Williamson v. Sanders ( 1998 )

IN THE COURT OF APPEALS OF TENNESSE
EASTERN SECTION AT KNOXVILLE FILED
January 13, 1998
)
Cecil Crowson, Jr.
) KNOX JUVENILE C ourt Clerk
Appellate
STATE OF TENNESSEE )
DEPARTMENT OF HUMAN ) NO. 03A01-9705-JV-00184
SERVICES, )
JOSHUA A. WILLIAMSON, )
) HON. CAREY E. GARRETT
Petitioner/Appellee, ) JUDGE
)
v. )
)
CHRISTINA SANDERS, )
)
Respondent/Appellant ) AFFIRMED
Jean Brown Dyer, Lenoir City, for Appellant.
John R. Rosson, Jr., Knoxville, for Appellee.
OPINION
INMAN, Senior Judge
An Order of Legitimation of the child of Joshua Allen Williamson
and Christina Louise Sanders, born September 13, 1995 in West Germany, was
entered on May 21, 1996.
By order entered September 24, 1996, pursuant to a petition to modify
the Order of Legitimation, the Juvenile Court held it to be in the best interest of
the child, formerly known as Alexander Baldwin Sanders, “to carry the name
of his father . . . and hereafter to be known as Alexander Baldwin
Williamson.”
Mother appeals, insisting that the father failed to carry the burden of
proving that changing the surname of the child was in his bet interest. We
affirm, for the reasons following.
The objection of the mother to the change of the name of her son may be
simply stated. Alexander is in her custody and lives in her home. She has
another son who is illegitimate, and believes that it would not be appropriate
for Alexander to have a different surname from his mother and half-brother.
The father believes that his son should bear his surname so that the
family name may be carried on. He testified that he has established a bond
with his son, and that it is in the best interest of Alexander that he share his
father’s name. The guardian ad litem recommended the name change as being
in the best interest of Alexander; so did his paternal grandmother.
Mother argues that T.C.A. § 68-3-305(b)(1) provides that a child’s
surname shall be the surname of the mother when the mother was unmarried at
the time of conception or birth. But a succeeding statute, T.C.A. § 68-3-305(c),
provides that in any case where the paternity of a child is determined by a court
of competent jurisdiction, the name of the father and surname of the child shall
be entered on the birth certificate in accordance with the order of the Court.
The lack of clarity of the statutory scheme was alleviated by Barabas v.
Rogers, 868 S.W.2d 283 (Tenn. App. 1993), wherein we held:
“The courts should not change a child’s surname unless the change
promotes the child’s best interests. Halloran v. Kostka, 778 S.W.2d
454, 456 (Tenn. Ct. App. 1988); see also In re Marriage of
Schiffman, 169 Cal. Rptr. 918, 921, 620 P.2d 579, 582 (1980); In re
Cardinal, 611 A.2d at 517; Kristine C. Karnezis, Annotation, Rights
and Remedies of Parents Inter Se With Respect to the Name of Their
Children, 92 A.L.R. 3d 66 § 8.5 (Supp. 1992). Among the criteria for
determining whether changing a child’s surname will be in the
child’s best interests are: (1) the child’s preference, (2) the change’s
potential effect on the child’s relationship with each parent, (3) the
length of time the child has had its present surname, (4) the degree
of community respect associated with the present and proposed
surname, and (5) the difficulty, harassment, or embarrassment that
the child may experience from bearing either its present or its
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proposed surname. In re Saxton, 308 N.W.2d 298, 301 (Minn.
1981); Bobo v. Jewell, 528 N.E.2d at 185; Daves v. Nastros, 105
Wash.2d 24, 711 P.2d 314, 318 (1985). The parent seeking to
change the child’s surname has the burden of proving that the change
will further the child’s best interests. In re Petition of Schidlmeier,
344 Pa.Super. 562, 496 A.2d 1249, 1253 (1985); In re M.L.P., 621
S.W.2d 430, 431 (Tex. Ct. App. 1981).”
Our review of the findings of fact made by the trial court is de novo upon
the record of the trial court, accompanied by a presumption of the correctness
of the finding, unless the preponderance of the evidence is otherwise. T.C.A. §
50-6-225(e)(2). Stone v. City of McMinnville, 896 S.W.2d 548, 550 (Tenn.
1995). No finding of the child’s preference can be made in view of his age,
but the remaining criteria reasonably appear satisfied from the proof adduced at
trial. Alexander knows his father, who provides for him; a bond has developed
between them, he has been legitimated and would obviously suffer community
disrespect if he did not bear the surname of his father. We cannot find that the
evidence preponderates against the judgment, which is affirmed at the costs of
the appellant.
__________________________
William H. Inman, Senior Judge
CONCUR:
__________________________
Houston M. Goddard, Judge
__________________________
Herschel P. Franks, Judge
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