Anthony Hunter and Elaine Hunter v. Timothy M. Haunert
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Judge Miller’s published opinion for 121907
DIVISION II
CA07439
December 19, 2007
ANTHONY HUNTER and
ELAINE HUNTER
APPELLANTS
AN APPEAL FROM THE
INDEPENDENCE COUNTY
CIRCUIT COURT
[DR023844, DR062644]
v.
HON. TIMOTHY M. WEAVER , JUDGE
TIMOTHY M. HAUNERT
APPELLEE
AFFIRMED IN PART; REVERSED AND
REMANDED IN PART
This case involves the right of appellants, Anthony and Elaine Hunter,
to change the surname of their minor son, J.H., from Haunert to Hunter, and
to terminate appellee Timothy M. Haunert’s visitation rights with J.H. While
seemingly simple, this case is complicated by several facts. First, Anthony
impregnated Elaine while she was married to Haunert. Second, J.H. was
born while Elaine and Haunert were married and Haunert, for all intents and
purposes, was the only father J.H. had for the first two years of his life, until
Elaine divorced Haunert and married Anthony. Third, the divorce decree
entered by Elaine and Haunert found that Haunert stood in loco parentis to
J.H.; ordered that Haunert have visitation with J.H.; and required Haunert
to pay child support and provide medical insurance for J.H.
The Hunters petitioned the Independence County Circuit Court to
change J.H.’s surname to Hunter and to terminate Haunert’s visitation rights.
The trial court denied the Hunters’ petition and found that the marriage of
Anthony and Elaine was not a material change of circumstances warranting
the termination of Haunert’s visitation rights. The court also denied the
Hunters’ petition to change J.H.’s surname.
On appeal, the Hunters argue that: (1) the court erred by denying their
petition to change J.H.’s surname; (2) the court infringed upon their
Fourteenth Amendment Due Process rights by permitting Haunert to have
visitation with J.H., against their wishes; (3) the court erred in finding that
their marriage was not a material change of circumstances warranting the
termination of Haunert’s visitation rights.
We agree that the Hunters’ marriage was not a material change in
circumstances warranting the termination of Haunert’s visitation rights. We
also hold that the Hunters’ rights to due process are not violated by the order
of the trial court. Therefore, we affirm the trial court’s ruling that Haunert is
permitted to continue his visitation with J.H. The trial court, however, erred
in denying the Hunters’ petition to change J.H.’s surname to reflect the name
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of his parents, by whom he is being raised. Therefore, we reverse on that
point.
I. Background
Elaine and Haunert were married in 1988 and lived together until their
separation in August 2002. Their divorce decree (DR023844) was entered
on March 4, 2003. During their marriage, two children were born: T.H. (d.o.b.
81891) and J.H. (d.o.b. 5100). Although Haunert was not the biological
father of either child, the divorce decree specifically found that Haunert had
stood in loco parentis to the children and the decree ordered Haunert to pay
child support and to maintain health insurance for the children. Elaine
married Anthony on April 29, 2004, and a paternity test established Anthony
as the father of J.H.
Haunert filed a petition for contempt on July 21, 2005, alleging that
Elaine was refusing him visitation with the minor children. The parties
conferred and resolved their conflict by consent order on September 1, 2005.
That order reaffirmed the parties’ original agreement permitting Haunert to
have visitation with J.H. and T.H. It also allowed Haunert to make up the
visitation that he had missed.
Elaine and Haunert then petitioned and counterpetitioned the court
concerning various issues from visitation to custody, culminating in Elaine’s
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June 14, 2006, petition to terminate Haunert’s visitation rights with J.H.
Approximately one week later, the Hunters petitioned to have Anthony
adjudicated the biological father of J.H., to have J.H.’s surname changed to
Hunter, and to amend J.H.’s birth certificate to reflect that Anthony was his
father.
II. The Hearing
A hearing on the petitions was held on August 28, 2006. Prior to this
hearing, the parties agreed that Haunert would have custody of T.H., who was
neither Anthony’s nor Haunert’s biological son. At the hearing, Haunert
testified that although he was not the biological father of the children, he had
paid child support and had maintained health insurance on the children. He
also stated that the Hunters had denied him visitation on at least four
occasions. He further stated that he has a fatherson relationship with J.H.;
that he has been J.H.’s father since he was born; that J.H. calls him “dad”;
that he buys J.H. clothes and attends his baseball games; that his family
considers J.H. his child and treats him as such; that he purchased a dirt bike
for J.H.; and that it was not in J.H.’s best interest to have his last name
changed.
