# FILED
January 16, 1998 Cecil W. Crowson Appellate Cou rt Clerk 

## IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

) IN RE: ) Davidson Probate ) No. 97P-83 AMELIA JEAN DOWLING ) a/k/a ) AMELIA JEAN BERLE, ) Appeal No. a minor ) 01A01-9706-PB-00268 )



### APPEAL FROM THE DAVIDSON COUNTY PROBATE COURT

NASHVILLE, TENNESSEE THE HONORABLE FRANK G. CLEMENT, JR., JUDGE

For Plaintiffs/A

ppellants : Guardian Ad Litem : Bridgett A. Wohlpart Marlene Eskind Moses Nashville, Tennessee Eisenstein, Moses & Mossman Nashville, Tennessee



## REVERSED AND REMANDED

WILLIAM C. KOCH, JR., JUDGE-2- 

## O P I N I O N
This appeal involves the efforts of parents to change the surnam e of their infant child. The parents used the fa ther’s surname on th

e child’s birth cer

tificate because the hospital in which the c hild was born refuse

d to place the

surname chosen by

the parents on the chil d’s birth certificate. The parent s then filed a petitio

n in the Davidson County Probate Court seeking to change the child’s surname. Follow ing
abench trial, the pr

obate judge denied the

petition after dete

rmining that the pare

nts had failed todemonstrate that changing the chil

d’s surname was in her best interests. This court appointed a gua rdian ad litem to re

present the

child’s interests on

appeal independently

of her parents. The parents have demonstrated that chan ging their daughter’s surname to the one the y have chosen for her

is in the child’s best

interests. Accordin g ly, we reverse the pr obate court’s dismis sal of the petition to c hange the child’s surname.
I. Cynthia Joan Cyrus and Thomas Benjamin Dowling are mar

ried and reside in Davidson County. Ms. Cyrus has elected to retain her maiden name for professional
reasons. In 1996, after lea rning that Ms. Cyrus

was pregnant with their first child, the couple decided against giving the child either of their surnames or a hyphenated form of the ir surname s. Instead, they decided to give their child the surname of “Berle” which was the surname of Mr. Dowling’s maternalgrandfather. They also decided that they would give any other children they had in the future the same surname.
Their daughter was born at St. Thoma s H ospital in Nashville o n August 30, 1996. Mr. Dowling

and Ms. Cyrus requested thatthe name “Amelia Jean Berle” be placed on their daughter’s birth cer tifi cate, but the hospita l personnel declined to process t he document s unless Mr. Dowli ng and Ms. Cyrus used e ither of their
surnames o r a hyphe nated combination of their surnames. Ms. Cyrus and Mr. Dowling decided toput

the name “Amelia

Jean Dowling” on the

ir daughter’s birth certificate

and to petition

to have their daughte

r’s surname change

d to the one

they had originally ch osen.1 The child’s b irth announcement notes that she “gets her last name from Tom’s maternal

grandfather, a Norwegian, and is proudly Scandinavian on her mom’s side as well.”

2 See Tenn. Code Ann. §§ 68-3-101, -510 (1996 & Supp. 1997). -3- Notwithstanding

the name on her birth certificate, the child has been known as Amelia Jean Berle. Her birth announcements refer to her as Amelia Jean Berle, 1 her parents and family have consistently referred to her as Amelia Jean Berle, and she has received gifts in the

name of Amelia Je

an Berle. The c

hild is also identified by this name on her medica

l and insurance rec

ords.
On January 16, 19 97, Ms. Cyrus and Mr . Dowling filed a

petition in the Davidson Cou n ty Probate Court se eking to change their

daughter’s surname

from Dowling to Berle. The pro bate court conducted

a hearing on

January 21, 1997 and declined to grant the petition. Following a second hea rin g on March 18, 1997, t he trial court again decline

