BRETT FRIED v. ALLISON VANCE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5976-11T4

BRETT FRIED,

Plaintiff-Respondent,

v.

ALLISON VANCE,

Defendant-Appellant.

______________________________________

November 13, 2013

Submitted October 15, 2013 Decided

Before Judges Yannotti and St. John.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FD-11-498-12.

Nicole C. Solvibile, attorney for appellant.

Szaferman, Lakind, Blumstein & Blader, P.C., attorneys for respondent (Jeffrey K. Epstein and Robert P. Panzer, of counsel and on the brief).

PER CURIAM

Defendant appeals from an order entered by the Family Part on June 21, 2012, which granted plaintiff's motion to change the surname of the parties' minor child from "Vance" to "Vance-Fried." We reverse and remand for further proceedings.

I.

This appeal arises from the following facts. The parties had a relationship while they were in high school, which resulted in the birth of a child. Plaintiff and defendant were fifteen years old at the time. Plaintiff was present when the child was born. Defendant decided to name the child Jennifer Lee Vance and plaintiff did not object.1 Thereafter, defendant continued to live with her parents with the child.

In 2011, plaintiff filed this action seeking regular parenting time with the child. He also sought to change the child's surname name from "Vance" to either "Vance-Fried" or "Fried-Vance." Plaintiff submitted a certification in support of the proposed name change.

Plaintiff stated that, when the child was born, defendant and her mother completed the form for issuance of the birth certificate, indicating that the child's surname was "Vance." Plaintiff did not "make an issue of it" at the time because the parties were "still together as a couple" and were considering marriage when they were older. Plaintiff assumed that the child's surname would then be changed to "Fried."

Plaintiff said it had become apparent that the parties "are never going to marry." He stated that he thought it best for the child to have both parents' names in her surname. Plaintiff indicated that he had been "part of" the child's life since she was born, and noted that he commenced this action so that he could have regular parenting time with the child.

Plaintiff also stated that, in view of the circumstances of the child's birth and the fact that she had never lived as part of a traditional family unit with both biological parents, having the name "Vance-Fried" or "Fried-Vance" would give the child a "tangible link to both parents." He said there was no detriment in having a surname with the names of both parents. This would show that, although the child "has never lived together with both [of] her parents, both parents love her and want the world to know that she is their child."

Defendant opposed the motion. In her certification, defendant stated that plaintiff had agreed the child would be called "[Jennifer] Vance" and he signed the birth certificate. The child was born with certain medical problems and required surgery. Defendant said the parties could not take care of the child and her parents "raised our child." Defendant said her mother and father were the child's psychological parents.

Defendant also said that she has continued to reside with her parents. She was pursuing her education and was working in the field of cosmetology. Defendant noted plaintiff has had parenting time with the child almost every weekend.

Defendant additionally stated that plaintiff had not provided any financial support for the child, and she was going to file a separate application on that issue. Defendant did not believe it was in the child's best interest to change the child's name. She thought plaintiff's request for a name change was "to spite me" or was due to plaintiff's "unreasonable fear that [her] parents were seeking to take [Jennifer] from him."

The parties met with a mediator and on January 18, 2012, the judge entered a consent order which provided, among other things, that the parties would have joint legal custody of the child, with defendant designated as parent of primary residential custody and plaintiff allowed parenting time according to a specified schedule. The order noted that the dispute regarding the name change had not been resolved.

The court conducted a brief, plenary hearing on that issue. Plaintiff testified that he was twenty years old. He was living with his mother and brothers and worked at a restaurant some weekends. Plaintiff wanted the child's name changed so that she would "have a constant reminder" that he was there and wanted to be part of her life. When the child was born, he agreed the child's surname would be "Vance" because he wanted to avoid a fight on that issue.

Plaintiff said that after the child was born, he saw her every day after school. When the child was two years old, defendant and her parents let him have supervised visits on Tuesdays, when defendant was not present. The parties broke up around that time. They had been engaged for a few months. It appears that, later, plaintiff's visitation was changed to a weekend day.

At the time of the hearing, plaintiff's relationship with defendant was "horrible." He would see the child when defendant was not at home. He said he was in a "pretty serious" relationship with another person, but they were not engaged to be married.

Plaintiff further testified that the child had not started regular schooling thus far, so she has not written her name yet. He thought it was the opportune time to change her name, rather than when she was in eighth grade or when she was more comfortable with the name "Vance." He did not care whether her surname was "Vance-Fried" or "Fried-Vance."