T.H. testified that he and J.H. have a good relationship. He said that
J.H. refers to Haunert as “dad” and to Anthony as “stepdad.” He said that
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he and Anthony have a bad relationship and that he has not been in the
Hunters’ house in months.
Haunert’s neighbor, Linda Dickerson, testified that J.H. was “crazy
about” Haunert.
She said that Haunert and J.H. have a wonderful
relationship and that she had not seen anything that would suggest that
Haunert was not capable of raising his children.
Anthony testified that J.H.’s surname should be changed to Hunter
because J.H. is confused as to why his surname is Haunert. Anthony said
that he, Elaine, and all of his seven children, except J.H., carry the Hunter
surname. Anthony stated that J.H. is very close to his siblings and that he
knew he was J.H.’s father from the time he was born. Moreover, J.H. has
lived with Anthony and Elaine since their marriage in 2004. Anthony also
testified that he supports Elaine in whatever decisions she makes regarding
whether Haunert should continue to have visitation with J.H.
Elaine testified that J.H. has always known Anthony as his father as
proven by the fact that J.H. did not visit Haunert on Father’s Day in 2005.
She said that J.H. is confused by having to call two men “dad” and that
Haunert undermines the Hunters’ parenting decisions. She stated that she
wants a “normal life” and that having to send J.H. to Haunert’s house, which
she believes is somewhat unsafe, infringes on her and Anthony’s parental
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rights. She stated, however, that Haunert pays child support and that she
has never given him any of the money back.
The trial court found that there was insufficient proof to support the
Hunters’ petition to change J.H.’s surname. The court entered an order (1)
denying the Hunters’ request to terminate Haunert’s visitation with J.H.; (2)
terminating child support; (3) granting full custody of T.H. to Haunert; (4)
holding Elaine in contempt and ordering her to pay $500 attorney’s fee to
Haunert; (5) denying the petition to change J.H.’s surname; (6) ordering
Haunert to get rid of J.H.’s dirt bike; and (7) granting Haunert the right to
attend J.H.’s parentteacher conferences and school functions. This appeal
followed.
III. Standard of Review
We review domesticrelations cases de novo on the record, and we will
not reverse the trial court’s findings unless they are clearly erroneous.
Robinson v. FordRobinson, 362 Ark. 232, 208 S.W.3d 140 (2005). A trial
court’s finding is clearly erroneous when, although there is evidence to
support it, the reviewing court on the entire record is left with a definite and
firm conviction that a mistake has been committed.
Id.
We give due
deference to the superior position of the trial court to view and judge the
credibility of the witnesses. Id. This deference is even greater in cases
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involving children, as a heavier burden is placed on the judge to utilize to the
fullest extent his or her powers of perception in evaluating the witnesses,
their testimony, and the best interest of the children. Id.
IV. Change of Surname
The Hunters first argue that the trial court erred when it refused to
change J.H.’s surname to Hunter. When a party seeks to have a child’s
surname changed, the following factors should be considered:
(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.
Huffman v. Fisher (Huffman I), 337 Ark. 58, 987 S.W.2d 269 (1999). Where a
full inquiry is made by the trial court regarding the implication of these
factors and a determination is made with due regard to the best interest of
the child, the trial court’s decision will be upheld where it is not clearly
erroneous. Gangi v. Edwards, 93 Ark. App. 217, 218 S.W.3d 339 (2005). The
burden of proof is on the moving party to demonstrate that the name change
is in the best interest of the child. Id. The court also has the discretion to
consider other factors when determining what surname would be in the best
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interest of the child. See Bell v. Wardell, 72 Ark. App. 94, 34 S.W.3d 745
(2000). In its letter opinion, the trial court determined that insufficient
evidence was presented to support the name change. We disagree.
The trial court erred by denying the Hunters’ petition to change J.H.’s
surname to Hunter. Three of the Huffman factors are relevant to this case.
Factor three, which focuses on the length of time the child has borne a given
name, weighs in favor of keeping J.H.’s surname the same. This is true
because J.H. has borne the name Haunert all of his life. Factors two and five,
however, clearly weigh in favor of the proposed name change. Changing
J.H.’s surname will help preserve and develop his relationship with his
biological parents, Anthony and Elaine, both of whom carry the Hunter name.
J.H. may also be subjected to difficulties, harassment, or embarrassment
simply because he bears a name different from that of his parents and
siblings. Indeed, J.H. is being raised in the home with his biological parents
and a younger sibling, all of whom carry the name Hunter. He should be
allowed to bear their name. For these reasons, we reverse and remand with
instructions to enter an order granting the name change.
