In re Wilson

IN_RE_WILSON.93-240; 162 Vt. 281; 648 A.2d 648

[Opinion Filed July 1, 1994]


 NOTICE:  This opinion is subject to motions for reargument under V.R.A.P.
 40 as well as formal revision before publication in the Vermont Reports.
 Readers are requested to notify the Reporter of Decisions, Vermont Supreme
 Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
 order that corrections may be made before this opinion goes to press.


                                 No. 93-240


 In re Alexis G. Wilson                       Supreme Court
   and Terrence M. Wilson
                                              On Appeal from
                                              Chittenden Superior Court


                                              February Term, 1994


 Matthew I. Katz, J.

 Charles T. Shea, Dennis R. Pearson, Craig Weatherly and Lucy T. Brown of
   Gravel and Shea, Burlington, for appellant-Grace Pomerleau

 James W. Murdoch of Murdoch & Hughes, Burlington, for appellee-Randall
 Wilson



 PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.



      JOHNSON, J.   Mother appeals from a decision of the superior court
 reversing the probate court order granting her petition to change the
 surnames of her children, Alexis and Terrence, from their father's surname
 to her birth name, Pomerleau.  Mother argues on appeal that the superior
 court (1) improperly employed a presumption in favor of father's surname,
 (2) did not use a sufficiently broad set of factors to determine the
 children's best interests and improperly weighed those factors it did
 consider, and (3) abused its discretion by disregarding the testimony of the
 children's psychologist.  We affirm.

 

      Grace Pomerleau and Randall Wilson were married in 1982.  Upon
 marriage, Grace took the surname Pomerleau-Wilson.  Two children, Alexis and
 Terrence, were born of the marriage.  The parents gave the children the
 Wilson surname.  In 1988, the parents separated.  The children were five and
 one years old at the time.
      Upon divorce, mother resumed use of her birth name.  Mother has had
 both legal and physical responsibility for the children since the divorce.
 Father has the right to visit the children on a set visitation schedule and
 the obligation to pay child support.  Father, however, has failed to pay
 child support for substantial periods even though he was generally employed,
 and visited with the children less than was permitted in the divorce decree.
 Nonetheless, the trial court found that the children "have continued to
 maintain a good relationship with the father although he is quite clearly
 the less dominant parent in their lives."  The trial court also found that
 the children have good relationships with both parents and their extended
 families.  The relationship with the maternal family is closer because the
 children spend significantly more time with their maternal grandparents.
 Since the divorce, both parents have remarried.  Mother retained the
 Pomerleau surname after she married the second time.
      Mother brought the name change petitions in May 1992 when Alexis was 10
 and Terrence was 5.  Alexis had already begun using the Pomerleau name at
 school, and mother had registered Terrence for school under the name
 Pomerleau.  The probate court granted the petitions.  Father appealed to the
 superior court, which reversed, finding that it was in the children's best
 interest to retain father's surname of Wilson.  It is from this decision
 that mother appeals.

 

                                     I.
      The first issue on appeal is the standard a trial court should apply in
 considering a name change petition for a minor child brought under 15 V.S.A.
 { 812.  Mother argues that the superior court improperly presumed that the
 children should retain their father's surname.  She contends that the proper
 rebuttable presumption is in favor of the custodial parent's naming
 preference, or in the alternative, that the presumption should be in favor
 of a "blank slate."
      The trial court employed the clearly established standard for review of
 a name change petition regarding minor children in Vermont and most other
 jurisdictions -- whether the change is in the best interests of the minor
 children.  In re Fletcher, 145 Vt. 209, 212, 486 A.2d 627, 629 (1984); see
 also Bobo v. Jewell, 528 N.E.2d 180, 184 (Ohio 1988) (most courts apply best
 interests standard when considering name change petition).  Mother argues,
 however, that the best interests analysis should be "guided" by a rebuttable
 presumption in favor of the custodial parent's preference, just as the
 custodial parent makes other decisions regarding education and religion.  In
 re Schiffman, 620 P.2d 579, 584 (Cal. 1980) (Mosk, J., concurring).  Despite
 mother's assertion to the contrary, this "guidance" would be inconsistent
 with the best interests analysis because it is not the custodial parent's
 preference, but the best interests of the child that "is the paramount
 consideration in determining whether a child's name should be changed."
 Hamby v. Jacobson, 769 P.2d 273, 277 (Utah Ct. App. 1989).  In addition,
 unlike proposed name changes, decisions regarding religion and education are
 not, in the first instance, overseen by the courts.

 

      The trial court also properly rejected mother's contention that it
 should act as if it were writing on a "blank slate."  Mother argues that a
 "blank slate" starting point is proper because we cannot assume that the
 children's interests at birth are the same as the children's interests at
 the time of the name change petition, or that the parents reflected on the
 initial naming decision.  The problem with the "blank slate" approach is
 that it ignores the fact that the children are not a blank slate at the time
 of the petition.  The parents gave the children their father's surname,
 Wilson, at birth and subsequently taught them that their name was Wilson.
 Moreover, this approach is not consistent with the best interests analysis,
 which focuses on the impact of a change in name.  If the children's
 interests have changed since birth, as mother argues they have, the best
 interests analysis is designed to take such a change into account.
      Nonetheless, mother contends that the best interests analysis, which
 necessarily maintains the status quo absent a finding that a name change is in
 the child's best interests, is inherently gender-biased because most children 
 are given their father's surname at birth.  We agree that the best interests 
 standard should not be used to give greater weight to the paternal surname.  
 Accord Hamby, 769 P.2d  at 278 ("[L]ip-service to the best interests of the 
 child should not be used as a subterfuge to nevertheless perpetuate the 
 paternal preference.").  We also agree that it has been a long-held custom to 
 name a child after the father, although such a practice is not mandated and 
 has been eroded in recent years.  The best interests analysis, however, is not 
 gender-biased.  Rather, it is gender-neutral.  The test starts with the name 
 the parents have given the child, whether that surname be maternal, paternal, 
 a combination of the both parents' surnames, or of some other origin, and 

