In the Matter of the Application of: Julie Ann Bauer, o/b/o P.S.B., for a change of name to P.S.B.-B.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-399

 

In the Matter of the Application of:
Julie Ann Bauer, o/b/o P.S.B.,
for a change of name to P.S.B.-B.

 

Filed November 4, 2003

Affirmed

Wright, Judge

 

Hennepin County District Court

File No. 02-19746

 

 

Beverly K. Dodge, William D. Siegel, Barna, Guzy & Steffen, Ltd., 200 Coon Rapids Boulevard, Suite 400, Minneapolis, MN  55433 (for appellant)

 

Gretchen S. Schellhas, Matthew A. Drewes, Thomsen & Nybeck, P.A., 3300 Edinborough Way, Suite 600, Edina, MN  55435 (for respondent)

 

 

            Considered and decided by Wright, Presiding Judge, Harten, Judge, and Anderson, Judge.

U N P U B L I S H E D  O P I N I O N

 

WRIGHT, Judge

 

Julie Ann Bauer challenges the district court's denial of her motion to change the last name of the parties' child, arguing that (1) the district court improperly declined to consider the wishes of the child and (2) the district court's findings are unsupported by the record.  We affirm.

FACTS

 

P.S.B. was born August 23, 1991, during the marriage of appellant Julie Ann Bauer (formerly Julie Ann Bain), and respondent Scott Bain.  The marriage was dissolved, and appellant married Ron Bauer in July 2001.  P.S.B. subsequently began using Bain-Bauer and Bauer as his last name interchangeably on his school assignments and sports jerseys.  At respondent's request, his attorney sent appellant a letter asking her to stop referring to P.S.B. by any surname other than Bain.  Shortly thereafter, appellant filed an application on behalf of P.S.B. to change his surname to Bain-Bauer, which respondent opposed.  On the date of the hearing, appellant brought P.S.B. to court to testify as to his surname preference.  But the district court ruled that it was not in P.S.B.'s best interests to testify.  The district court subsequently issued an order denying the application for a name change.  This appeal followed. 

D E C I S I O N

 

We review the district court's decision to grant or deny a name change under an abuse-of-discretion standard.  In re Welfare of C.M.G., 516 N.W.2d 555, 561 (Minn. App. 1994).  The district court's findings will be sustained unless they are clearly erroneous.  Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985).

I.

 

"[J]udicial discretion in ordering a change of a minor's surname against the objection of one parent should be exercised with great caution and only where the evidence is clear and compelling that the substantial welfare of the child necessitates such change."  Robinson v. Hansel, 302 Minn. 34, 36, 223 N.W.2d 138, 140 (1974).  In Application of Saxton, the Minnesota Supreme Court declined to alter this legal standard but elaborated on the factors that may be considered in determining the child's best interests.  309 N.W.2d 298, 301 (Minn. 1981).  These factors include the child's preference, the effect of the change of the child's surname on the child's relationship with each parent, the degree of community respect associated with the current and proposed surnames, and the difficulties the child may experience from using the present or proposed name.  Id. 

Appellant argues that, because the child's preference must be considered, the district court abused its discretion by disregarding P.S.B.'s preference for changing his name.  We disagree with appellant's contention that the child's preference must be considered.  Saxton identifies relevant factors that may be considered in determining the best interests of the child, including the child's preference.  Id. at 301-02.  Thus, the consideration of P.S.B.'s preference was permissible but not required. 

Here, the district court determined that it was not in P.S.B.'s best interests to testify.  This determination, which is well within the district court's broad discretion, will not be disturbed in the absence of an abuse of discretion.  Id.  As to this determination of P.S.B.'s best interests, the record does not demonstrate an abuse of discretion.  After declining to permit P.S.B. to testify, the district court determined that it would not consider the child's preference.  If P.S.B.'s testimony were the only means by which the child's preference could be ascertained, the district court's decision not to consider the child's preference would not be erroneous.  But here the decision to forego consideration of P.S.B.'s testimony did not preclude consideration of the child's preference.

Apart from P.S.B.'s testimony in open court, the district court had other means available to determine the child's preference, including an in camera interview with P.S.B., the use of a guardian ad litem, and affidavit and documentary evidence submitted by both parties.  Thus, while it is not error per se to forego consideration of the child's preference, it is error to disregard this relevant evidence when such evidence is available.  Id. 

The error, however, is harmless because, for the reasons discussed below, we conclude that, even if considered, evidence of P.S.B.'s preference would not reasonably have changed the result.  Id. (citing Poppenhagen v. Sornsin Constr. Co., 300 Minn. 73, 80, 220 N.W.2d 281, 285 (1974)); see Minn. R. Civ. P. 61 (requiring harmless error to be ignored). 

II.

 

Appellant also argues that the district court abused its discretion when it denied the application to change P.S.B.'s surname.  When the proper legal standard is applied, we will not reverse the district court's decision to grant or deny an application for a name change if the evidence reasonably supports the determination.  Id. at 301.  Appellant argues for a lower legal standard than that established in Robinson.  This position was first advanced by Justice Wahl's well-reasoned dissent in Saxton.  The Saxton dissent, however, was rejected by the Saxton majority.  Id. at 302. 

On review, we conclude that the district court applied the correct legal standard, and the record supports the district court's conclusion that there is not clear and compelling evidence that the "substantial welfare of the child necessitates" the proposed name change.  Robinson, 302 Minn. at 36, 223 N.W.2d at 140.  The district court considered all of the Saxton best interests factors, except the child's preference.  Finding that P.S.B. has had his father's surname for twelve years, the district court determined that this was a significant period of time for P.S.B to develop a sense of identity through his name.  The record supports the district court's conclusion that the proposed name change would weaken P.S.B.'s relationship with his father.  The evidence establishes that the name change likely would alienate respondent from P.S.B.  Conversely, there is no evidence that appellant's relationship with P.S.B. would be negatively affected if the name change did not occur.  The district court's finding that no difference exists in the potential for harassment or embarrassment if P.S.B. retains his original last name or changes it to a hyphenated version of his parents' last names likewise is supported by the record. 

In the absence of clear and compelling evidence that P.S.B.'s substantial welfare necessitates the name change, the district court did not abuse its discretion in denying appellant's application.

            Affirmed.