James v. Hopmann

James v. Hopmann
1995 OK CIV APP 105
907 P.2d 1098
66 OBJ 3943
Case Number: 83692
Decided: 08/08/1995

LEANDRA LYNN JAMES, APPELLANT,
v.
JON TERRY HOPMANN, JR., APPELLEE.

Appeal from the District Court of Cleveland County; Janet Foss, Judge.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH DIRECTIONS.

J. David Rambo and Lauren LeBlanc Day, Norman, for Appellant.
M. Ellen Feaver, Oklahoma City, for Appellee.

MEMORANDUM OPINION

CARL B. JONES, P. J.

¶1 In this appeal Leandra Lynn James posits the trial court erred in denying her motion for new trial on the issue of change of name of her minor child under the authority of 10 O.S. 1991 § 90.4 .

¶2 After judgment was rendered, the mother requested a new trial on the issue of the name change, and that motion was denied. The court then entertained a motion by the mother to assess attorney fees as the prevailing party, and so did the father. In this hearing all issues were stipulated to except who would pay the fees. The court ruled each party would bear their own attorney fees. An amended petition in error raised the attorney fee issue. On appeal the only two issues briefed are error in assessing attorney's fees and error in determining that the best interest of the child was served by the ordered name change. Other issues raised in the motion for new trial but not addressed on appeal are waived. Shadid v. American Druggist Fire Ins. Co., 386 P.2d 311 (Okla. 1963).

¶3 Both parties concede that in this appeal from the trial court's decision applying 10 O.S. § 90.4 , the standard of review is abuse of discretion in ruling the child's best interests were served by granting Appellee's request that the child bear his surname. This is consistent with other areas of domestic relations law in which the lower court's determination will not be disturbed upon review unless it is contrary to the law, against the clear weight of the evidence or an abuse of discretion. Randol v. Randol, 849 P.2d 1118 (Okla. App. 1993). The concept of abuse of discretion is correctly attached to a judgment which is clearly erroneous and against all reason and evidence. Abel v. Tisdale 619 P.2d 608 (Okla. 1980).

¶4 Appellant's first argument is that the name change was improper because there was no evidence of best interest. This argument begins however with a discussion of general points of law from other jurisdictions. The first of these is that giving greater weight to the potential choice of the paternal surname in instances where the child is born out of wedlock could implicate equal protection guarantees.

¶5 The Appellant also lists factors which the trial court should consider in this decision as shown by other jurisdictions. Appellee also lists the same factors which should be considered by the trial judge. The first group of these are: identification of the child as a part of a family unit;

¶6 This trial court decision need not be fettered at trial, or rebuked at the appellate stage, by an exclusive list of considerations to be utilized on the trial bench. Here, as in so many places, the trial court is vested with wide discretion and that a trial court decision is made in the actual presence of the fact finder and with the benefit of live testimony. The State has codified the finding needed for a name change and the trial judge is entitled to rule on the statutorily necessary showing of best interests in the first instance using her legal discretion, circumscribed only by the appellate standard of review, assuming inappropriate considerations are not relied on in fashioning relief. It is appropriate to state here this Court finds no justification for giving greater weight to the father's surname, nor do we think that meeting the support obligations of a parent is grounds for a presumption in favor of the father. Indeed, properly considered, the custom of giving a child the father's surname should not serve to give him an advantage in the selection of the child's name any more than custody by virtue of birth gives the mother an absolute right to name the child. Keegan v. Gudahl, 525 N.W.2d 695 (S.D. 1994).

¶7 The evidence the judge relied on in fashioning her ruling is, thankfully, rather uneventful insofar as negative information. Both sets of grandparents are described as loving and attentive, eager to develop a relationship with the child. Evidence supports the same conclusion for the parents. It is proper to say in this cause that the child is surrounded by an extended maternal and paternal family ready to accept and nurture this child. Most of the evidence presented the trial court here presents, to the appellate reader of the transcript, a typical set of facts which might be brought out in a case such as this.