Defendant testified that, when the child was born, she told plaintiff the child's last name was "Vance." A nurse filled out the form for the issuance of the birth certificate, and plaintiff signed the form. Defendant stated that plaintiff had not come to her home every day after school to see the child, as he claimed. He "came when it was convenient for him."

In addition, defendant stated that her parents had welcomed plaintiff into their home until they broke up, which was in 2009 or 2010. She agreed that their relationship was "horrible." Defendant said the child writes her name. The child had started a pre-school program in September 2011 or shortly before that date.

Defendant did not think plaintiff "deserves to have" the child's name changed merely because "he wants it that way." Defendant noted that plaintiff had not supported the child financially. She stated that she was in a serious relationship with another person but they were not engaged to be married. Defendant said if she married, the child's last name would remain "Vance."

Defendant also said she believed her parents were the child's psychological parents because they had provided the child with a home and had taken care of her expenses. Defendant stated that the child was covered under her mother's health insurance plan. Defendant or her mother take the child to the pre-school program, and to a doctor when required.

Defendant's mother, Mary Vance, also testified. Mrs. Vance stated that she was present when her granddaughter was born. Mrs. Vance said that defendant is involved in parenting the child. She and her husband gave their opinions when decisions have to be made concerning the child.

Mrs. Vance denied coercing her daughter when the child's surname was chosen. It was, she said, defendant's "voluntary choice." She stated that they welcomed plaintiff into the home. She thought the child identified herself as "[Jennifer] Vance." She said the child had been writing her whole name for a couple of months.

II.

Thereafter, the judge placed her decision on the record. The judge reviewed the testimony presented at the hearing. The judge then noted that her decision was governed by Gubernat v. Deremer, 140 N.J. 120 (1995), and Ronan v. Adely, 182 N.J. 103 (2004), which require the court to determine whether the name change is in the best interests of the child and set forth the factors to be considered in making that determination.

The judge first stated that the child had used the surname "Vance" in the four years since she was born. The judge did not view this as a significant amount of time, since the child had not started formal schooling. However, the judge pointed out that the child had been writing her name in the previous months, as defendant and Mrs. Vance had testified.

The judge also considered whether the child was identified as a member of a family unit. The judge noted that plaintiff had testified that he had difficulty communicating with daycare providers because he and the child had different surnames. The judge also noted that defendant had agreed that the child's surname would remain "Vance" if defendant married and changed her own surname.

The judge found that, because the child was only four years old, the name change would not cause her any anxiety, embarrassment or discomfort. The judge said, "Hyphenated names are not the rarity any longer and in fact parents that are married give their children hyphenated names so that the child has part of the" names of both biological parents. The judge added that the child was too young to express any preference regarding her surname.

The judge determined that, considering all the relevant facts, changing the child's surname to "Vance-Fried" would be in her best interests. The judge said that, since the child was young and had not started formal schooling, this was an "opportune" time to change her surname. The judge additionally observed that, although the child knew her last name was "Vance," all she had to do was "add a hyphen and five more letters."

The judge additionally found that defendant's refusal to agree to the name change was "really based upon her own anger" with plaintiff because he had not supported the child financially or supported her emotionally. The judge said that defendant never indicated that the name change would not be in the child's best interests "per se."

The judge entered a final judgment dated June 21, 2012, which permitted the child's name to be changed to "[Jennifer Lee] Vance-Fried" and authorized the child to assume that name from and after the date of the order. The judgment required plaintiff to file a certified copy of the final judgment with the Bureau of Vital Statistics in the State Department of Treasury. This appeal followed.2

III.

Defendant argues that the trial judge erred by granting plaintiff's application for the name change. She contends that the trial judge's decision is not consistent with Gubernat or Ronan because those cases establish a strong presumption in favor of the surname chosen by the custodial parent. Defendant contends that plaintiff failed to carry his burden to rebut that presumption.

In Gubernat, the child was born to unmarried parents and given the mother's surname at birth because the father had refused to acknowledge paternity. Gubernat, supra, 140 N.J. at 122. After paternity was established, the father commenced visitation and filed a complaint seeking joint custody, increased visitation and a change of the child's surname. Ibid.

The trial court awarded the father joint custody and increased visitation, but the mother retained primary physical custody of the child. Ibid. The court ordered the child to assume his father's surname. Ibid. The court said the change was in recognition of the father's interest in maintaining a relationship with the child for their mutual benefit. Ibid. The Appellate Division affirmed the trial court's order. Ibid.