 

 provides that "a change in the child's surname should be granted only when
 the change promotes the child's best interest. Daves v. Nastos, 711 P.2d 314, 318 (Wash. 1985).  If, as here, the court declines to change a child's
 name from the father's surname to the mother's surname because such a
 change is not in the children's best interest, the decision does not
 inherently reflect gender bias merely because the parents' original naming
 choice followed traditional custom. 
                                     II.
      Mother next argues that the list of criteria the trial court considered
 in determining the children's best interest was too narrow.  In the
 alternative, mother argues that the trial court improperly applied the
 factors it did consider.  We disagree.
      The controlling statute, 15 V.S.A. { 812, is silent as to the factors a
 court should consider in relation to a name change petition.  Other courts have
 considered many factors, including the child's preference, taking into account
 the child's age and maturity; the length of time the child has used the 
 surname; the effect of a surname change on the preservation and development of
 the child's relationship with each parent; whether the child might feel 
 embarrassment or discomfort bearing a surname different from the rest of the
 family; whether any negative association or social stigma has attached to 
 either the current or proposed name; the motives of the moving parent; and any
 other factor relevant to the child's best interest.  See In re Schiffman, 620 P.2d  at 583; Bobo, 528 N.E.2d  at 185; In re Grimes, 609 A.2d 158, 161 (Pa.
 1992); Hamby, 769 P.2d  at 277; Daves, 711 P.2d  at 318. Because the facts of 
 each petition will differ, some of the factors may not be relevant in a
 particular case and should not be considered.  Bobo, 528 N.E.2d  at 185; Hamby, 

 

 769 P.2d  at 277.  The court has broad discretion in determining what is in the
 best interests of the children, Bissonette v. Gambrel, 152 Vt. 67, 69-70, 564 A.2d 600, 601 (1989), and thus which factors the court considers is a matter of
 discretion.  In weighing these or other factors, what is important is that the
 court explain its reasons for granting or denying the name change petition.  
 See Corrette v. Town of St. Johnsbury, 140 Vt. 315, 316, 437 A.2d 1112, 1113
 (1981) (when making findings of fact, tribunal has duty to sift evidence and
 make clear statement so parties and this Court will know what was decided and
 how decision was reached). 
      Mother argues that the trial court's inquiry was too restricted because
 the court considered only the effect a name change would have on the
 noncustodial parent's relationship with the children, any stigma attached to
 the original surname, and the length of time the children used the surname.
 Although the trial court stated that those three factors were to be
 considered, the inquiry was actually much broader.  The trial court made
 findings on the effect of a name change on the children's relationship with
 both mother and father, the children's relationship with mother's extended
 family, whether any stigma was attached to either surname, and whether the
 children would suffer any embarrassment by having a different name from their
 mother.   The court decided not to give weight to the children's  preference as
 stated by the parents and the children's psychologist, because  the court found
 that when asked, the children "tend to say what they believe  the questioner
 wants to hear." 
      Mother argues that the court should have given weight to father's failure
 to pay support for the children for more than two years and his inconsistent
 visitation.  We reiterate, however, that the focus of the inquiry is the

 

 children's best interests, and not the ability or willingness of a parent to 
 pay support or meet the visitation schedule where, as here, the noncustodial
 parent has managed to maintain a good relationship with the children.       

    We also cannot agree that the trial court improperly weighed the factors
considered.  The court concluded, and mother does not disagree, that the
children have a strong bond with mother and her maternal family, so that while
changing the children's surname to Pomerleau might help them identify with her
family unit, "there is no need to strengthen the bonds" further. In contrast,
the court found that father's relationship with the children is "one already
strained by the pressures of a work schedule, and the pressures of family
politics since the divorce," and a change will likely detri- mentally affect the
children's relationship with their father and draw them further away from him. 
    Mother argues that the best interests analysis makes it almost
 impossible to win a name change petition when the children bear the name of
 the noncustodial parent.  It is true that the custodial parent and the
 children, having regular contact and the primary home, have a greater
 opportunity to maintain their psychological relationship without having to
 rely on the symbol of a name, and this fact may weigh heavily in support of
 retaining the noncustodial parent's surname.  But the determination is case
 specific and here, the trial court found that the best way for the children
 to maintain close contact with both parents was to retain the noncustodial
 parent's surname.  Mother has failed to demonstrate that the trial court
 abused its discretion in denying the name change petition.
                                    III.
      Finally, mother argues that the trial court abused its discretion when it
 disregarded the testimony of the children's psychologist, Dr. Jeffrey Martin.

 

Doctor Martin testified that Alexis did not begin using the  Pomerleau name
just to please her mother and that if Alexis were forced to  revert to the
Wilson name, there might be conflict. 
      The court found that Dr. Martin's testimony was "guarded" because he
 "stated it would be difficult to say what conflict would be caused by a
 decision to legally leave [Alexis's] name as Wilson."  Because the court was
 the trier of fact, the weight of the evidence and the credibility of the
 witnesses was for the court to decide.  V.R.C.P. 52(a)(2).  The court
 explained its reason for finding the expert unpersuasive; thus, we find no
 error.  Bissonette, 152 Vt. at 71, 564 A.2d  at 602.
      Affirmed.

                                              FOR THE COURT:

                                              __________________________
                                              Associate Justice