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, 1990Mr. 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 Hepplspetition for change of name. OnMay 26, 1988,KaronHepp (Karon)gavebirth toJamesJoseph 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 fromhis two grandfathers. Eventually the engagement fell through and because Karon felt that Ronald had not paid adequate attention to J.I.

### , she filed apetition to changeJ.I. sname to JosephScott 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 DistrictCourt found that changingJ.I.Isnamewas not inhisbest 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 aperson. 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 reMarriage 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 isvery narrow. A lower court's decision regarding the best interest of the childwill 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: "Wewill not substitute our judgment for that of the trier of fact, but rather will only consider whether substantialcredibleevidence supports the findingsand conclusions. These findingswill 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 prevailingparty,recognizingthatsubstantial evidencemay be weak or conflictingwith other evidence, yet still support the findings.'I

(citations omitted.) 674 P.2d at 1090. In lightof these policies,we must reviewthedecision 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 courtheld that Karontsreasons for changingJ.I.'s

name were not persuasive and were not in thebest interests of the child. Itbased thisconclusion 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 surnametoher own. She furtherargues thatRonald hasnot 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 Karontscontentions. 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 tovisit withhis 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, aswe stated earlier,Ronald argues thathehas attempted to remain in contact, but his efforts have been thwarted. The District Courtviewed the testimony ofbothparties and theparties themselves. Based upon itsperceptions of this testimony, itheld 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 alsowith his paternal grandfather's firstname. 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.

JusticeWe Concur: I

~hierfJustice

JusticesJustice Diane G. Barz, dissenting.

I dissent. The majority has determined that the District Courtdidnot abuse its discretionwhen itdeterminedthat thebest interest of the childwas to retainhis father's surname. Iagree that the proper test to be applied in this case is what is in the best interest of the child, however, Imaintain 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 Courthas onlyhad the opportunityto address this issue in two other instances. See,InreMarriage of Overton (1983), 207 Mont. 292, 674 P.2d 1089; In re Marriage of Firman (1980), 187 Mont. 465, 610P.2d 178. These type of cases, however, are likely to arise with more frequency as people, and women in particular, 6question this society's customsand traditionsregarding surnames. This Court should therefore set forth clear guidelines that a district courtcould usewhen confrontedwith 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 themother

or the father of the child. Other jurisdictionshave 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 thefather-childrelationships,andany misconduct by either parent that would make that parent's surname "possibly deleterious. See,Hammanv. CountyCourt, JeffersonCounty (Colo. 1988), 753 P.2d 743, 749. Other factorscited includethe child's age,thechild's embarrassmentor discomfortwhenbearing a surname other than the family the child ispresently livingwith, 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, Iwould 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 siblings1surnames. These factors address more directly a child's best interestwhen confrontedwith a name change than the father's magnanimous acknowledgement of paternity, his ability to follow acourtorder ofpaying $100 permonth tohelp supportthe child,and his plans to seek visitation rightswith the child. This.Courtls past decisions on these type of cases also clearly demonstrate that guidelines are needed for the district courts,otherwise,thetraditional preference forthefather's name will continue and a subtle form of discrimination against women will prevail. In particular, inOvertonthemother and fatherwere divorced when the mother was five months pregnant. Upon the child's birth, themother gave the child her surname. This Court noted that shehad 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. Thedecision also does not statethe factors that the district court relied upon when determining that thebest 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 regardingthename 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 inOverton stated that the equality of sexes was not an issue, the absence ofguidelines 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 aprevailing attitudewhen it held that the district court "should not permit an unnatural barrier to comebetween [thefather] 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), 481A.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 cannotbe 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. 481A.2d at 605. While the courts are not outwardly and perhaps not even knowingly contributing to this subtle form of discrimination againstwomen, the fact remains that the absenceof 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 andtraditions 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 

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