Bowers v. Burkhart , 2022 UT App 132 ( 2022 )

2022 UT App 132THE UTAH COURT OF APPEALS
RACHEL BOWERS,
Appellant,
v.
DUSTIN BURKHART,
Appellee.
Opinion
No. 20210276-CA
Filed November 25, 2022
Fourth District Court, Provo Department
The Honorable Robert A. Lund
No. 194403198
Emily Adams and Sara Pfrommer, Attorneys
for Appellant
Julie J. Nelson, Taylor Webb, and
Melissa A. Patten-Greene, Attorneys for Appellee
JUDGE RYAN D. TENNEY authored this Opinion, in which
JUDGES GREGORY K. ORME and MICHELE M. CHRISTIANSEN
FORSTER concurred.
TENNEY, Judge:
¶1 Rachel Bowers and Dustin Burkhart divorced before their
daughter (Daughter) was born. When Daughter was born, Bowers
gave her the surname Bowers. But Burkhart later moved to
change Daughter’s surname to Burkhart. After a hearing, the
district court granted Burkhart’s motion, finding that it was in
Daughter’s “best interest to change her last name to Burkhart.”
Bowers now challenges the court’s decision on appeal, contending
that it was “based on speculation and not on evidence.” We agree
and reverse.
Bowers v. Burkhart
BACKGROUND
¶2 Bowers and Burkhart married in September 2018.
Throughout their marriage, Bowers used her own surname and
did not use the surname Burkhart.
¶3 In July 2019, Bowers learned that she was pregnant. In
August 2019, Bowers and Burkhart separated, and in November
2019, they signed and submitted a stipulated divorce decree.
Although they both knew of Bowers’s pregnancy, they claimed in
the stipulation that they were “not expecting a child.” The divorce
was finalized in January 2020, and Daughter was born in February
2020. Burkhart was living out of state at the time and was not
present at Daughter’s birth, nor was he listed on Daughter’s birth
certificate. At Daughter’s birth, Bowers gave her the surname
Bowers.
¶4 Six months after Daughter’s birth, Burkhart filed a petition
for paternity. In his petition, Burkhart asserted that he had not met
Daughter because Bowers refused to communicate with him. He
also claimed that although he “signed all the divorce documents,”
Bowers was the one who completed them and he “did not
thoroughly review or understand what they said.” He further
claimed that he didn’t know why Bowers “erroneously filled out
the divorce documents stating that the parties ‘[were] not
expecting a child together.’” Finally, Burkhart requested that
Daughter’s surname be changed to Burkhart and that he be listed
as her father on her birth certificate.
¶5 In December 2020, the parties filed a stipulation to amend
their divorce decree and resolve Daughter’s paternity. But the
parties did not reach an agreement on Daughter’s name, so they
reserved that issue. Based on this stipulation, the district court
amended the divorce decree and resolved paternity. The court
gave Bowers sole physical custody of Daughter, established dates
for Burkhart to have supervised parent-time, and created a
visitation schedule for Burkhart that would start after he
completed a drug test, an anger management course, and a
20210276-CA 2 2022 UT App 132Bowers v. Burkhart
parenting course. The court also ordered Burkhart to pay child
support (including an arrearage of $5,053) and ordered that
Burkhart be listed on the birth certificate. The court reserved the
issue of Daughter’s surname and stated that either party could
“set a hearing” on that issue.
¶6 After the parties filed their stipulation, Burkhart moved to
change Daughter’s surname to Burkhart. 1 At the time, Daughter
was nine months old. In his motion, Burkhart alleged that Bowers
gave Daughter a different first name “than the parties had
previously discussed and agreed upon and name[d] the minor
child her maiden name” rather than Burkhart’s last name.
Burkhart explained that he “has no other minor children and feels
very strongly that the minor child should have his last name.”
Burkhart claimed that he “has fought very hard to establish and
create a relationship with the minor child and wants to have a
very long term close and loving bond with her.” And Burkhart
further argued that Daughter “should have his last name for
religious, genealogy, and family ties.”
¶7 Burkhart also noted that Bowers has four other children,
none of whom bear the surname Bowers. From this, Burkhart
argued that Bowers “is used to having a different last name [than]
her minor children.” Moreover, Burkhart contended that Bowers
“has resisted and delayed” his relationship with Daughter and
that he “worries that [Bowers] seeks to undermine or diminish the
importance of his role in [Daughter’s] life, including by refusing
to allow [Daughter] to have and use his last name.”
¶8 Burkhart did not include a declaration, an affidavit, or
other evidence with this motion. But the final page of the motion
included a heading titled “Authentication” under which appears
this sentence: “I declare under criminal penalty under the law of
Utah that the foregoing is true and correct.” There was then a
typed signature for Burkhart, with the explanation that his
1. This motion was filed as part of the divorce case, but the
paternity case and the divorce case were later consolidated.