The Supreme Court reversed. Id. at 123. The Court noted that the Legislature had ended gender-based differences in marital and parental rights, and determined that disputes between parents concerning their children should be resolved in accordance with the child's best interests. Id. at 139. That standard must be applied in determining the surname of a child, regardless of the child's birth status. Ibid. (citations omitted).

The Supreme Court also noted that, in rendering a decision on a child's surname, the trial court should consider a number of factors including: the length of time the child has used a surname; the identification of the child as a member or part of a family unit; the potential anxiety, embarrassment or discomfort the child might experience if the child bears a surname different from the custodial parent; and any preferences the child might express, assuming the child is of sufficient maturity to express such a preference. Id. at 141 (citations omitted).

The Court additionally pointed out that judges had experienced difficulty in applying these factors in assessing the child's best interests, "possibly because of the speculative quality of the inquiry into the effect that the chosen surname would have on the future welfare and happiness of the child." Id. at 142. To make the application of the best interests standard more predictable, the Court adopted "a strong presumption in favor of the surname chosen by the custodial parent." Id. at 144.

The Court said that the presumption should be given "substantial weight" but it was not irrefutable. Id. at 145. The Court explained, "The non-custodial parent bears the burden of demonstrating by a preponderance of the evidence that despite the presumption favoring the custodial parent's choice of name, the chosen surname is not in the best interests of the child." Ibid. The trial court must "scrupulously" consider all relevant factors, and "avoid giving weight to any interests unsupported by evidence or rooted in impermissible gender preferences." Ibid. (citations omitted).

The Court said the rebuttable presumption protects the right of the custodial parent to make decisions in the child's best interests, but permits judicial intervention, upon a sufficient showing by the non-custodial parent, when the custodial parent's choice is not in the child's best interests. Ibid. (citation omitted).

The Gubernat Court held that the father had not rebutted the presumption in favor of the surname chosen by the custodial parent. Id. at 146-47. The Court said that the child's need to know that he would always have a father was insufficient. Ibid. The Court pointed out that there was no empirical or circumstantial evidence suggesting that use of the paternal surname was essential to maintenance of the father-son relationship. Id. at 147. The assumption was based on discarded "gender-based notions of parenthood." Ibid.

The Court added that there was no evidence that retention of the mother's surname would be contrary to the child's best interests, nor was there any evidence showing that the father's name would better serve the child's interests. Ibid. There was no evidence establishing that the father's surname "better advances the psychological, emotional, or developmental needs of the child." Ibid.

The Court revisited these issues in Ronan. In that case, the parents were never married but lived together in the father's home. Ronan, supra, 182 N.J. at 104. A child was born of the relationship and given the father's surname. Ibid. The parties' relationship deteriorated, and the father asked the mother to take the child and leave. Id. at 105. The mother moved with the child to her parents' home. Ibid.

Thereafter, the trial court ordered joint legal custody, required the father to continue paying support and allowed visitation. Ibid. The mother later married and moved to a different town. Ibid. When the father filed a motion for increased visitation, the mother opposed this motion and filed a cross-motion to change the child's surname to her name. Ibid. The trial court denied the cross-motion, noting that the child had used his father's name for two years. Ibid. We affirmed the trial court's order. Id. at 107.

The Supreme Court reversed. Id. at 112. The Court noted that in Gubernat it had adopted "'a strong presumption in favor of the surname'" chosen by the primary caretaker. Id. at 108 (quoting Gubernat, supra, 140 N.J. at 144). The Court pointed out that no testimony had been presented by either party and the trial court had not made any findings of fact. Id. at 110. There also were no certifications from the parties setting forth their reasons for or against the name change. Ibid.

The Court said that the trial court erroneously stated there was no precedent for changing a child's surname when the child had used the name for two years. Ibid. The Court pointed out that in Staradumsky v. Romanowski, 300 N.J. Super. 618 (App. Div.), certif. denied, 151 N.J. 467 (1997), the court had authorized a name change, even though the child had been using the name for three years. Ibid.

In addition, the Court said that the trial court had not addressed the presumption established by Gubernat and it was error for the court to place the burden on the primary caretaker to show that the name change she sought was in the child's best interests. Id. at 111. The Court remanded the matter to the trial court for further proceedings. Id. at 112.

