Dorsey v. Tarpley
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Dorsey v. Tarpley, No. 95, Sept. Term 2003. Opinion by Harrell, J. FAMILY LAW CHANGE OF CHILD S SURNAME NO INITIAL SURNAME OR CHANGE OF SURNAME STAND ARDS TO APPLY There were no findings of fact made in the present case regarding the parties apparent and material factual dispute whether the Father agreed to the child being given at birth solely the Mother s surname. Based on the virtual absence of an evidentiary record, coupled with the absence of judicial fact-finding, this case may not be categorized at this stage as either a no initial name or a change of name case for purposes of the application of the correct legal analysis. The parties need to adduce evidence in support of their respective contentions and, assuming that evidence presents the dispute the parties here argue, the Circuit Court needs to resolve whether an agreement existed between the Mother and Father at birth to give the child the surname of Dorsey. Relevant factors would include the presence or absence of the Father s signature on the birth certificate, the Mother s testimony, the Father s testimony, and the testimony of any relatives or others who were present during any discussion about naming the child. If the co urt finds that th e Father ac quiesced in the child s surname at birth, the Father, in order now to justify the desired cha nge in the c hild s surnam e to include his own, must demonstrate extreme circumstances to justify changing the child s surname. If the Father did not acquiesce in the naming of the child at birth, then the court should consider what is in the best interests of the child. Circuit Co urt for Mo ntgomery C ounty Case # 00885 IN THE COURT OF APPEALS OF MARYLAND No. 95 September Term, 2003 DEA MICHELLE DORSEY v. BRENDIN D. TARPLEY Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Opinion by Harrell, J. Filed: May 6, 2004 Alexander Craig Dorsey ( the C hild ) was born on 5 September 2000 in Montgom ery Cou nty, Maryland. H is name ap peared as s uch on the birth certificate. The Child s biological parents were not m arried at the time, nor did they marry subsequently. On 14 January 2003, Brendin D. Tarpley ( the Father ), Appellee, filed in the Circuit Court for Montgom ery Cou nty a Petition for Name Change seeking to change the surnam e of the C hild from Dorsey to D orsey-Tarpley. A ppellant, Dea Michelle Dorsey ( the Mother ), opposed the Petition. A hearing was held on 2 April 2003. Counsel argued, but no evidence was adduced. The Petition was granted and an Order for Change of Name was entered on 15 April 2003, changing the Child s nam e fro m Alexa nder Cra ig Dorse y to A lexander Cra ig Dorse yTarp ley. The Mo ther, on 22 April 2003, filed a Motion for New Trial or, in the alternative, to Alter or Amend Judgment. The Circuit Court denied the motion, and the Mother appealed.1 This Court, on its own initiative and before any further proceedings in the C ourt of Special Appeals, issued a writ of certiorari. 378 Md. 617, 837 A.2d 928 (2003 ). Appellant framed the following issue for appellate review: Whether the lower court erred in granting the father s petition to change the child s surname since the parents had agreed prior to the child s b irth [to] his surname and the father failed to meet his burden of proof that the change was 1 As directed in Maryland Rules 2-201 and 15-901, the case in the Circuit Court was captioned In Re: Alexander Craig Dorsey. On appe al, the parties and various court administrative personnel inconsistently captioned the case as either Dea Dorsey v. Alexander Craig Dorsey or Dea Dorsey v. Brendin Tarpley. We be lieve, accord ing to Rule 8-111(a), that the more appropriate caption on appeal is as we reflect on the cover sheet of this opinion. in the best interest of the child and that extreme circumstances warranted a change? [2] I. It is obvious that Alexander s parents presently disagree over the proper surname for him. Apparently they also disagree ab out whe ther there w as an agree ment rega rding his surname at his birth . Unfortunately, despite the latter disagreement, there was no fact-finding by the hearing judge on this pivotal factual dispute. The M other conte nded that: [e]ven though the Father was the biological father of the Child, they had agreed prior to the Child s birth that he would [bear] the last name of the Mother, irrespective of her marital status. The Father had acknow ledged the ir agreement at the time their son was born. He was present at the birth and acquiesced to the Mother s maiden name as the Child s s urname o n the birth certificate. The Father never contested the Child s surname until he was two and a half years old. 2 Although presenting a single question for review , Appellan t s brief quix otically offers four assertions under a section entitled Questions of Fact Presented. Three of these assertions break into its constituent parts the question for review and suggest conclusions favorable to Appellant, while the fourth statement claims the father s petition should be denied due to the doctrine of laches. After carefully reading Appellant s brief, we found only a single, short reference to the doctrine of laches burie d in a parag raph on page 1 1. A review of the Record Extract revealed no argument or assertion of laches, as such, before the Circuit Co urt. The scope of appella te review is g overned by Maryland R ule 8-131 . That rule provides in part: (a) Gen erally. . . . Ordinarily, the ap pellate court will not decide any other issue unless it plainly appears by the record to have been raised in or decided by the trial court, but the Court may decide such an issue if necessary or desirable to guide the trial court or to avoid the exp ense an d delay o f anoth er appe al. Our review of arguments not raised at the trial