Velasquez v. Chavez , 2019 UT App 185 ( 2019 )

2019 UT App 185THE UTAH COURT OF APPEALS
DARIO ARTHUR VELASQUEZ,
Appellant,
v.
STACY L. CHAVEZ,
Appellee.
Opinion
No. 20180451-CA
Filed November 15, 2019
Third District Court, Salt Lake Department
The Honorable Matthew Bates
The Honorable Patrick Corum
No. 154901302
Marsha M. Lang, Attorney for Appellant
Michael P. Studebaker, Attorney for Appellee
JUDGE DIANA HAGEN authored this Opinion, in which
JUDGES GREGORY K. ORME and DAVID N. MORTENSEN concurred.
HAGEN, Judge:
¶1 Dario Arthur Velasquez appeals the district court’s
decision to hyphenate the surname of his biological son (the
child). Velasquez argues that the court did not address the
six-factor test articulated in Hamby v. Jacobson, 769 P.2d 273 (Utah
Ct. App. 1989), for determining whether changing the child’s
surname from Chavez to Velasquez-Chavez was in the child’s
best interest. Because we conclude the district court properly
considered all the relevant factors and provided sufficient
findings to support its decision, we affirm.
Velasquez v. Chavez
BACKGROUND
¶2 Velasquez and Stacy L. Chavez were in a relationship and
living together when Chavez became pregnant with their child.
A few months into the pregnancy, Chavez ended the
relationship and moved in with a former boyfriend who was the
father of her daughter.
¶3 When Chavez gave birth to the child, she left the birth
certificate blank as to the child’s father and gave the child the
surname “Chavez.” A few weeks after the birth, Velasquez filed
a Verified Petition for Decree of Paternity (the petition). Relevant
to this appeal, Velasquez petitioned the court to change the
child’s surname to “Velasquez.”
¶4 At the trial on the petition, the parties were present and
stipulated to proffers of testimony before the court. Velasquez’s
attorney argued that the child’s surname should be “Velasquez”
because Velasquez believes that the child is confused as to who
his “real father” is because he calls both Velasquez and Chavez’s
significant other “daddy.” Velasquez’s attorney argued that the
child will be stigmatized and embarrassed to have his mother’s
surname because children at school “are very cruel” and will
conclude he is “illegitimate.” His attorney anticipated that a
hyphenated surname might be an option and expressed
concerns that the name “Velasquez will be dropped off” if the
child’s surname was changed to “Chavez-Velasquez.” There was
also concern that the child would just go by “Chavez” if the last
name was changed to “Velasquez-Chavez.” But Velasquez did
not “have any objection to Chavez being a middle name.”
Velasquez’s attorney argued that “for inheritance purposes, for
the idea of carrying on the last name of Velasquez, for the
heritage of his family, [the child] should have [Velasquez’s] last
name.” At this point, the district court asked Velasquez directly,
“[S]hare with me your heritage, where does your family come
from?” Velasquez responded that he and his mother are from
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Texas and that his father was born in Mexico but has spent most
of his life in Texas.
¶5 In response, Chavez’s attorney argued that Velasquez’s
arguments with respect to the child’s confusion, embarrassment,
and “stigmas in schools” were based on “a lot of speculation”
without any support. Chavez disagreed that the child would
suffer embarrassment or lack of identity without his father’s
surname. Chavez’s attorney proffered that the child shared
Velasquez’s middle name and that Chavez was “not opposed to
the offer of the child’s last name being Velasquez-dash-Chavez.”
Chavez’s attorney further explained that he had “spent a lot of
time researching and trying to find any sociological or
psychological literature” to make sure the child was not harmed
by a hyphenated surname. The court asked Chavez where her
family came from, and she responded that her family was from
Colorado and that she lived in Utah. The court commented that
“it is common in certain Latin cultures for a person’s last name
to be the father’s last name hyphenated with the mother’s last
name” and then asked if either family followed that tradition.
Velasquez and Chavez each responded, “No.”
¶6 Following the proffered testimony, the district court gave
its oral ruling, following the six-factor test articulated in Hamby
v. Jacobson, 769 P.2d 273 (Utah Ct. App. 1989), for determining
whether changing the child’s surname is in the child’s best
interest. The court concluded that it was in the child’s best
interest to have the surname Velasquez-Chavez to “make sure
that the child understands that he has two parents that don’t live
together but they’re both his parents.” The court also explained
that “although this isn’t common in the heritage of the two
families here, it is . . . very common in the heritage of many Latin
and Hispanic families, in Utah and outside of Utah . . . [and] it’s
very common in . . . other cultures in this community.”
