ROWLAND v. SHURBUTT



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ROWLAND

v.

SHURBUTT


March 3, 2000

Record No. 990923

LINDA ROWLAND

v.

EDWARD DAVID SHURBUTT

FROM THE CIRCUIT COURT OF THE CITY OF
CHESAPEAKE

Russell I. Townsend, Jr., Judge

Present: Carrico, C.J., Compton,[1] Lacy, Hassell, Keenan, Koontz,
and Kinser, JJ.

OPINION BY JUSTICE A. CHRISTIAN COMPTON


This is the appeal of an order granting a
natural father’s petition to change the surname of his minor
child. The central issue is whether the evidence is sufficient to
support the trial court’s ruling.

The facts, considered during a March 1998
hearing, are not disputed. The only testimonial evidence
presented was the deposition of a psychiatrist, who had been
employed by the father.

The child, a male, was born in Norfolk on
September 3, 1991. His mother, residing in Chesapeake, is
appellant Linda Grant Rowland. His father, residing in Virginia
Beach, is appellee Edward David Shurbutt.

When the child was conceived, the mother was
not married to the father and was separated from her spouse. When
the child was born, the mother and her husband had reconciled and
the child was given the surname "Rowland," a name he
still carries.

Since birth, the child has been in the physical
custody of his mother. Court orders provide, however, that both
parents have "joint legal custody" of the child. The
parents have been litigating issues concerning child custody,
child support, and visitation most of the child’s life.

In March 1998, the father filed duplicate
petitions in the court below to change his child’s surname to
"Shurbutt." The father asserted that he desired to
change the name in order "to prevent confusion and
difficulty in the transaction of the minor child’s lawful
affairs" and that the name change would be in the child’s
best interest. The mother objected to the proposed change.

Following the hearing, the trial court
concluded that the child’s best interest would be served by
granting the father’s petition. In a February 1999 order, from
which we awarded the mother this appeal, the court ruled that the
child’s name be changed as requested, finding that "good
cause was shown for this action." The court also ruled,
however, that the child’s name remain unchanged pending appeal.

On appeal, the mother contends that the trial
court erred in ordering the name change because the evidence was
insufficient to support the order. The father, while contending
the evidence was sufficient to support the order, also argues
that this Court is without jurisdiction to consider the appeal.

We shall address the jurisdictional question
first. Although not argued orally, the father contends on brief
that the Court of Appeals of Virginia, not this Court, has
jurisdiction of this appeal. He points out that Code
? 17.1-405(3)(e) provides that appeals of circuit court
orders relating to the "control or disposition of a
child" must be made to the Court of Appeals. This is such a
proceeding, he says, and the appeal should be dismissed. We do
not agree.

Ordinarily, a proceeding under the
change-of-name statute, Code ? 8.01-217, is an independent
civil action. But see Code ? 20-121.4
(permitting divorce court to restore party’s former name as part
of final decree of divorce from bond of matrimony). Although the
present matter, brought as a separate proceeding detached from
any custody or support litigation, obviously relates to a child,
it does not involve the "control or disposition of a
child," within the meaning of Code ? 17.1-405(3)(e).

An order in an independent civil action
changing a name, including that of a child, is "a final
judgment" in a "civil case," within the meaning of
Code ? 8.01-670(A)(3), which provides for appeal of such an
order to this Court. Thus, we properly have taken jurisdiction in
this matter.

We shall now turn to the central issue, that
is, whether the evidence was sufficient to support the name
change.

As pertinent to this proceeding, Code
? 8.01-217 provides that any person desiring to change his
child’s name may apply to the appropriate circuit court,
"which shall consider such application if it finds that good
cause exists therefor under the circumstances alleged." The
statute further provides that when both of the child’s parents
are living and when the parent who does not join in the
application objects to the proposed change, "a hearing shall
be held to determine whether the change of name is in the best
interest of the minor." The statute further provides that
unless the court finds that the change of a minor’s name "is
not in the best interest of the minor," the court shall
"order a change of name."

We have interpreted these statutory provisions
to mean that the burden is upon the petitioning parent, under the
circumstances of this case, to prove by satisfactory evidence
that the change is in the child’s best interest. Beyah v.
Shelton
, 231 Va. 432, 434, 344 S.E.2d 909, 911 (1986); Flowers
v. Cain
, 218 Va. 234, 237, 237 S.E.2d 111, 113 (1977).

As we examine the facts, it must be remembered
that because the evidence before the trial court on the subject
of the child’s best interest was in the form of a deposition, and
the court did not see and hear the witness, the court’s finding
of fact, while highly persuasive and entitled to great weight, is
not binding on us. Johnson v. Insurance Co. of N. Am., 232
Va. 340, 345, 350 S.E.2d 616, 619 (1986); Kaplan v. Copeland,
183 Va. 589, 593, 32 S.E.2d 678, 679 (1945).

A prolonged recitation of the psychiatrist’s
testimony, submitted by the father, is unnecessary. Prior to the
March 1998 deposition, the physician had seen the child on three
occasions, the father on eight occasions, and the father’s
present wife once. He had "never met" the mother or her
husband. Additionally, the doctor had reviewed a "Social
Services report" resulting from a "home study"
that mainly dealt with the issues of custody and visitation.

When asked his opinion upon whether a change of
name "would be in the child’s best interest and what do you
base your opinion on," the psychiatrist stated that he felt
two issues were presented. First, a child "should be able to
carry the name of both his parents." The "second
issue," he said, relates to the father’s role in the child’s
development.

