Garling v. Spiering , 203 Mich. App. 1 ( 1993 )

203 Mich. App. 1 (1993) 512 N.W.2d 12

GARLING
v.
SPIERING

Docket No. 144746.

Michigan Court of Appeals.

Submitted August 4, 1993, at Detroit. Decided November 29, 1993. Approved for publication December 15, 1993, at 9:00 A.M.

Peralta, Johnson & Karam (by Thomas Peralta), for the plaintiff.

Before: BRENNAN, P.J., and CORRIGAN and R.C. ANDERSON,^[*] JJ.

PER CURIAM.

Plaintiff appeals as of right from a judgment of divorce. We reverse.

The parties were married in 1988. Two years later, they separated. Plaintiff filed a complaint for divorce on September 25, 1990. She stated in the complaint that she was pregnant with a child. The parties' only child, Shannon Lynn, was born on November 8, 1990, and was given her mother's maiden surname. Defendant, however, disagreed with plaintiff's decision to give their child the last name of Garling. Consequently, he objected to entry of a judgment of divorce until his daughter's surname was changed to Spiering. A hearing was held on August 9, 1991. Relying on the statutory language contained in MCL 333.2824; MSA 14.15(2824), the circuit court ruled in favor of defendant, stating that the surname of the child should be the surname that was being used by the parties during the marriage when the child was conceived and born.

Plaintiff's sole claim on appeal is that the circuit court erred in failing to consider the best interests of the minor child before it ordered that the child's name be changed from Shannon Lynn Garling to Shannon Lynn Spiering. We must agree. Nothing in the statutes of this state require that a minor child bear the father's surname or the surname used by the parties during the marriage.^[1] Furthermore, we find no legal basis for concluding that a child should be given the surname used by the parties during the marriage or that one of the parents has a superior right to determine the initial surname of the minor child. Accordingly, as with other parental disputes concerning children, we are convinced that adoption of the "best interest" test^[2] is the most rational way in which to resolve disputes between parents regarding a child's surname.

This Court faced a similar circumstance in Rappleye v Rappleye, 183 Mich. App. 396; 454 NW2d 231 (1990). The parties were divorced in 1984. The defendant mother took custody of their minor child, Adria, and relocated. Subsequently, she married William Gregory. Both the defendant and William Gregory called Adria "Adria Gregory" rather than "Adria Rappleye," which was the child's birth name. In 1988, the plaintiff father brought a motion seeking to enforce his visitation rights and to enjoin the defendant from using any surname for Adria other than Rappleye. Considering the best interest of the child, the trial court denied the plaintiff's motion, ruling that the child could use the surname of Gregory if she desired. On appeal, this Court upheld the trial court's decision:

[W]e cannot conclude on this record that the trial court abused its discretion by determining that it is in the minor child's best interest to allow her to continue using the name Gregory, if she so desires. .. . In the present case, the trial court's decision was clearly based on the facts and on what was right and equitable under the circumstances. [Id. at 399.]

Although admittedly this Court in Rappleye did not formally adopt the "best interest" test for the purpose of resolving these types of disputes, we clearly approved of its use by our trial courts. In light of the specific issue raised in this case, we now hold that parental disputes regarding a child's surname should be resolved in accordance with the best interests of the child. See also In re Marriage of Douglass, 205 Cal App 3d 1046; 252 Cal Rptr 839 (1988); Ribeiro v Monahan, 524 A2d 586 (RI, 1987); Lassiter-Geers v Reichenbach, 303 Md 88; 492 A2d 303 (1985); Cohan v Cunningham, 104 AD2d 716; 480 NYS2d 656 (1984). Jacobs v Jacobs, 309 NW2d 303 (Minn, 1981); In re Marriage of Schiffman, 28 Cal 3d 640; 169 Cal Rptr 918; 620 P2d 579 (1980). Accordingly, we reverse and remand for a hearing and determination consistent with this opinion.

Reversed and remanded.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.

[1] The language contained in MCL 333.2824(1); MSA 14.15(2824)(1), which the circuit court relied on to make its decision, merely states that the minor child's surname will be registered as "designated by the child's parents," it does not require that the surname of a child should be the surname of the parties during the marriage when the child was conceived and born.

[2] MCL 722.23; MSA 25.312(3).