d to change the

child’s surname, reasoning that “the proposed
name change is not in thebest interest of the child and does not compl y with the requirements of Tenn. Co de Ann. Section 68-3-3 05.”
Ms. Cyrus an d Mr . Dowling appeale d the probate court’ s denial of their petition to this court. We a

ppointed an attorney w

ith special expertise in domestic relations matters to serve as the child’s guardian ad litem and to represent the child before this court. The gua rdian ad litem has f

iled a carefully r

esearch ed brief concluding that the child’s interes ts would be

served best by changing her surname from Dowling to Berle.
II.
We turn first to the probate court’s conclusion tha

t the parents’ requ

est to changetheir

child’s surname fr

om Dowling to Berle

is inconsistent with T

enn. Code Ann. § 68-3-305 (Supp. 1997). In the trial court’s view, this statute re flects a considered policy decision by the General Assembly that parents should be required to give their childre

n a surname based on t

heir own surnames. We have concluded that the probate cour

t read too much into T

enn. Code Ann. § 68- 3-305.
Tenn. Code Ann. § 68-3-3 05 is part of the Vita l Records Act of 19

77. 2 The purposeof this Act is to coll ect and main tain records “such a s will aid the public-4-

health of the state, and furnish and prese rve evidence aff

ecting personal and pr

operty rights of the individual citizen.” See Tenn. Code Ann.§ 68-3-201 (1996). B ecause the Act itself

provides a procedur

e for filing an amended bir

th certificate c

ontaining
anew name, see Tenn. Code Ann.§ 68-3-203(c) (1996) , recording an ame nded birth certificate

is entirely consistent with the purposes of the V ital Records Act. As a matter of statutory construction, filing an amended birth cer tificate chan ging an infant child’s surname is not inconsistent with the public health or with the pers on al and property rights of ind

ividual citizens.

In order to assure the

collection of neede

d information

about live births, Tenn. Code Ann. § 68-3-301(a)

(1996) requires the prepa ration and filing of a cert

ificate of birthwithin

ten days of a child’s

birth. Tenn. Code Ann. § 68-3-302 (a) (Supp. 1997) requires the institution

where the child is born to obtain the required personal data, to prepare the certificate, to secure the required signatu

res, and to file the certificate. Tenn. Code Ann. § 68-3-305 (a) (Supp. 1997) pr escribes t he surname that must be placed on the birth ce

rtificate of a ch

ild born to married pa

rents. It states:
If the mother was marri ed at th e time of either conception

or birth, o r any time between conc eption and birth, to the natural fath er of the child, the na

me of the father shall be entered on t

he certificate

and the surname of the child shall be entered on the certif icate as that of the natural father, except that where the mot her though married has retained the

mother’s maiden surname, then on sworn application

of b o th parents, the chil d’s surname to be entered on the birth certificate may be the maiden surname of the child’s mother,

or both surnames as th e parents mutually agree.
When courts are called

upon to construe a statute, they must endeavor to give effect to the statute’s purpose without unduly r estricting or expand

ing its coverage beyondits intended scop e. See Hicks v. Stat e , 945 S.W.2d 706, 707 (Tenn. 1997); Riggs v. Burson , 941 S.W.2d 44, 54 (Tenn. 19 97). They must also constr ue statutory terms using their ordinary meaning, see Pursell v. First Am. Nat’l Bank

, 937 S.W.2d 838, 840 (Tenn. 1996); Carson Creek Vacatio n Resorts, I nc. v. Department of Revenue , 865 S.W.2d 1, 2 (Tenn. 1993), and must presume that a statute’s plain

and ambiguous language means wh at i t says. See Perry v. Sen try Ins. Co. , 938 S.W.2d 404, 406 (Tenn. 1996); Worrall v. Kroger C o. , 545 S.W.2d 736,

