JOSHUA RICHARD BRAUNSCHWEIG , P etitioner - Appell ee , vs. SUMMER RAE FAHRENKROG f/k/a SUMMER RAE FRANK , Respondent - Appell ant .
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IN THE COURT OF APPEALS OF IOWA
No. 8-986 / 08-0729
Filed March 11, 2009
JOSHUA RICHARD BRAUNSCHWEIG,
Petitioner-Appellee,
vs.
SUMMER RAE FAHRENKROG
f/k/a SUMMER RAE FRANK,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Buena Vista County, John P. Duffy,
Judge.
A mother appeals a district court order changing the last name of her son
to match the last name of the child’s biological father.
REVERSED AND
REMANDED.
James Van Dyke of Van Dyke & Werden, P.L.C., Carroll, for appellant.
Joshua Walsh of Gailey & Walsh Law Office, Newell, for appellee.
Considered by Vaitheswaran, P.J., and Eisenhauer and Potterfield, JJ.
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VAITHESWARAN, P.J.
Summer Fahrenkrog, formerly Summer Frank, appeals a district court
order changing the last name of her son from “Frank” to “Braunschweig,” to
match the last name of the child’s biological father, Joshua Braunschweig. We
reverse and remand.
I. Background Facts and Proceedings
Summer Frank gave birth to a baby boy. She obtained a birth certificate
listing only her name as a parent and listing the child’s last name as Frank.
Paternity testing later established Joshua Braunschweig as the father.
Approximately fifteen months after the child’s birth, Braunschweig filed a
petition to establish custody and visitation rights. Braunschweig identified the
child by the last name of Frank and did not seek to have his own last name given
to the child.
The parties resolved the action by stipulating that Summer Frank would
assume physical care of the child and Braunschweig would receive liberal
visitation rights. The stipulation referred to the child’s last name as Frank and
made no mention of a different last name. The stipulation was approved by the
district court.
When the child was three, Braunschweig filed a new petition under a
different court number “to place natural father’s name on birth certificate and to
change child’s surname.” In her answer, Frank admitted paternity and admitted
that Braunschweig’s name could be added to the birth certificate, but denied that
the child’s last name should be changed.
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Following a hearing, the district court determined that Braunschweig’s
petition sought an initial determination of the child’s last name rather than a name
change. The court further concluded that it was in the child’s best interests to
have Braunschweig’s last name.
Frank appealed.
Our review is de novo.
Iowa R. App. P. 6.4; In re
Marriage of Gulsvig, 498 N.W.2d 725, 727-28 (Iowa 1993).
II. Analysis
Frank contends the district court acted inequitably in concluding that
Braunschweig’s petition sought an initial determination of the child’s last name
rather than a change of his last name. This distinction is important because the
standards governing the two types of determinations differ significantly. If this is
an initial determination of a child’s last name, “neither parent has a superior right
in determining the child’s last name” and the governing consideration is the best
interests of the child. Montgomery v. Wells, 708 N.W.2d 704, 707-08 (Iowa Ct.
App. 2005). If this is a name change, Iowa Code chapter 674 (2007) governs.
For children under fourteen, this chapter requires the consent of the parents
listed on the birth certificate or a waiver of consent for certain enumerated
reasons. Iowa Code § 674.6.
On our de novo review of the record, we conclude Braunschweig sought a
name change rather than an initial determination of the child’s last name.
Braunschweig petitioned for an initial determination of his rights vis-à-vis his son
in a separate action filed two years earlier. At that time, he could have asked the
court to review the last name on the child’s birth certificate. See Gulsvig, 498
N.W.2d at 728 (holding the court’s authority to determine a child’s custody
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included the authority to determine a child’s name as an incident of the child’s
legal status). Braunschweig did not ask the court to make that determination but
instead proceeded as if the child’s last name was Frank.
When Braunschweig petitioned the court two years later, his petition was
styled a petition “to change child’s surname.” The caption accurately described
the nature of the action. The child’s legal status and his parents’ rights to him
were determined in the custody action. See Montgomery, 708 N.W.2d at 706
(stating “when the court first entertains an action between the parents to
determine their legal rights and relationships with each other and the child, the
court may also consider the legitimacy of the child’s original naming as part of its
determination of the child’s legal status and custody”) (emphasis added). The
second petition sought to change a component of the child’s legal status. That
petition was governed by the standards of the name change statute, Iowa Code
chapter 674. To hold otherwise would allow multiple filings, effectively removing
minors from the ambit of the name change statute.