level is discretionary, not mandatory. State v. Bell, 334 Md. 178, 188, 638 A.2d 107, 113 (199 4). As this case is being remanded for other reasons, Appellant will have the opportun ity to raise and flesh out in the Circu it Court her new argument about the doctrine of laches; thus, we shall not address it here. 2 Specific ally, in her opp osition to Pe tition for Na me Cha nge filed in the Circuit C ourt, Appellant alleged that the Father signed the minor child s birth certificate and acknowledgment of parentage with this understanding in mind at the time the child was born. To the co ntrary, the Father contende d that: [a]t the time of the child s birth, [the Mother] insisted that [the Father s] last nam e (Ta rpley) would o nly be given to their son if [the Father] promised to marry [the Mother]. For a myriad of difficult and emotional reasons, this promise could not be made by [the F ather] a t that time . The parties could not agree on the last name for their child, emotions were high and members from both sides of the family were present. No agreement could be reached on the last nam e. Over [the Father s] objection, [the Mother] used her last name (Dorsey) as the child s last name. The Mother also argued in her trial court pleadings and papers that the Father was happy with the Child s surname until the Child was two and half years old and that the name modification was sought to harass, an noy, and em barrass her. In addition, she pointed to bank accounts and assets, such as stocks, bonds, and life insurance, which had been established previously with the Child s surname of Dorsey . At the hearing in the Circuit Court no witnesses testified and no docume ntary evidence was o ffered . The hearing judge, at the outset of the 2 April 2003 hearing, questioned the attorneys about the case, based on the pleadings, and what they contended represented a disposition in the best interests of the child. The hearing, therefore, proceeded 3 as oral argument by counsel. Approximately two-third s of the way through the comparatively short proceeding, the Father s attorney stated: And what I would like to reiterate and if You r Hono r wants to resolve the factual differences in this case, t hen I think perhaps the Court would w ant to hear testimony o n it. But there is a difference of opinion as to whether or not there was an agreement reached when the child was born on what the child s last name would be. They say there was an agreement. My client says there was not an agreeme nt. From our position, if there had been an agreement, we would not be here today. (Empha sis added). Unwilling to press the p oint about adducing evidence in suppo rt of his representations, the Father did not mention again the notion of receiving evidence. The Mother likewise did not press this point. The court apparently did not recognize any need to resolve the apparent evidentiary dispute. The hearing p roceeded with m ore argument by counsel, leading to the court s announcement of its oral ruling. The hearing judge concluded that it would best serve the interest of the Child to allow the name ch ange. He reasoned that, although the law states that the c ourt should be reluctant to change a name, in this Child s case: [H]e is not in school yet. He is young, and it is a name that he is going to use the rest of his life. And I don t think it goes back to whether there was or was not an agreement when this child was born . . . . But the bottom line on this is that . . . if I allow him th e addition a nd the cha nge of na me and it is really an addition of a nam e the n both par ents are repre sented. An d there is some appeal to m e alth ough cer tainly counsel s argument is sound that most people have one family name. But on the other hand, here in a circumstance where there is at least a separation, the child should at least carry the tradition of both families. And it really comes down to how you all as paren ts handle this c hild the rest of his life, and I don t think, frankly, in the long run , whether I do this 4 or don t do it, it is going to have great impact on his ultimate well-being. But I do believe that it is in his best interest to carry the name of both parents under the circumstances where there is a separation. But as I told you before, I am one judge that is asked to make a decision. I have made it, I guess based upon what I believe is in the best interest of the child and what factually is described to me, but it is n ot a decisio n that is th e same decisio n that so me oth er judg e migh t not ma ke. The trial judge based his decision on the young age of the Child and, when the parents are separated, the Child s general interest in having the name of both parents. The Mother contends on appeal that th e hearing ju dge wa s in error in concluding that these circumstances alone justified a chan ge of n ame. For reason s we shall e xplain, we shall vacate the judgment and remand for an e videntiary hearing and fact-fin ding be fore the court m ay decide the case .. II. In general, parents are said to enjoy the right jointly to adopt any surname for their child they wish to chose, just as they determine what shall be a child s given name. Lassiter-Geers v. Reichenbach, 303 Md. 88, 94-95, 492 A.2d 303, 306 (1985). Neither parent, however, has a superior right to determine the initial surname their child sha ll bear. Id. Unlike in the case where no initial surname is given a child at birth, the rule in a change of name case is to loo k at what is in the best intere sts of the ch ild before determining if a name change is warranted. West v. Wright, 263 Md. 297, 299, 283 A.2d 401,402 (1971), and cases cited therein . Other than in the case of adoption proceedings, there is a presumption against granting such a change except under extreme circumstances. Id. 5 We have said that there