738 (Tenn. 1977). The courts must also interpret statutes in a way that sustains rather than defeats their3 See Sydney v. Pingree , 564 F. Supp. 412, 413 ( S.D. Fla. 1982); Jech v. Burch , 466 F. Supp. 714, 721 (D. Hawaii 1979); O’Brien v. Tilson , 523 F. Supp. 494, 495 (E.D.N.C. 1981 ); D’Ambrosio v. Rizzo , 425 N.E.2d 369, 370 (Mass. App. Ct. 1 981); M.D. v. A.S.L. , 646 A.2d 543, 544 ( N.J. Super. Ct. Ch. Div. 1994); but see Henne v. Wright , 904 F.2d 1208, 1215 (8th Cir. 1990); Brill v. Hedges , 783 F. Supp. 340, 346 (S.D. O hio 19 91); Robertson v. Pfister , 523 So.2d 678, 679 ( Fla. Dist. Ct. App. 1988). -5- constitutionality. See Ellenburg v. St ate , 215 Tenn. 153, 157-58, 384 S.W.2d 29, 31 (1964); Illinois Cent. & St. L. R.R. v. Crider , 91 Tenn. 489, 506,

19 S.W . 618, 622 (1892).
The parents in this case have explic itly decl ined to challenge the constitutionality

of Tenn. Code Ann. § 68-3-305(a) ev en t hough similar statutory restrictionson the parents’ choic e of their child’s surn ame have been found t o interfere withthe parents’ fundam ental liberty

interests protecte

d by the Due Process Clauseof the Fourteenth A mendment. 3 Thus, this case does not require us to consider the constitutionalit y o f Tenn. Code Ann. § 68-3-3 05(a). However, we sho uld still endeavor to construe the statute in a way that insulates it fro m constitutional attack and thatadvances the purpose s of the Vital Rec ords Act of 1977. We can accomplish both goals by giving effe ct to the statute’s pl

ain meaning.
The statute relates onl

y to the name to be plac

ed on an infant’s birth certificate. Itdoes not, eitherexplicitly or implic itly, extend

to the parents’ ultimate choice of a
surname for their

child. Compliance

with the requirem

ents of Tenn. Code An

n. § 68- 3-305(a) satisfies the need for maintaining accu r ate vital records b ut does not foreclose the parents from th

en formally c

ha nging their child’s sur name to one of their choosing. A later change of the child’s surname, done in accordance with the applicable

law, is not inconsist

ent with the purposes of t

he Vital Records A

ct. The amended birth certificate creates a documentary record that will avoid any future confusion concerning the child’s parentage b ec ause, in the case o f a child born to married parents,

it contains the names

of both parents. Accordingly, we reject the pr obate court’s inter

pretation of Tenn.Code Ann. § 68-3-305(a) becau se it places the statute on a collision course w

ith the Due Proces s Clauseof the Fourteenth A mendment and with T

enn. Const. art. I,

§ 8. In addition, the probate court’s conclusion that Tenn. Code Ann. § 68-3-305(a) restr icts the parents’ ultimate choice of their child’s surname i s not supported by the statute’s plain language or l egislative histo ry.-6- III.
We turn next to the probate court’s conclusion that it is not in the child’s best interest to permit her parents to change her surname to that of her father’s maternal grandfather. The probate court did not explain the basis

for its conclusion other than to state that it was “

very conservative

of changing the

name of any child.”

With no proof in the re co rd that changing the c hild’s surname is not i

n the child’s best interests, we are at a loss t o understand the basis f

or the probate court’s

conclusion. We find that the evidence, which is entirely f avorable to the pare

nts’ request, does not support the probate c

ourt’s conclusion.

