J.M.V. v. J.K.H.
Annotate this Case
Download PDF
REL: 03/21/2014
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334)
229-0649), of any typographical or other errors, in order that corrections may be made
before the opinion is printed in Southern Reporter.
ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2013 -2014
_________________________
2120798
_________________________
J.M.V.
v.
J.K.H.
Appeal from Montgomery Circuit Court
(DR-12-590)
MOORE, Judge.
J.M.V. ("the mother") appeals from a judgment of the
Montgomery Circuit Court ("the trial court") insofar as it
ordered that the surname of the parties' child be changed. We
reverse.
2120798
Procedural Background
On August 1, 2012, J.K.H. ("the father") filed a petition
in the trial court seeking to establish the paternity of E.V.
("the child"), to correct the child's birth certificate to
list him as the child's father and to change the child's
surname, to establish custody of and visitation with the
child, and to establish child support.
the petition on November 13, 2012.
The mother answered
After a trial, the trial
court entered a judgment on May 31, 2013, that, among other
things, declared the father to be the legal father of the
child;
changed
the
child's
surname;
awarded
the
mother
physical custody of the child; and awarded the father six
weeks' visitation with the child in the summer, as well as
visitation during a part of each Christmas holiday, during
spring break and on Thanksgiving in odd years, and during fall
break in even years. Both parties filed postjudgment motions,
and the mother subsequently filed a notice of appeal on June
13, 2013.1
On August 7, 2013, the trial court denied both
postjudgment motions and stayed enforcement of that part of
1
The mother's appeal was held in abeyance until the
disposition of the postjudgment motions, at which time it
became effective. See Rule 4(a)(5), Ala. R. App. P.
2
2120798
its
judgment
changing
the
surname
of
the
child
pending
resolution of the mother's appeal attacking only that aspect
of the trial court's judgment.
Facts
The mother is an officer in the United States Air Force,
and the father is an enlisted member of the Air Force.
The
parties were never married; they met through their employment
and
began
a
sexual
relationship,
which
resulted
mother's becoming pregnant with the child.
in
the
The evidence
indicated that the parties' relationship deteriorated after
the mother became pregnant.
The parties testified that the
father had wanted to be present for the birth of the child but
that the mother had opposed his presence out of concern that
their careers could be adversely affected if other members of
the Air Force learned that she, an officer, had engaged in a
sexual relationship with the father, an enlisted man.
The
parties stopped speaking to each other about a month before
the child was born, and the father was not notified when the
mother went to the hospital to give birth to the child.
child was born on September 30, 2009, in Alabama.
3
The
The mother
2120798
did not list the father on the child's birth certificate, and
she gave the child her surname.
It is undisputed that the mother had been the primary
caregiver for the child and that the father had visited with
and supported the child during the first two and a half years
of his life.
The father testified that he had exercised
visitation with the child in the presence of the mother except
for one two-week period in May 2012 when the child had stayed
with him while the mother was unavailable to care for him due
to her work obligations. The mother testified that the father
had visited the child in her home between 10 and 12 times and
that they had met for visitation on 3 other occasions.
The
father testified that he had paid $750 per month in child
support from the time the child was born until May 2012.
The parties became embroiled in a dispute during the May
2012 visitation because the father had not allowed the mother
to have telephone contact with the child for two days; the
mother threatened to have law-enforcement officials pick up
the child if the father did not allow her to contact the
child. The father testified that the mother had spoken to the
child every day during the visitation up until that point.
4
2120798
The mother testified that the father had told her that he does
not talk to the child every day, so why should she.
The
father testified that he had stopped paying child support at
that time because the mother informed him that he had no legal
rights to the child.
The mother maintained that it was the
father who had stated that he did not have any legal rights to
the child before he stopped making child-support payments.
After May 2012, the father did not see the child except
through "Skype," which is a means of communicating via a
computer using a Web camera, and even that contact ceased
after January 2013.
The father testified that the mother had
not responded to his attempts to contact her.
The evidence
indicated
deployed
that
the
mother
would
soon
be
to
Washington, D.C., while the father would remain stationed in
Florida, 500 miles away.
The father testified that he had talked to the mother
about his desire to change the child's surname and that she
had said it would complicate her situation being an officer.
He testified that he does not think the change would be
upsetting to the child.
The mother testified that she is
opposed to changing the child's name.