are two paramount factors to consider when determining the existence of extreme circumstances. First, the court is to consider any evidence of misconduct by a parent that could make the child s continued use of the parent s surname shameful or disgraceful. West, 263 M d. at 300, 28 3 A.2d a t 403. Seco nd, the cou rt is to consider whether the parent wilfully abandoned or surrendered his or her natural ties to the child. Id. Although the parties in the present case pled and arg ued a fac tual dispute a s to whether a consensus existed as to the Child s surname at birth, there was no effort made by the hearing judge to resolve this dispute. Based on the virtual absence of a proper evidentiary record, coupled with the absence of judicial fact-finding, this case may not be categorized for analysis at this stage as either a no initial name or a change of name case. The parties must adduce evidence in support of their respective factual contentions and, assuming that admissible evidence presents the dispute the p arties argue existed at the Child s birth, the Circuit Court needs to resolve whether such an agreement existed between the Mother and Father at birth, i.e., to give the Child the surname of Dorsey. Relevant evidence bearing on that, it seems to us, might be found in, among other places, the presence or absence of the Father s signature o n the birth certificate or so-called acknowledgment of parentage, the Mother s testimony, the Father s testimony, and/or the testimony of an y relatives or other witnesses who were present during any discussion about naming the Child at birth. 6 If there was an agreement to name the Child at that time, then, under our caselaw, the petitioning parent, the F ather in this case, must satisfy, by admissible evidence, the extreme circumstances standard in order to generate a prima facie case for the name change he seeks. West, 263 Md. at 300, 283 A.2d at 403. In change of name cases, as noted previousl y, abandonment and serious misconduct disgracing an existing surname are of paramount importance because they epitomize the sort of exceedingly negative behavior by a parent that will justify changing the child s surname, when the parents gave the child that parent s surname at birth. Shroeder v. Broadfoot, 142 Md. App. 569, 584, 790 A.2d 773, 782 (2002). The focus in Maryland change of name cases involving minors is often on the extreme circumstances of profoundly bad parental behavior. N o profou ndly bad behavior by the Mother has been alleged yet in the present case. If there was no agreement regarding the name of the Child at birth, then, under our caselaw, the Father must demonstrate that the desired name change is in the Child s best interest. Lassiter-Geers, 303 Md. at 95, 492 A.2d at 307 (when there is no agreement between the parties about what the initial surname of a child shou ld be, the test is w hat is in the best interest of the child). When parents have not agreed upon their child s surname, there are a multitude of factors that usually are considered in deciding what is in the child s best interest. Wh ile these facto rs also may inclu de aband onment a nd serious m isconduc t, these two touchstones are not primary or determinative in the analysis. 7 In Lassiter-Geers, we adopted a pure best interests standard for no initial name cases. Lassiter-Geers, 303 Md. at 94, 492 A.2d at 306. The factors to consider, when they exist and are ap propriate in a given case , in deciding w hat surnam e will serve the best interests of the child are: 1) the child's reasonable preference, if the child is of the age and maturity to express a meaningful preference; 2) the length of time the child has used any of the surnames being considered; 3) the effect that having one name or the other may have on the preservation and deve lopment o f the child's m other-child and father-child relationships; 4) the identification of the child as a part of a family unit; 5) the embarrassment, difficulties, or harassment that may result from the child's use of a particular surname; 6) misconduct by one of the child's parents disparaging of that parent's surname; 7) failure of one of th e chi ld's parents to contribute to the child's suppo rt or to maintain contact with the child; and 8) the degree of community good will or respect associated with a particular surnam e. Shroeder, 142 Md. App. at 588, 790 A.2d at 785, and cases cited therein. In the present case, the hearing judge conclude d that he did not think it g oes back to whether there was or was not an agreement when this child was born. He was mistaken. The hearing judge then based his decision to grant the change of the Child s surname on the young age of the Child and the Child s general interest in having the name of both paren ts because the parents were not living together. This is a misapplication of the law. Acc ordingly, we shall vacate the court s order and remand the case for further proceedings not inconsistent with this opinion. If, based on the evidence, it is found that there was no 8 parental mutual a gree men t to name the c hild Do rsey at birth, the Circuit Court should be guided by the approp riate best interes t of the child factors set out above. If the cou rt determines, however, that an agreement existed at birth, the court, before granting a name change, must be satisfied that extreme circumstan ces justify that de cision. In any ev ent, an evidentiary hearing and fact-finding by the court are necessary before that decision is ripe to be made. DECREE OF 2 APRIL 2003, CHANGING THE CHILD S NAME TO ALEXANDER CRAIG DORSEYT A R PL E Y VAC ATE D. C ASE REMANDED TO TH E CIRCU IT COURT FOR MONTGOMERY COUNTY FOR FURTHER P R O C E E D I N G S N O T I N C O N S I S T EN T W I T H T H I S OPINION. COSTS TO BE PAID BY APPELLEE. 9
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