In cases involving a disput e between the biolo

gica l parents concernin

g the child’s surname, we have held that the parent

desiring to change the

name bears the burden of proof. See Barabas v. Rogers , 868 S.W.2d 283, 287 (Tenn. Ct. App. 1993); Halloran v. Kostka , 778 S.W.2d 454, 456 (Tenn. Ct. A

pp. 1988); In re Brown , App. No. 01A01-9704-JV-00148, 1997 WL 638278, at *1 (Tenn. Ct. App . Oct. 17, 1997) (No Tenn. R
. App. P. 11 applica tion filed). The parents assert tha t this burden of proof is inapplicable wh en nat ural parents agre e on a child’s surnam

e and that the courts should intervene only when the surname chosen by the pa rents poses a substantial harm or threat of substantial harmto the child. We find that the burden of going forward with the

evidence and the bur

den of persuasion shoul

d remain the
same notwithstanding the marital status of the parents. However, when the natural parents have agreed on a sur name, we find tha

t the best interests a

nalysis must be undertaken in light of the parents’ fundamental interests in giving their ch ild a surname of their ow

n choosing.

Ms. Cyrus and Mr. Dowling demonstrated that their choice of their daughter’s
surname is in her best

interests. Their

decision was neithe

r hasty nor ill-considered. They wished to avoid choosin g one of their surna

mes over the other and to avoid using a cumbersome hyphen ated name. Acc

ordingly, they settled on the surname of “Berle” five months before t heir daughter was b

orn. The surname

itself will not
cause the child to be held u p t o public disrepute or r idicule, and it act

ually has a demonstrable conn ection with Mr. Dowling ’s family.-7- Mr. Dowl ing and Ms. Cyrus ar e in complete agree

ment concerning this surname, not only for

their daughter but also for any other children they may have. They have also decided to c ontinue to call their

daughter Amelia Jean Ber le even if their petition to chang e the child’s name is d enied. Thus, t he chil d will effectivel y have two names if the petition is deni ed, thereby creating a much more cumbersome and confusing situation not o nly for the child but f

or others d ealin g with the child. The child has been known by the surname of “Be

rle” ever since he

r birth. In fact,

the only two instances where she has not been referred to as Amelia Jean Berle are on her birth certificate and in the caption of her parents’ petition to change her name.
There was some speculation during oral argument that the probate court may have taken judicial notice of the poten tia l harm that might be caused if the child’s
surname is not t

he same as her mother’s or father’s. Concerns were expressed regardinginterference with the child’s connection with her f amily her itage, the possibilitythat others might assume that she was born out -of-wedlock, an d the possib ility tha t she would be subjected to ridicule because she did not share her parents’ name. Concerns w ere also expressed

about confu sion over the child’s identity and uncertainty regarding her legal ri ghts, status, or obligations. The record contains no evidence that any of these possibilities may or are likely to occur.
While Tenn. R. Evid.201 permits the court s to take judicial notic

e of facts, it does not equip the courts wi th crystal balls or a uthorize the courts t

o superimpose their personal preferences over those of the litigants. In order to be judicially

noticed,
afact must be generally known w

ithin the territoria

l jurisdiction of the c

ourt or must be capable of accur

ate and ready determination by resort to sources whose accuracy cannot reasonably be ques tioned. See Tenn. R. Evid.201(b). The possible effects on this child of having the sur name “Berle” ra

ther than “Dowling

” until she reaches the age of majority ca

nnot be known, let al

one judicially notice

d.
The recordcontains no evidence that granting the par ents’ petition to

change th eir daughter’s name would not be in the child’s best interests. In contrast, Mr. Dowling and Ms. Cyrus have presented evidence thattheir daughter’s int erests will be served bypermitting her lega l identityto match her actua l identity. Accor

dingly, we find that Ms. Cyrus and Mr. Dowling have carried their burden of proving that it is in their daughter’s best interests to change her name to Amelia Jean Berle.-8- IV.
We reverse

the judgment and rem

and the case to the

probate court for the entry of an order granting the petition to change the child’s name. We also tax the costs of this appeal jointly and sev erally to Cynthi a J. C yrus and Thomas B. Dowling and their surety for which execution, if necessary, may issue.

______________________________ WILLIAM C. KOCH, JR., JUDGE
CONCURS:

__________________________________ BEN H. CANTRELL, JUDGE

DISSENTS IN SEPARATE OPINION: HENRY F. TODD, PRESIDING JUDGE MIDDLE SECTION