The Court again addressed these issues in Emma v. Evans, 215 N.J. 197 (2013). In that case, the parties had two children while they were married and, at birth, the children were given their father's surname, Emma. Id. at 202. The parties divorced and, in their property settlement agreement, agreed to exercise joint legal custody of the children, with the mother designated as primary residential/physical custodian. Ibid.

Thereafter, the mother resumed her birth name, which was "Evans," and modified the children's surname to "Evans-Emma." Id. at 203. The father filed a motion seeking, among other things, to preclude the mother from using the surname of "Evans-Emma" for the children. Ibid. The mother filed a cross-motion seeking to change the children's surname from "Emma" to "Evans." Ibid.

The trial court denied the father's motion and granted the mother's cross-motion. Ibid. In reaching that decision, the trial court relied upon Gubernat, noting that under that decision, the surname chosen by the custodial parent is presumed to be in the best interests of the child. Ibid.

The Appellate Division reversed the trial court's determination. Id. at 204 (citing Emma v. Evans, 424 N.J. Super. 36 (App. Div. 2012)). We concluded that there should be no presumption in favor of the surname chosen by the custodial parent when the children are named at birth by married parents. Ibid. (citing Emma, supra, 424 N.J. Super. at 41). We remanded the matter for reconsideration based on the best-interests-of-the-child standard, without a presumption in favor of the primary caretaker. Id. at 205 (citing Emma, supra, 424 N.J. Super. at 46).

The Supreme Court modified the panel's decision and affirmed. Id. at 223. The Court held that where parents have agreed upon a surname at birth, but later find themselves in a dispute over whether to change the child's surname, the court must apply the best-interests-of-the-child standard. Id. at 221. The Court said, "The parents in such a dispute should be on equal footing; neither parent should have a superior right." Id. at 221-22. "[N]either parent should benefit from a presumption in favor of his or her choice of names." Id. at 222.

However, in a footnote, the Court stated that the Gubernat analysis should continue to be employed in cases involving circumstances similar to those presented in Gubernat. Id. at 221-22, n.1. The Court added that the Gubernat analysis should not be used in "disputes that, like this, arise after a surname was given to a child by his or her parents acting in concert." Ibid.

The Court concluded that, when parents have agreed on a name for their child at birth, the parent seeking the name change in the subsequent dispute must bear the burden of showing that the change is in the child's best interests. Id. at 222. The test applies "regardless of the label attached to the parent's [sic] relationship at the time of the child's birth." Ibid. The starting point for the analysis is whether the parties agreed on a surname at birth. Ibid.

The Court stated that, in making its determination, the trial court should consider the factors enumerated in Gubernat, specifically: the length the child has used the surname; the identification of the child as a member of a particular family unit; the potential anxiety, embarrassment, or discomfort that the child may experience if the child has a different surname from that of the custodial parent; and the child's preference, if the child is mature enough to express such a preference. Id. at 222-23.

The trial court should also consider other factors, including: any parental misconduct or neglect, such as the failure to provide support or maintain contact with the child; the degree of community respect, or lack thereof, associated with the name of either parent; any improper motivation on the part of the parent seeking the name change; whether the mother has changed or intends to change her name if remarried; the child's relationship with other siblings; whether the surname has importance to family heritage or ethnic identity; and the effect the change would have on the relationship of the child and the parents. Id. at 223.

We are convinced that the matter should be remanded to the trial court for reconsideration in light of the Supreme Court's decision in Emma. Here, the judge applied the Gubernat presumption in favor of the name chosen by defendant. The judge did not make any finding as to whether the parties had agreed the child's surname would be "Vance" and whether they acted "in concert" when that name was chosen.

Furthermore, the judge found that plaintiff had rebutted the Gubernat presumption and established that the name change was in the child's best interests. In reaching that decision, the judge considered the Gubernat factors and touched upon some of the additional considerations identified in Emma.

However, when the parties were before the trial court, they assumed that the decision would be governed by the Gubernat analysis. They may have framed their proofs on that basis. They should be afforded the opportunity to present additional evidence on the factors identified in Emma, and any other evidence that might bear upon whether the name change would be in the child's best interests.

Reversed and remanded to the trial court for further proceedings in conformity with this opinion. We do not retain jurisdiction.

1 To protect the child's privacy, the first and middle names used in this opinion are fictitious.

2 We note that after the trial court entered the judgment approving the name change, the court entered a consent order that requires plaintiff to pay child support of $150 per week, plus $500 for child care retroactive to the date of defendant's application for support.