V. Due Process
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The Hunters next argue that, as J.H.’s parents, they have a
fundamental liberty interest in deciding who has visitation with J.H. See
Troxel v. Granville, 530 U.S. 57 (2000). They argue that the trial court’s
refusal to terminate Haunert’s court ordered visitation with J.H. infringes
upon their Fourteenth Amendment right to due process. The Fourteenth
Amendment provides that no State shall deprive any person of life, liberty, or
property, without due process of law. Id. The Supreme Court of the United
States has held that parents have a fundamental right to make decisions
concerning the care, custody, and control of their children. Id.
The Hunters have waived their due process argument. Elaine and
Haunert entered their divorce decree on March 4, 2003. The decree was
entered by consent and provides that Haunert stood in loco parentis to J.H.
It ordered visitation between Haunert and J.H. and Elaine never asserted that
the decree violated her due process rights. Although visitation between
Haunert and J.H. continued after Anthony and Elaine were married, Anthony
never objected to it, although he knew that J.H. was his biological son.
Indeed, less than one month before filing the petition to terminate Haunert’s
visitation rights, Elaine entered a consent order reaffirming Haunert’s
visitation rights. Anthony and Elaine also continued to accept child support
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checks for J.H. and allowed Haunert to pay for J.H.’s medical insurance well
after their marriage.
We would affirm even if the Hunters had not waived their due process
argument because Troxel is distinguishable from the present case. In Troxel,
the Supreme Court held that the State of Washington’s grandparentvisitation
statue was unconstitutional. 530 U.S. at 67. Consequently, the trial court’s
order granting visitation to grandparents, over the objection of the child’s
mother, was reversed. The grandparents in Troxel never stood in loco parentis
to the grandchild, and the award of visitation was based on a statute and not
a divorce decree.
In Robinson, 362 Ark. at 239, 208 S.W.3d at 143, the Arkansas Supreme
Court distinguished Troxel. Unlike Troxel, in which grandparents sought
visitation, “the visitation in [Robinson] arose out of a custody determination
in a divorce proceeding rather than from a lawsuit brought by nonparents
pursuant to a statute.” Id. at 234, 208 S.W.3d at 143. The court further held
that:
Moreover, and critical to our review in this case, the party
awarded visitation in this case was found by the circuit court to
stand in loco parentis to the child. In other words, the court
granted visitation to a person considered to be, in all practical
respects, a noncustodial parent.
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Id. at 239, 208 S.W.3d at 143, 144. It is undisputed that Haunert’s visitation
arose out of a divorce proceeding and was not brought pursuant to a statute.
It is also undisputed that Haunert stood in loco parentis to J.H. Therefore, the
precedent established in Robinson applies and the trial court did not err in
denying the Hunters’ petition to terminate Haunert’s visitation with J.H.
VI. Material Change of Circumstances
Finally, the Hunters argue that the trial court erred in concluding that
their marriage was not a material change of circumstances warranting the
termination of Haunert’s visitation rights with J.H. The trial court maintains
continuing jurisdiction over visitation and may modify or vacate those orders
at any time when it becomes aware of a change in circumstances or of facts
not known to it at the time of the initial order. Meins v. Meins, 93 Ark. App.
292, 218 S.W.3d 366 (2005). While visitation is always modifiable, courts
require more rigid standards for modification than for initial determinations
in order to promote stability and continuity for the children and in order to
discourage repeated litigation of the same issues. Id. The party seeking a
change in the visitation schedule has the burden to demonstrate a material
change in circumstances that warrants a change in visitation. Id. The best
interest of the children is the main consideration. Id. The trial court found
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that no material change in circumstances existed to warrant a modification
of the visitation schedule.
The trial court did not err in denying the Hunters’ petition to terminate
Haunert’s visitation with J.H. The Hunters’ marriage was not a material
change in circumstances sufficient to modify Haunert’s visitation rights. See
Middleton v. Middleton, 83 Ark. App. 7, 113 S.W.3d 625 (2003). Further,
terminating Haunert’s visitation rights would not be in J.H’s best interest.
This is true because J.H. has known Haunert as his father his entire life and
has enjoyed visitation with Haunert since his mother and Haunert divorced.
His older brother, T.H., whom he has known since birth and with whom he
has a good relationship, lives with Haunert. The record indicates that T.H.
is not welcome in the Hunters’ home and, therefore, terminating Haunert’s
visitation would also disallow J.H. the opportunity to maintain his
relationship with T.H. For these reasons, we affirm on this point.
Affirmed in part; reversed and remanded in part, with instructions.
MARSHALL and VAUGHT, JJ., agree.
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