James Lentz v. Lyndsey Raye Brooks

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

JAMES LENTZ

APPELLANT

V.

LYNDSEY RAYE BROOKS

APPELLEE

CA03-988

September 22, 2004

APPEAL FROM THE PHILLIPS COUNTY CIRCUIT COURT

[DR-2002-480-B]

HON. KATHLEEN BELL,

CIRCUIT JUDGE

AFFIRMED AS MODIFIED

Larry D. Vaught, Judge

Appellant James Lentz and appellee Lyndsey Brooks had a child out of wedlock on June 19, 2002. There was no dispute as to whether Lentz was the biological father. Brooks filed a complaint for paternity on September 18, 2002, and a judgment was entered on September 25, 2002. On November 15, 2002, Brooks filed a complaint for child support, and Lentz filed a response and counter-petition on November 19, 2002, asking in part that the surname on the child's birth certificate be changed from Brooks to Lentz. After a hearing on February 28, 2003, the trial court awarded $140 per week in child support based on Lentz's income-tax return, and a lump sum of $1596 based on his 2002 tax refund of approximately $7000. In addition, the trial court ordered that the child's surname be hyphenated, Brooks-Lentz. An order was entered on May 29, 2003, and a timely notice of appeal followed on June 12, 2003. From that order comes this appeal.

Lentz raises two points on appeal: (1) the trial court erred by refusing to give the parties' child his surname, Lentz; (2) the trial court erred by assessing child support against appellant's tax refund as income. We affirm on the first point and affirm as modified on the second point.

In determining whether to change the surname of a minor child, the only relevant inquiry is the best interest of the child. Huffman v. Fisher, 343 Ark. 737, 38 S.W.3d 327 (2001) (Huffman II) (citing Huffman v. Fisher, 337 Ark. 58, 987 S.W.2d 269 (1999) (Huffman I)). The burden of proof is on the moving party to demonstrate that the change is in the best interest of the child. Id. In Huffman I, the supreme court held that the trial court must make this determination on a case-by-case basis through "thoughtful and careful consideration" of at least six factors: (1) the child's preference; (2) the effect of the change of the child's surname on the preservation and development of the child's relationship with each parent; (3) the length of time the child has borne a given name; (4) the degree of community respect associated with the present and proposed surnames; (5) the difficulties, harassment, or embarrassment that the child may experience from bearing the present or proposed surname; (6) the existence of any parental misconduct or neglect.

Where a full inquiry is made by the trial court of the Huffman I factors and the determination is made with due regard to the best interest of the child, the trial court's decision will be upheld unless it is clearly erroneous. Huffman II, supra. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been made. Id.

Lentz argues that the trial court failed to apply the Huffman I factors as required by Arkansas law, and instead ordered the name to be hyphenated as a compromise based on the wishes of Brooks, the custodial parent. While it is true that the trial judge's bench ruling indicated that she ordered the name to be hyphenated (Brooks-Lentz) because Brooks did not object to a hyphenated name, the trial court heard evidence with respect to the factors. At the hearing, Lentz and his mother testified that they thought that a child should have his father's surname and that a stigma would be associated with the child having a hyphenated name. Brooks and her father testified that the child should have her last name and that a hyphenated name was acceptable. After the conclusion of the hearing, the trial court ordered that the child's name be hyphenated to include the Lentz surname, reasoning that Brooks had no problem with the hyphenated last name. There was also testimony that both names were respected in the community.

Inasmuch as Lentz is arguing that the trial court erred in failing to make express findings regarding whether a name change was in the best interest of the child in light of the Huffman I factors, the trial judge is not required to find the facts specially and state separately her conclusions of law thereon unless requested to do so. Ark. R. Civ. P. 52(a). Furthermore, under our de novo review of equity cases, we review both law and fact and, acting as judges of both law and fact as if no decision had been made in the trial court, sift the evidence to determine what the finding of the trial court should have been and render a decree upon the record made in the trial court. Surratt v. Surratt, ___ Ark. App. ___, ___ S.W.3d ___ (Feb. 25, 2004). Id. Based on the facts presented in this case, we cannot say that the trial court's decision is clearly erroneous.

Considering the Huffman I factors in light of the evidence presented in this case, it is clear that only factors two and five are relevant. Factors one (child preference) and three (length of time a child has been given the name) are not relevant because the child was still an infant at the time of trial. With regard to factor four, the degree of community respect associated with the present and proposed surnames, there was no evidence that one name was better than the other.

Lentz argues that factor two, the effect of the change of the child's surname on the preservation and development of the child's relationship with each parent, is particularly relevant because changing the child's surname to Lentz would preserve his relationship with the child and would not harm Brooks's relationship with the child. Here, the child does have the Lentz name, albeit hyphenated. Thus, factor two does not weigh in favor of either side.

In regard to the fifth factor, the difficulties, harassment, or embarrassment that the child may experience from bearing the present or proposed surname, Lentz testified that he thought there is a stigma associated with a hyphenated name. His mother testified that she did not know anyone with a hyphenated name and that a stigma would be attached to a child going to school not having his father's last name. Brooks's father and a friend of Lentz both testified that they did not know of anyone with a hyphenated name in their community. Brooks testified that a hyphenated name would be acceptable in the community. Like factor two, the evidence regarding the fifth factor does not weigh in favor of either side. Based on the foregoing, we cannot say that the trial court clearly erred in ordering the child's name to be hyphenated.

For his second point of appeal Lentz contends that the trial court erred in assessing child support against his $6844 income tax refund for the 2002 tax year. We disagree. "Income" is defined by In re: Administrative Order Number 10: Arkansas Child Support Guidelines § II, 331 Ark. 581 (1998), as "any form of payment, periodic or otherwise, due to an individual, regardless of source, including wages, salaries, commissions, bonuses, workers' compensation, disability, payments pursuant to a pension or retirement program, and interest, less proper deductions...." The supreme court has held that the definition is intentionally broad and designed to encompass the widest range of sources consistent with this State's policy to interpret "income" broadly for the benefit of the child. Ford v. Ford, 347 Ark. 485, 65 S.W.3d 432 (2002).

Because of the broad definition of income, we cannot say that the trial court clearly erred in awarding Brooks a portion of Lentz's tax refund as child support. However, we hold that the trial court erred in awarding Brooks $1596 of the refund because it exceeds the permissible amount under Administrative Order No. 10. Under section III b. of Administrative Order No. 10, when the payor's income exceeds the chart amount, fifteen percent of the income is allowable for one dependent. Brooks should have only been awarded $1026.60, therefore, we affirm as modified.

Affirmed as modified.

Stroud, C.J., and Hart, J., agree.