Robert Holub v. Jennifer Colinger

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION I

ROBERT HOLUB

APPELLANT

V.

JENNIFER COLINGER

APPELLEE

CA 03-436

November 12, 2003

APPEAL FROM THE LEE COUNTY CIRCUIT COURT

[NO. DR-2002-88]

HONORABLE BAIRD KINNEY, JUDGE

AFFIRMED

Terry Crabtree, Judge

The appellant, Robert Holub, appeals from an order of Lee County Circuit Court filed on February 11, 2003, which established the paternity of his minor child, set child support, scheduled visitation, and denied his petition to change the surname of the child. On appeal, he argues that the trial court erred by refusing to give the child his surname. We affirm.

The appellee, Jennifer Colinger, gave birth to a baby girl on May 14, 2002. Appellee named her daughter Ashtyn Colinger. Appellant was present at the hospital at the time of the delivery. At one time the parties dated; however, their relationship deteriorated, and they broke up several weeks before their daughter's birth. The parties never married, but they agreed that appellant was the father.

On June 6, 2002, appellant filed a petition to establish paternity, change the child's surname to Holub, and set visitation. On September 5, 2002, an agreed temporary order establishing paternity, setting visitation and child support was entered by the court. Appellee was granted primary custody of the child while appellant received standard visitation rights. On January 16, 2003, the circuit court held a hearing on appellant's petition to change the child's surname. At the hearing, six witnesses testified, including the parties and appellee's mother.

The law in Arkansas is well settled concerning the surname to be given a child born out of wedlock. Huffman v. Fisher (Huffman II), 343 Ark. 737, 38 S.W.3d 327 (2001); Huffman v. Fisher (Huffman

I), 337 Ark. 58, 987 S.W.2d 269 (1999); Matthews v. Smith, 80 Ark. App. 396, 97 S.W.3d 418 (2003). The best interest of the child is the dispositive consideration in determining whether a child's surname should be changed. Carter v. Riddell, 75 Ark. App. 8, 2 S.W.3d 506 (2001). In Huffman I, supra, the Arkansas Supreme Court announced six factors for the trial court to consider when determining the best interest of the child:

(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; and (6) the existence of any parental misconduct or neglect. Id. at 68, 987 S.W.2d at 274. In order to successfully petition to change a minor child's surname, the moving party has the burden of demonstrating that such a change is in the best interest of the child. Id. Where a full inquiry is made by the trial judge of the implication of these factors and a determination is made with due regard to the best interest of the child, the trial judge's decision will be upheld so long as it is not clearly erroneous. Matthews, 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. Bell v. Wardell, 72 Ark. App. 94, 34 S.W.3d 745 (2000).

In its February 11, 2003 order the trial court addressed each of the six factors outlined in Huffman I, supra. The trial court made the following findings:

The child is less than one (1) year of age and will not turn one (1) until May 14, 2003. Therefore, the child is too young to have a preference. However, the Court notes that the child will be in the primary custody of [appellee] and her family, who carry the name Colinger. During visitation with the father, the child will be residing in a household with only the father carrying the name Holub. The remaining members of the father's household do not carry the surname Holub. With regard to the effect of the change of the child's surname on the preservation and development of the child's relationship with each parent, each parent has testified that the surname of the child will have absolutely no effect as far as he or she is concerned and each party will love and develop a relationship as best as possible regardless of the child's name. Therefore, this factor does not favor either party. The length of time the child carried the name Colinger is not significant since [she] has been born less than one (1) year. While there has been no testimony that either the name Colinger or Holub carries any negative connotation, it does appear from testimony of witnesses that the Colinger name does have a significant amount of community respect in Lee County, Arkansas. This is the county and area in which the child will be residing, growing up and going to school. The child will be around more family members carrying the name Colinger. With regards to potential embarrassment, difficulties involving harassment or embarrassment the child might experience, the Court finds that children being as they are, it could be just as likely either way if, in fact, any embarrassment or harassment might take place in the future. Therefore, the Court finds based upon the testimony that this factor does not favor either party. There is no evidence of misconduct or neglect of either party. Therefore, considering all the factors, and the evidence produced by these parties, the Court declines to change the child's surname, and it shall remain Colinger.

The trial court made a full inquiry of the implication of the Huffman factors. The circuit judge thoughtfully articulated his explanation and gave due regard to the best interest of the child before denying appellant's petition. We must uphold his decision so long as it is not clearly erroneous. Huffman I, supra. As we are not left with a definite and firm conviction that a mistake has been made, we affirm.

Griffen and Neal, JJ., agree.