The witness noted that the father "has
been extensively involved with the child . . . being
very much involved in his care and his education and
. . . also has been a very good provider. He’s accepted
whatever economic responsibilities are there." Therefore,
the doctor opined, "it should be very simple that [the
child] should carry the names of the parents that are
biologically his parents."

The witness was asked whether it would be
"harmful" to change the child’s name in view of the
fact that he had carried the name Rowland for more than six
years. The doctor responded that it would not be a
"problem" for the child, but that the "problem is
going to be with the adults trying to accept whatever decision is
made."

The witness said the child "has been able
to merge very well with both sets of parents," noting that
the child "has no difficulty dealing with" living in
the primary custody of his mother and having regular visitation
with the father. Noting that the mother and father "are very
good parents," the doctor stated that the child is
"probably the best balance[d]" of all the parties
involved.

According to the witness, the child is a
"very healthy kid"; he is "progressing
normally," "interacting appropriately," and
"maturing" both "[s]choolwise" and
"socialwise."

Finally, the witness said that he did not
"care" if the child’s surname was
"hyphenated," but that the father "has the
right" for the child to carry his "last name."

We hold that the psychiatrist’s testimony, and
the record as a whole, fails to establish by satisfactory
evidence that the change of name is in the child’s best interest.
The psychiatrist’s opinions, which either were nonresponsive to
the issue or were contradictory, focused mainly on the father’s
"rights," only tangentially addressing the child’s
interests. Actually, the testimony supports the view that the
child’s best interest will be served if his name remains
unchanged. With his present name, he is healthy, happy,
developing normally in school and socially, and is the best
balanced of all the parties.

Consequently, we conclude that the trial court
abused its discretion in granting the name change. Thus, the
order below will be reversed and the father’s several petitions
will be dismissed.

Reversed and dismissed.


JUSTICE KOONTZ, concurring in part and
dissenting in part.

I concur with the majority’s holding that
this Court, and not the Court of Appeals of Virginia, has
jurisdiction over this appeal. However, because I disagree with
the majority’s further holding that "the
psychiatrist’s testimony, and the record as a whole,"
fails to establish that the change of name in question is in the
child’s best interest and, therefore, that the trial court
abused its discretion in granting the natural father’s
petition to change the surname of his child, I respectfully
dissent.

The majority gives little, if any,
consideration to the mandate of Code ? 8.01-217 that unless
the court finds that the change of a minor’s name "is
not in the best interest of the minor," the court shall
"order a change of name." In the present case, the
trial court was presented with a petition by the natural father
to change the surname of his male child from Rowland, the
stepfather’s surname, to Shurbutt, the father’s
surname. The "record as a whole," carefully considered
by the trial court, reflects that this father is not an
"absentee" parent. As a result of numerous legal
proceedings since shortly after the child’s birth, the
courts have awarded "physical" custody of the child to
the mother and "joint legal custody" of the child to
both parents. At the father’s request, the child’s
birth certificate was amended in 1996 to reflect that Mr.
Shurbutt is the child’s natural father. The father visits
regularly with the child, provides regular financial support for
him, and is active in the child’s school activities.

Moreover, it is undisputed that the child is
aware that Mr. Shurbutt is his father and that Mr. Rowland is his
stepfather. Indeed, the child calls Mr. Shurbutt "Dad"
and Mr. Rowland "Pop." While the majority is critical
of the testimony of the psychiatrist, he very clearly testified
that the child should have the surname Shurbutt and should have
had that name "from the day he was born." The
psychiatrist reasoned that "the true identity" of the
child was important to the child, the change of name would be in
the child’s best interest because it would avoid difficulty
in school, and "this is the time in [his] psychosexual
development that [he needs] to be clear" concerning his
identity.

Applying the above quoted portion of Code
? 8.01-217, the trial court concluded that the child’s
surname should be Shurbutt rather than Rowland. The trial court
exercised its discretion to make the child’s surname and his
birth certificate reflect the child’s true identity. I
cannot conclude that such was an abuse of judicial discretion
under the particular circumstances of this case.

There are, however, additional reasons that
prompt my dissent in this case. In Flowers v. Cain, 218
Va. 234, 237 S.E.2d 111 (1977), we acknowledged the proposition
that a father’s interest in having his child continue to use
his surname is relevant to a determination of the child’s
best interest. Id. at 236, 237 S.E.2d at 113. While Flowers
and subsequently Beyah v. Shelton, 231 Va. 432, 344 S.E.2d
909 (1986), address a change of name over the objection of a
father, they both support the reasonable conclusion that absent
"substantial reasons" to the contrary, it is in the
best interest of a child to have the surname of his father rather
than the surname of his stepfather. Although we have not
expressly stated it, the reason should be obvious. A surname is
the family name, it reflects who we are, our true identity, and
unless there are substantial reasons to the contrary a child
should always be permitted to use his father’s family name
rather than the family name of a stepfather. Today the majority
holding casts a shadow of doubt over the rationale of these
cases.

The circumstances in the present case are
merely the reverse of those in Flowers and Beyah.
There we prohibited a change of name over the objection of the
father; here the father seeks a change of name to accurately
reflect the child’s true parentage. In my view, the interest
of this father in having his child use his surname is also in the
best interest of his child and should be accorded the same
consideration as the interests of the fathers in those cases.
Granting that consideration in this case, the child’s
surname should not remain "Rowland" over the
father’s objection. In short, the trial court corrected what
was wrong from the day the child was born and made it right.

Accordingly, I would affirm the judgment of the
trial court.

 

FOOTNOTES:

[1] Justice Compton participated in
the hearing and decision of this case prior to the effective date
of his retirement on February 2, 2000.

 

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