¶7 Velasquez objected to the hyphenated last name. He
personally addressed the court, arguing that it had erroneously
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based its decision on “Latin countries and stuff,” despite the fact
that he and Chavez were both born in the United States and “the
ways here in America is [to use] one last name.” The court
clarified that it “mentioned that particular cultural tradition only
to demonstrate that [it] found little basis to find that a
hyphenated name is going to cause the child any embarrassment
simply because that is so prevalent in our community today,
regardless of where it comes from.”
¶8 Following the trial, the court entered findings of fact and
conclusions of law and ordered that the child’s surname be
changed to Velasquez-Chavez. Velasquez now appeals.
ISSUE AND STANDARD OF REVIEW
¶9 Velasquez contends the district court erred in
determining that it was in the child’s best interest to hyphenate
the child’s name to Velasquez-Chavez. “We review the trial
court’s findings under a clearly erroneous standard and will not
disturb those findings unless they are against the clear weight of
the evidence . . . .” Hamby v. Jacobson, 769 P.2d 273, 279 (Utah Ct.
App. 1989). But “when the evidence consists only of proffers to
the trial court, the appellate court is in as good a position to
review the proffer as was the trial court, as no assessment of
witness credibility occurred below.” Id. at 278 (cleaned up).
“Therefore, we review the facts and draw our own legal
conclusions therefrom,” id. (cleaned up), and will reverse only if
we “reach[] a definite and firm conviction that a mistake has
been made,” id. at 279.
ANALYSIS
¶10 This court has previously held that “the best interests of
the child 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). There are six factors that are
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relevant for determining the best interests of the child in this
regard:
1) the child’s preference in light of the child’s age
and experience, 2) the effect of a name change on
the development and preservation of the child’s
relationship with each parent, 3) the length of time
a child has used a name, 4) the difficulties,
harassment or embarrassment a child may
experience from bearing the present or proposed
name, 5) the possibility that a different name may
cause insecurity and lack of identity, and 6) the
motive or interests of the custodial parent.
Christensen v. Christensen, 941 P.2d 622, 624 (Utah Ct. App. 1997)
(cleaned up).
¶11 Velasquez argues that the district court “did not correctly
apply the [Hamby] factors in this matter in determining that the
[c]hild’s name should be hyphenated and not just Velasquez
after his father.” Velasquez asserts that the court improperly
“used its belief that the parties have a culture and heritage from
Latin or Central America because of the root of their surnames to
support its decision.” Essentially, Velasquez argues that there
are no facts apparent in the record to support the court’s
decision to hyphenate the child’s surname and appears to
challenge four of the Hamby factors: “the effect of a name change
on the development and preservation of the child’s relationship
with each parent”; “the difficulties, harassment or
embarrassment a child may experience from bearing the present
or proposed name”; “the possibility that a different name may
cause insecurity and lack of identity”; and “the motive or
interests of the custodial parent.” See id. (cleaned up). We
address each factor in turn.
¶12 We first address the district court’s findings related to
“the effect of a name change on the development and
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preservation of the child’s relationship with each parent.” Id.(cleaned up). The district court found that this was the most
“important factor” in this case. The court noted that the child
lives in “a blended family where the child has a mother and a
stepfather that the child lives with,” that “the child has a half
sibling” with the last name of the stepfather, and that the child
has visitation with Velasquez “outside of the home.” The court
explained that, under such circumstances, “the child’s last name
becomes somewhat important in helping the child to identify
[with] his heritage, who his parents are[,] and to understand the
difference between stepfather and natural father.” Thus, the
court determined that this factor weighed in favor of “making
sure . . . the child does have a last name that helps the child
identify with [Velasquez].” Based on these findings, we see no
error in the court’s determination that a blended family supports
a hyphenated surname, and Velasquez has not persuaded us
otherwise. 1
¶13 Next, we address whether the hyphenated surname will
result in “difficulties, harassment or embarrassment” to the
child. Id. (cleaned up). Velasquez argues that the child could
suffer “possible harassment by not being considered an
1. On appeal, Velasquez makes much of the fact that he is “the
only male heir in his family” and that the child, as his only issue,
“will be the only one who can carry on the surname Velasquez.”
Thirty years ago, this court firmly rejected relying on the
outdated notion “that a father has a protectible or primary
interest in having his children bear his surname.” Hamby v.