5
She testified that, at
2120798
the time of the trial, the child was three years and seven
months old and that he knows his full name.
She testified
that she thinks it would be very confusing for the child to
change
his
name.
She
also
passport, medical records, and
the child listed as "E.V."
testified
that
the
child's
educational records all have
She testified that she believes
the name change might be harmful to the child due to the
possibility of its creating confusion about his identity. She
also testified that she is the child's primary caregiver and
that she and the child have the same surname.
The mother
testified that she does not recall the father's stating at the
time of the child's birth that he wanted the child to have his
surname; she testified that, even if the father had been
present at the child's birth, she would not have allowed the
father to be identified on the birth certificate or allowed
the child to have his surname.
The
mother
testified
that
the
father
had
recently
contacted her leadership in the Air Force and informed them of
their relationship.
known
only
to
the
She testified that their relationship is
leadership
and
is
not
widely
known
throughout the Air Force and that it is better for her career
6
2120798
that it not become widely known due to her having to supervise
enlisted members.
The Trial Court's Judgment
The trial court stated its rationale with regard to
changing the child's surname:
"[W]ouldn't it be good cause if the Court considered
the fact that during the birth of the child, the
father testified that he was not present at the
birth due to the fact that the mother thought his
presence would jeopardize her career, and he was not
allowed to be present, therefore, not allowed to
sign the appropriate paperwork to have his name
placed on the birth certificate, and possibly the
child's name named in his last name?
"....
"... [T]he testimony [was] that the father was
not allowed to be there during the child's birth, or
he attempted to be there and was not allowed to be
there. The child [i]s not yet four years old. He's
relatively young. The Court does not see this as a
detrimental effect on him in any way by changing his
name at such a young age. It's certainly something
that he can become accustomed to, given his
relatively infant age at the time that the name
change has been ordered to take place.
"....
"So the Court finds that it does not do any harm
or detriment to the child in that it's not against
the child's best interest to order that the child's
name be changed to that of his father whom he will,
pursuant to the Court's Order, hopefully, develop a
close and nurturing relationship with, and would be
identified with as the father rather than not."
7
2120798
Discussion
On appeal, the mother argues that the trial court erred
in changing the child's surname.
Section 26-17-636(e), Ala.
Code 1975, a part of the Alabama Uniform Parentage Act ("the
AUPA"), § 26-17-101 et seq., Ala. Code 1975, provides that,
upon adjudicating paternity, "[o]n request of a party and for
good cause shown, the court may order that the name of the
child be changed."
The mother argues that the father did not
present good cause to warrant changing the name of the child.
In its judgment, the trial court stated that it decided
to change the surname of the child, in part, because the
mother had denied the father an opportunity to be present at
the birth of the child so that he could have been listed on
the child's birth certificate and possibly could have named
the child.
We note, however, that, even if the father had
been present at the birth of the child, the father did not
have any right to be listed on the birth certificate. Section
22-9A-7(f), Ala. Code 1975, provides, in pertinent part:
"(2) If the mother was not married at the time
of either conception or birth or between conception
and birth, the name of the father shall not be
entered on the certificate unless paternity has been
determined by a court of competent jurisdiction or
unless the legitimation process specified in
8
2120798
Sections 26-11-1 through 26-11-3, [Ala. Code 1975,]
inclusive, or otherwise provided by law has been
completed.
"(3) If the father is not named on the
certificate of birth, no other information about the
father shall be entered on the certificate."
Because the mother was not married to the father at or before
the time she gave birth to the child, the Alabama Office of
Vital Statistics would not have been permitted to set forth
any
information
about
the
father
on
the
child's
birth
certificate based merely on his attendance at the child's
birth.
Furthermore, the trial court was mistaken as to the
possibility that the father could have named the child at the
time of birth.
England.
Alabama generally follows the common law of
See Ala. Code 1975, § 1-3-1.
Under the common law,
a child born of an unmarried woman customarily would bear her
surname, see Buckley v. State, 19 Ala. App. 508, 98 So. 362
(1923), and a putative father had no right to name a child
born out of wedlock, see Barabas v. Rogers, 868 S.W.2d 283,
285-87 (Tenn. Ct. App. 1993).
No Alabama statute alters the
common-law rule by granting a putative father the right to
9
2120798
name a child.2
Hence, in this case, the mother did not
deprive the father of any "right" to name the child by
objecting to his being present at the birth of the child.
