change than the father's 

magnanimous acknowledgement of paternity, his ability to follow a 
court order of paying $100 per month to help support the child, and 

his plans to seek visitation rights with the child. 

This.Courtls past decisions on these type of cases also 

clearly demonstrate that guidelines are needed for the district 

courts, otherwise, the traditional preference forthe father's name 

will continue and a subtle form of discrimination against women 

will prevail. In particular, in Overton the mother and father were 

divorced when the mother was five months pregnant. Upon the 

child's birth, the mother gave the child her surname. This Court 

noted that she had two other children with her surname and desired 

to have all her children bear the same name so as to prevent 

confusion and embarrassment. Two years after the child's birth, 

the father petitioned to have the child's surname changed to his 

and to clarify his visitation rights. The facts state that the 

father sought the child's birth certificate from the county clerk 

and recorder's office so as to enroll her in the Indian tribal 

rolls, but the facts do not indicate that changing the child's 

surname was necessary for enrollment. Overton, 207 Mont. at 293- 

94, 674 P.2d at 1090. The decision also does not state the factors 

that the district court relied upon when determining that the best 

interest of the child was to have her surname changed to that of 

the father's. Instead, this Court merely held that the findings 

and conclusions regarding the name change was not clearly erroneous 

and that sufficient evidence supported the findings. Overton, 207 

Mont. at 296, 674 P.2d at 1091. While this Court in Overton stated 

that the equality of sexes was not an issue, the absence of 
guidelines for the district courts in these type of situations 

allows for a subtle form of discrimination to occur by granting a 

preference for the father's name. 

In Firman, this Court expressed a prevailing attitude when it 

held that the district court "should not permit an unnatural 

barrier to come between [the father] and [his] children." Firman, 

187 Mont. at 470, 610 P.2d at 181 (emphasis added). The use of 

the words "unnatural barrier" are in themselves language that 

suggests a preference for the father's name. A New Jersey court 

in In re Rossell (N.J.Super. 1984), 481 A.2d 602, artfully stated 

that 

[tlhe emergence of women as equals of men in 

our society may be our most significant 

revolution. The acceptance of that emergence 

is grudgingly slow; it is an acceptance which 

the courts must not impede. Names, as this 

case clearly illustrates, are intimately 

involved with the status of women. Rules of 

law for changing names cannot be premised upon 

unacceptable theories of inequality. The 

right of a mother to have the child bear her 

name must be recognized as equal to that of 

the father. 

481 A.2d at 605. While the courts are not outwardly and perhaps 

not even knowingly contributing to this subtle form of 

discrimination against women, the fact remains that the absence of 

guidelines in these type of cases only act to impede women's 

status in society. In Romeo and Juliet, Shakespeare wrote, 

What's in a name? That which we call a rose 

By any other name would smell as sweet. 

(11, ii, 43.) 

However, Romeo's and Juliet's fateful outcome attest to the 

problems that arise as a result of a system based on customs and 
traditions attached to surnames. I would therefore reverse and 

remand this case to the District Court to assess whether the 

child's name should be changed in light of the factors suggested 

in this dissent. 

ustice \