Jacobson, 769 P.2d 273, 276 (Utah Ct. App. 1989). As this court
recognized, “a paternal preference for a child’s surname is
improper, just as would be a preference for the maternal
surname.” Id. at 277. We fail to see how Velasquez’s own interest
in having the child carry on his family name bears on the child’s
best interest, which is the “paramount consideration in
determining whether a child’s name should be changed.” Id.
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American by bearing a hyphenated name in the manner of a
heritage and ethnicity that neither side of his family affiliates or
associates themselves with.” 2 In response to the court’s
questions, Chavez and Velasquez made clear that they do not
identify with Latin culture, and the court recognized that there
are many “blended families” and children “from various
backgrounds,” including those “who are of European ancestry,”
with hyphenated names, “regardless of where [the practice of
hyphenated names] comes from.” Velasquez does not challenge
this finding, only arguing that the court improperly based its
decision on its “belief that the parties have a culture and heritage
from Latin or Central America.” But the court took care to clarify
that it “mentioned [the Latin or Hispanic] cultural tradition only
to demonstrate that [it] found little basis to find that a
hyphenated name is going to cause the child any embarrassment
simply because [such a practice] is so prevalent in our
community today, regardless of where it comes from.” We
cannot say that the court’s determination was against the clear
weight of the evidence, nor can we say that we are left with a
firm and definite conviction that the court erred in weighing this
factor.
¶14 With respect to “insecurity or lack of identity,”
Christensen, 941 P.2d at 624, 626, the court again expressed the
“need to make sure that the child properly identifies with both
2. Velasquez insinuates that the prospect of a hyphenated
surname was generated by the court’s own misguided
assumptions about the parties’ ethnicities and cultural
backgrounds. But it was the parties themselves who identified a
hyphenated surname as an option. Velasquez’s attorney was the
first to broach the possibility of a hyphenated name in proffering
that Velasquez worried that the child might drop Velasquez and
use only Chavez if his surname was hyphenated. And Chavez’s
attorney proffered that Chavez was “not opposed to the offer of
the child’s last name being Velasquez-dash-Chavez.”
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parents and particularly, that he understands that [Velasquez] is
. . . his father.” Velasquez does not directly challenge this
finding, and instead argues that with a hyphenated name the
child “will likewise face many throughout his life who think he
is not a third-generation American but rather a Latin American,
which raises the possibility that it may cause insecurity and lack
of identity.” Velasquez did not provide any support for this
assertion below or on appeal and relies on mere speculation. We
therefore find no error in the court’s findings with respect to this
factor.
¶15 Finally, Velasquez argues that the court “overlooked” the
“exhibits and evidence indicating [Chavez’s] ulterior motives.”
In support of his argument, Velasquez points to Chavez’s
answer to his petition. But like the district court, we discern
nothing in Chavez’s answer that suggests an ulterior motive.
Velasquez also complains that, in proceeding by proffer, the
court deprived him of the opportunity to present evidence
relating to Chavez’s motive. But both parties agreed at the outset
to proceed by proffer. Nevertheless, after the court made its
ruling, Velasquez claimed that the record was insufficient for
purposes of appeal and asked for an evidentiary hearing. The
court denied the request, noting that it had “accepted the facts
[he] offered almost verbatim” and took issue only with “[his]
suggestion that there was maybe some ill motive on Ms.
Chavez’s part.” In fact, Velasquez never proffered any facts
relating to Chavez’s motives. Instead, his attorney merely
speculated that “[t]here seems to be some motive here that I
don’t know” and hoped to find one by asking Chavez “on the
stand . . . why in the world she wouldn’t want [the child] to have
the last name Velasquez.” The district court acted well within its
discretion in denying an evidentiary hearing to conduct such a
fishing expedition. Because Velasquez proffered no facts to
support his claim of an ulterior motive, the court properly
concluded that this factor did not bear on the best interest of the
child.
20180451-CA 8 2019 UT App 185Velasquez v. Chavez
¶16 In light of the district court’s findings with respect to the
four factors Velasquez challenges on appeal, we conclude the
district court did not err in determining that it was in the child’s
best interest to change his surname from Chavez to
Velasquez-Chavez.
CONCLUSION
¶17 The district court’s determination that it was in the child’s
best interest to change his surname to Velasquez-Chavez was
not against the clear weight of the evidence and does not leave
us with a firm and definite conviction that a mistake was made.
Accordingly, we affirm.
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