Given the mother's testimony that she would not have allowed
the child to be given the surname of the father, the father
could not have named the child, as the trial court apparently
believed.
In 1833, our legislature gave a putative father the right
to rename a child by legitimating the child in accordance with
statutory procedure.
See
John G. Aiken, Digest of the Laws
of the State of Alabama, 77-78 (Bastardy § 9) (2d ed. 1836)
("[I]f,
at
the
time
of
filing
any
[declaration
of
legitimation], the person filing the same shall desire to
change the name of any child ... he shall set forth the fact,
together with the name to which he desires the change to be
made; whereupon the name shall be changed accordingly, and the
2
Rule 420-7-1-.04(1), Ala. Admin. Code (Bd. of Health/
Dep't of Pub. Health), provides: "The parent(s) may give a
child any name they wish for registration of birth.
The
surname of the child does not have to be the surname of either
parent." By use of the parenthesis, the drafters of the rule
recognized that a child may have only one legal parent at the
time of birth. That rule is therefore consistent with the
English common-law custom allowing an unmarried mother to give
a child born out of wedlock her surname.
10
2120798
latter name shall be the lawful name of any such child or
children.").
In 1984, the legislature adopted the 1973
version of the Uniform Parentage Act, which provided, in
pertinent part:
"(c) If the order of the court [adjudicating
paternity] is at variance with the child's birth
certificate, the court shall order that a new birth
certificate be issued pursuant to the provisions of
Section 26-17-19[, Ala. Code 1975]."
Ala. Code 1975, former § 26-17-14.
That statute authorized
Alabama courts to change the surname of a child born out of
wedlock to reflect the surname of the declared or adjudicated
father.
However, in 1981 the legislature had amended the
legitimation statute to reflect that a declared father did not
have the right to name the child, but only had the right to
petition the probate court to prove that a name change would
be in the best interests of the child.
See Ala. Acts 1981,
Act No. 81-800, p. 1407, § 2, codified at Ala. Code 1975, §
26-11-3. In 2008, the legislature adopted the current version
of the Uniform Parentage Act, i.e., the AUPA, which, as stated
above, now permits a court adjudicating paternity to change
the name of a child only upon petition of a party and "for
good cause shown."
Ala. Code 1975, § 26-17-636(e).
11
2120798
Alabama courts have generally defined "good cause" as "'a
reasonable cause, one that is material and substantial as
applied to a particular set of facts.'"
Heatherly v. Carter,
485 So. 2d 769, 771 (Ala. Civ. App. 1986) (quoting Department
of Indus. Relations v. Mann, 35 Ala. App. 505, 509, 50 So. 2d
780, 783 (1950)). Our courts have not defined "good cause" as
it specifically relates to § 26-17-636(e), but our legislature
has recognized in § 26-11-3, i.e., the legitimation statute,
that the name of a child may be changed only if it in the best
interests of the child.
See also Roe v. Conn, 417 F. Supp.
769, 782-83 (M.D. Ala. 1976) (declaring the former Alabama
legitimation statute unconstitutional for failing to provide
for a determination of whether a name change would serve best
interests of the child). Construing § 26-11-3 and § 26-16-636
in pari materia, see Ex parte Johnson, 474 So. 2d 715, 717
(Ala. 1985) ("It is a fundamental principle of statutory
construction
that
statutes
covering
the
same
or
similar
subject matter should be construed in pari materia."), under
Alabama law a court adjudicating paternity may change the name
of the child only if it is in the best interests of the child.
12
2120798
Furthermore, § 26-17-901, Ala. Code 1975, a part of the
AUPA, provides: "In applying and construing this uniform act,
consideration must be given to the need to promote uniformity
of the law with respect to its subject matter among states
that enact it."
Only nine states have adopted the 2000
version of the Uniform Parentage Act upon which the AUPA is
based.
See 9B Uniform Laws Annotated, Uniform Parentage Act
(2000), Table of Jurisdictions Wherein Act Has Been Adopted
(2013 Cumulative Annual Pocket Part).
Of those states, Texas
is the only state that has construed the "good cause" language
found in § 26-17-636(e).
Based on its survey of other Texas
law on the same subject, a Texas appeals court determined that
a court may change the name of a child if it is in the best
interests of the child.
In re M.C.F., 121 S.W.3d 891 (Tex.
App. 2003); see also In re S.M.V., 287 S.W.3d 435 (Tex. App.