¶8 The second point of error raised here is the contention that the trial court erred in holding the parties should bear their own attorney's fees. Appellee asserts only that the statute should be narrowly construed and not applied where the father is not recalcitrant about assuming his duties as a parent. Title 10 O.S. 1991 § 89.3 specifies that the successful party in a paternity action shall be allowed reasonable costs and attorney fees to be set by the court.

¶9 This court is committed to the fact that the word "shall" connotes a mandatory duty when it is utilized in a statute. Schaeffer v. Shaeffer, 743 P.2d 1038, 1040 (Okla. 1987); when a contrary legislative intent is not plainly apparent, Citicorp Savings and Trust Company v. Banking Board, 704 P.2d 490, 493 (Okla. 1985). Indeed, this rule has been specifically applied to paternity cases. Department of Human Services ex rel McBride v. Perkins, 893 P.2d 1019 (Okla. App. 1995). Accordingly the trial court erred in not assessing attorney fees against the Appellee. Additionally, the Appellant is entitled to appellate fees to be set by the court on remand under the authority of Sisney v. Smalley, 690 P.2d 1048 (Okla. 1984), as they were timely requested under 12 O.S.Supp. 1993 § 696.4 (C). It is noted that the name change statute contains no similar provision for attorneys fees, therefore the Appellant was the successful party on the only issue for which fees can be awarded.

¶10 The judgment of the trial court is affirmed in all respects except the attorney fee award is reversed and the cause is remanded with directions to award the Appellant fees and costs.

¶11 AFFIRMED IN PART, REVERSED IN PART AND REMANDED WITH DIRECTIONS.

¶12 GARRETT, C.J., and JOPLIN, J., concur.

Footnotes:

1 The statute in its entirety, reads:

A. At any time after a determination of paternity, the mother, father, custodian or guardian of the child may file a motion requesting the court to order that the surname of the child be changed to the surname of its father. The court shall thereafter set a hearing on said motion. Notice of the filing of the motion and the date of the hearing shall be served by process on all parties.

B. If, after said hearing, the judge finds that it is in the best interest of the child to bear the paternal surname, the court shall enter an order to that effect which shall include findings of fact as to each issue raised by the parties.

C. The practice, pleading, and proceedings as set forth in this section shall conform to the applicable rules prescribed by the Code of Civil Procedure.

2 Pizziconi v. Yarbrough, 177 Ariz. 422, 868 P.2d 1005 (App. 1993), review denied.

3 Barabas v. Rogers, 868 S.W.2d 283 (Tenn. App. 1993). As Appellant notes, this case contains an interesting thumbnail sketch of the history of surnames.

4 D.R.S. v. R.S.H. 412 N.E.2d 1257 (Ind. App. 1980).

5 D.K.W., v. J.L.B. 807 P.2d 1222 (Colo. App. 1990), cert. denied.

6 D.K.W., supra.

7 Mark v. Kahn, 333 Mass. 517, 131 N.E.2d 758, 53 A.L.R.2d 908 (1956).

8 In re Iverson, 241 Mont. 140, 786 P.2d 1 (Mont. 1990). This case also lists as a factor the existence of siblings and their surnames.

9 Barabas v. Rogers, 868 S.W.2d 283 (Tenn. App. 1993).

10 Barabas, supra.

11 D.K.W., supra.

12 Bobo v. Jewell, 38 Ohio St.3d 330, 528 N.E.2d 180 (1988), D.K.W., supra.

13 Bobo, supra.

14 Daves v. Nastos, 105 Wash. 2d 24, 711 P.2d 314 (1985).

15 In re Lone, 134 N.J. Super. 213, 338 A.2d 883 (1975). Traditionally a child bore the mother's name when it was not born in wedlock, which could be viewed as rendering the effect of this consideration, indeterminate at best. Given the current condition of society it may be that difference of last names as a source of embarrassment is declining.

16 When the child is lucky enough to be surrounded by attentive and appreciative family members.