DAVID BAKER v. SHELIA RUTLEDGE
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RENDERED: June 12, 1998; 2:00 p.m.
NOT TO BE PUBLISHED
NO. 97-CA-001495-MR
DAVID BAKER
v.
APPELLANT
APPEAL FROM GRAVES CIRCUIT COURT
HONORABLE JOHN T. DAUGHADAY, JUDGE
CIVIL ACTION NO. 97-CI-000136
SHELIA RUTLEDGE
APPELLEE
OPINION
AFFIRMING
* * * * *
BEFORE:
ABRAMSON, GARDNER and GUIDUGLI, Judges.
GUIDUGLI, JUDGE.
Putative father, David Baker (Baker), appeals
an order of the Graves Circuit Court entered June 5, 1997, which
denied his petition to change the surname of the minor child
known as Brady Downey to Brady Baker.
Having thoroughly reviewed
appellant's arguments and applicable statutes and case law, we
affirm.
Brady Downey (Brady) was born July 8, 1994.
His
mother, Shelia Downey (now Rutledge) (Rutledge), was not married
at that time.
Pursuant to KRS Chapter 213 the name Brady Downey
was entered on the certificate of birth.
On May 8, 1995, an
order was entered in the McCracken District Court in the case of
Shelia Downey v. David Baker, Case No. 94-J-00601, in which Baker
was declared the putative father of the infant child known as
Brady Downey.
Thereafter, on April 7, 1997, Baker filed a
petition against Rutledge in which he sought joint custody of
Brady, visitation with the child, to have medical expenses
divided equally between the parties, the federal and state income
tax exemption and to require the infant child to carry
appellant's last name.
Rutledge filed a verified response and
counter-petition in which she requested that the petition be
dismissed or in the alternative, in part, that she be granted
sole custody of the minor child and that Brady continue to
maintain the last name (Downey) that he has had since birth.
On May 17, 1997, the parties entered an agreed order
which adjudged Rutledge to have sole custody of the infant child,
Brady Downey, and disposed of all remaining issues except the
issue of what surname Brady was to bear.
That remaining issue
was "taken under advisement (by the court) subject to Counsel for
the parties hereto filing simultaneous Briefs within ten (10)
days from the date of this Order."
The trial court, after
reviewing the briefs submitted by the parties, entered its order
on June 5, 1997, denying Baker's petition to change Brady's
surname.
This appeal followed.
Appellant argues that the trial court erred in not
conducting a hearing to determine which surname would be in the
best interest of the child.
Relying upon Hazel v. Wells, Ky.
App., 918 S.W.2d 742 (1996), Baker contends that neither the
father's nor the mother's surname should be given preference, but
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instead that the only factor relevant to the determination of
what surname a child should bear is the best interest of the
child.
Id. at 744.
The Hazel Court went on to list twelve
factors which should be considered relevant in determining the
"best interest" test.
However, Hazel is not controlling in the case sub
judice.
In Hazel, although the dispute was over the surname of a
child born out of wedlock, the parties had agreed to paternity,
child support and joint custody.
In this case, Rutledge has sole
custody of the child and Baker has no custody rights.
When a
child is born out of wedlock, Kentucky Revised Statutes (KRS)
213.046(10) governs the required contents of its birth
certificate.1
That statute provides:
(10) The following provisions shall apply if
the mother was not married at the time of
either conception or birth or between
conception and birth or the marital
relationship between the mother and her
husband has been interrupted for more than
ten (10) months prior to the birth of the
child:
(a) The name of the father shall not
be entered on the certificate of birth.
The state registrar shall upon
acknowledgement of paternity by the
father and with consent of the mother
pursuant to KRS 213.121, enter the
father's name on the certificate. The
surname of the child shall be any name
chosen by the mother and father. If
there is no agreement, the child's
surname shall be determined by the
parent with legal custody of the child.
1
In the Hazel case, the Court refers to the applicable
statute as KRS 213.0476(8). This statute was amended effective
July 15, 1996, and the applicable section has been renumbered.
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(b) If an affidavit of paternity has
been properly completed and the
certificate of birth has been filed
accordingly, any further modification
of the birth certificate regarding the
paternity of the child shall require an
order from the District Court.
(c) In any case in which paternity of
a child is determined by a court order,
the name of the father and surname of
the child shall be entered on the
certificate of birth in accordance with
the finding and order of the court.
(d) In all other cases, the surname of
the child shall be any name chosen by
the mother.
The trial court found that KRS 213.046(10)(a) is
controlling under the facts of this case.
Since Rutledge has
sole custody of the child pursuant to the agreed order entered by
the parties, she has statutory authority to choose the child's
last name.
We agree and thus affirm.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Benjamin J. Lookofsky
Mayfield, KY
Charles S. Foster
Mayfield, KY
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