2009).
That
holding
coincides
with
the
general
rule
prevailing in this country that, in disputes between unmarried
parents as to the surname of the child, the court should
resolve the dispute based on the best interests of the child.
See In re Marriage of Schiffman, 28 Cal. 3d 640, 620 P.2d 579
(1980); Jay M. Zitter, Rights and Remedies of Parents Inter Se
13
2120798
With Respect to the Names of Their Children, 40 A.L.R.5th 697
(1996).
Our holding places Alabama law in line with the law
in those other jurisdictions and promotes the uniformity of
interpretation of the AUPA our legislature has encouraged.
The
mother
argues
that
the
father
did
sufficient evidence to support the name change.
not
present
Because the
trial court heard oral testimony in this matter, the ore tenus
standard of review is applicable.
"Under the ore tenus
standard of review, we must accept as true the facts found by
the trial court if there is substantial evidence to support
the trial court's findings."
Beasley v. Mellon Fin. Servs.
Corp., 569 So. 2d 389, 393 (Ala. 1990).
Our review
of
the
record indicates
that the
father
offered no reason as to why he wanted the child's surname
changed.
He merely testified that he did not think that the
name change would upset the child.
The trial court agreed
with the father that, due to his young age, the child likely
would not suffer any particular detriment from the name
change.
However,
as
we
read
§
26-17-636(e),
a
parent
petitioning to change the name of the child must present
evidence showing that the change would benefit the child in
14
2120798
some positive manner.
See Barabas, 868 S.W.2d at 287 ("The
courts should not change a child's surname unless the change
promotes the child's best interests.").
A court may not
change the name of a child on the ground that the change would
not cause the child any particular detriment.
That standard
would essentially place the burden on the nonmoving parent to
prove that the requested name change would harm the child
instead of placing the burden on the petitioning parent to
prove that the name change will benefit the child, as § 26-17636(e) contemplates.
See Barabas, 868 S.W.2d at 287 ("Since
Mr. Barabas was the party seeking to change his son's surname,
he had the burden of proving that the change would be in the
child's best interest.").
The father did not present the trial court with any
evidence indicating that the name change would promote the
best interests of the child.
The trial court hypothesized
that, without the name change, the child might not identify
with the father, but that conclusion is not based on any
evidence relating to this particular child.
Devine,
398
So.
See Ex parte
2d 686 (Ala. 1981) (holding that, when
deciding what is in the best interests of a child, a court
15
2120798
must
make
particular
an
individualized
circumstances
of
determination
the
case
without
generalized notions regarding families).
no
evidence
regarding
the
relationship to the father.
child's
based
on
relying
the
on
The record contains
understanding
of
his
The father also did not present
any evidence indicating that the use of the mother's surname
has
engendered
some
confusion
in
the
child
about
his
relationship to the father.
On the other hand, the mother testified that the child
already knows his name as her surname, that all of his records
identify him by that name, that he would be confused about his
identity if his name was now changed, and that the child has
always
lived
judgment,
with
because
her.
of
the
Pursuant
distance
to
the
between
trial
court's
the
parties'
assignments the child will not exercise visitation with the
father every other weekend but, instead, will see the father
on holidays and during school breaks. At all other times, the
child will be living with the mother, who has been the sole
custodian of the child during his entire life.
The trial
court received no evidence indicating that the mother would
discontinue using her surname; therefore, the child will be
16
2120798
identified by the same surname as his primary caretaker and
physical
custodian
as
he
has
been
throughout
his
life.
Although the factor is not dispositive, we cannot overlook the
fact that the father waited over three years to establish his
paternity, all the while knowing that the child was not
bearing his surname and that the child would become accustomed
to his given name.
Based on the foregoing, we conclude that the record does
not contain substantial evidence demonstrating that good cause
existed to change the child's sur name.
See, e.g., In re
M.C.F., 121 S.W.3d at 897-98 (reversing a judgment changing a
child's name where the father merely made a bare request for
the name change and had failed to present evidence showing
good cause for the change and where the mother had presented
evidence indicating why the change would not be in the child's
best interests).
Therefore, we reverse the judgment of the
trial court and remand this cause for the entry of a judgment
denying the father's request to change the child's surname.
REVERSED AND REMANDED WITH INSTRUCTIONS.
Thompson, P.J., and Pittman, Thomas, and Donaldson, JJ.,
concur.
17
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