Iowa Code section 674.6 states in pertinent part:
If the petition includes or is filed on behalf of a minor child under
fourteen, both parents as stated on the birth certificate of the minor
child shall file their written consent to the name change. If one of
the parents does not consent to the name change, a hearing shall
be set on the petition . . . . At the hearing the court may waive the
requirement of consent as to one of the parents if it finds:
1. That the parent has abandoned the child;
2. That the parent has been ordered to contribute to the
support of the child or to financially aid in the child’s birth and
has failed to do so without good cause; or
3. That the parent does not object to the name change after
having been given due and proper notice.
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As noted, consent is a prerequisite to a name change. See In re Marriage
of Quirk, 504 N.W.2d 879, 881-82 (Iowa 1993). Frank was the only parent on the
birth certificate and she did not consent.
Therefore, the district court could
change the child’s name only if one of the enumerated conditions for a waiver
was satisfied. It was uncontested that Frank did not abandon the child, as she
was his primary caretaker from the time of his birth. Id. at 882. It was also
undisputed that she contributed to his support and that she objected to the
change of his name. As none of the factors for waiver were met, the child’s last
name could not be changed.
III. Attorney Fees
Frank requests the payment of appellate fees. The application is denied.
We reverse and remand for entry of an order of dismissal.
REVERSED AND REMANDED.
Vaitheswaran, P.J., and Eisenhauer, J. concur. Potterfield, J. dissents.
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POTTERFIELD, J. (Dissenting)
I respectfully dissent, being convinced that the district court correctly ruled
that Braunschweig was not precluded from challenging the initial surname
unilaterally given to his son by Frank. The district court relied on our opinion in
Montgomery v. Wells, 708 N.W.2d 704, 706 (Iowa Ct. App. 2005), to find that
Braunschweig was entitled to challenge the initial determination of his child’s
surname. The majority opinion now focuses on the word “first” in Montgomery to
conclude that a parent may not challenge the initial determination of a child’s last
name if the parents previously litigated any of “their legal rights and relationships
with each other.”
The Montgomery court decided that the district court has authority to
resolve a name dispute between unmarried parents under Iowa Code chapter
600B, stating:
When a parent unilaterally chooses a child’s name, the other parent
may request the court to examine the name issue – as the mother
does not have the absolute right to name the child because of
custody due to birth.
Consequently, [she] should gain no
advantage from her unilateral act in naming [the child]. Therefore,
when the court first entertains an action between the parents to
determine their legal rights and relationships with each other and
the child, the court may also consider the legitimacy of the child’s
original naming as part of its determination of the child’s legal
status and custody.
Montgomery, 708 N.W.2d at 706 (citations omitted).
I do not find that the court’s use of the word “first” is necessary to the
Montgomery ruling, particularly since Montgomery involved a first action on the
part of the unmarried parents. The facts here present a more typical procedural
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history that includes several actions between the parents to resolve their legal
rights and responsibilities, beginning with a paternity determination.
Following a paternity test confirming his belief that he was the father of the
child, Braunschweig asked the court to determine his and Frank’s rights
regarding custody, visitation, and support of their child. The parents resolved
Braunschweig’s petition by stipulation, agreeing to share joint legal custody; that
Frank would have physical care; and that Braunschweig would have liberal
visitation, would pay child support, and provide health insurance.
The court
issued a decree approving the parents’ agreement, “confirming” paternity and
stating that child support had been “addressed in a separate action.” The record
does not reflect specifically what separate actions already had been brought to
the district court.
Braunschweig then exercised his rights and met his responsibilities as the
child’s father and joint legal custodian. He returned to court when he and Frank
could not agree on their child’s surname, which Frank had chosen unilaterally.
The majority now finds that, even as a joint custodial parent, he forfeited his
ability to challenge the initial determination of his child’s surname by not litigating
that issue in the first action brought to court.
The majority would limit his
procedural options to a name change petition under Iowa Code chapter 674, a
petition subject to Frank’s veto. See In re Marriage of Gulsvig, 498 N.W.2d 725,
728 (Iowa 1993) (discussing the right of a joint legal custodian in equal
participation in decisions affecting “the child’s legal status” under Iowa Code
section 598.41(2) and finding that a child’s name is an incident of the child’s legal
status).
Montgomery requires consideration of the factors arising from the
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passage of time between a first action by a parent and a subsequent challenge to
an initial naming. Montgomery, 708 N.W.2d at 708-09. Here, the district court
carefully weighed the age of the child and the length of time during which he had
become aware of his last name. The court found that those factors were less
important than the reality that the child was the only person in his household,
including his mother, stepfather, and half-brother, with the name Frank. I would
affirm the ruling of the district court.
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