20210276-CA 3 2022 UT App 132Bowers v. Burkhart
“signature [was] affixed by counsel with permission given via e-
mail.”
¶9 Bowers opposed Burkhart’s motion. In support of her
opposition, she attached her own sworn declaration in which she
explained the parties’ history. There, Bowers averred that
Burkhart told her during her pregnancy “that he hoped [she] had
a miscarriage and that it was a misfortune [she] was pregnant.”
She said that Burkhart “consistently reminded [her] that he did
not want the baby” and “declined [her] invitations to attend
doctor appointments.” But she did acknowledge that Burkhart
nevertheless “expressed a desire that [Daughter] have his last
name, Burkhart.”
¶10 Contrary to Burkhart’s assertion, Bowers averred that
Daughter was not mentioned in their stipulated divorce decree
because Burkhart “had repeatedly expressed his intention to have
nothing to do with the child.” Bowers also averred that although
Daughter was born in February, Burkhart “made no effort to
contact [Bowers] about [Daughter] or visit her until August 2020.”
Bowers said that Burkhart tried to visit in August but that she had
called the police because he arrived without warning at 11:00 p.m.
and Bowers was afraid of him.
¶11 Bowers also explained how Burkhart had behaved during
supervised parent-time. For example, she claimed that Burkhart
called Daughter a “boober,” a nickname that he used with
Bowers’s “other children during [their] marriage and [that] carries
a negative connotation.” She also stated that he held Daughter
“upside down for a period of time until she made noises
indicating she was uncomfortable.” Bowers claimed that Burkhart
had paid “zero” child support. Finally, in her memorandum
opposing Burkhart’s motion, Bowers contended that she was not
impeding Burkhart’s relationship with Daughter, but, rather, that
it was Burkhart’s “instability, anger issues, lack of parenting
skills, drug issues, and failure to exercise parent time” that was
impeding his relationship with Daughter.
20210276-CA 4 2022 UT App 132Bowers v. Burkhart
¶12 In his reply, Burkhart contended that he “called and texted
[Bowers] daily and then two to three times per week to talk to her
and ask her about [Daughter],” but that “[Bowers] never
responded.” Burkhart also denied that “he has ever had a drug
problem” or that he had behaved inappropriately around
Daughter during the supervised parent-time. Burkhart further
argued that it was in Daughter’s best interest to have his name
because, although he “does not know if [Bowers] will get married
again and/or change her name in the future,” “obviously his name
shall remain the same and a constant for the minor child.” And he
claimed that, given Bowers’s “clear resistance” to him, it was
“important that [Daughter] have his last name to help develop
and preserve” her “relationship with him.” Burkhart attached two
exhibits to his reply: (1) lab results showing that he had recently
tested negative for illegal drug use, and (2) a certificate showing
he completed an anger management course.
¶13 The court held a hearing on the motion. There, both parties
agreed that the relevant legal question was whether a name
change was in Daughter’s best interest. Both sides also suggested
that the court’s best interest analysis should be guided by the
factors outlined in Hamby v. Jacobson, under which a court may
consider (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”; and (5) “the
possibility that a different name may cause insecurity and lack of
identity.” 769 P.2d 273, 277 (Utah Ct. App. 1989).
¶14 Burkhart’s attorney emphasized that Burkhart “has been
begging through this entire period of time to get to know this
child, to be introduced to this child.” But Bowers’s attorney
reminded the court that Burkhart, as the movant, bore the burden
of proof. She also said that Bowers is a military veteran who
served for eleven years and has a bronze star and a purple heart,
that Bowers has a multi-generational military legacy, and that
20210276-CA 5 2022 UT App 132Bowers v. Burkhart
Bowers wanted Daughter to have her surname because she
believes that Daughter “will be proud of that name and the legacy
that survives that name.”
¶15 After argument, the court determined that it was in
Daughter’s “best interest to change her last name to Burkhart”
and thus granted Burkhart’s motion. In a written order, the court
started by explaining that it “heard conflicting representations
made by the parties regarding the history of this matter and
events in the past.” The court accordingly made “no findings in
regard to such because there is no evidence in the record to
support either parties’ representations.” And while it thanked
Bowers for her military service, it also found that her military
service was irrelevant to the question before it.
¶16 Turning to the Hamby factors, the court first found that
Daughter’s preference and the length of time that Daughter had
the Bowers surname were irrelevant because of Daughter’s young
age. The court then explained that “a key factor” in its analysis
was “the effect a name change could have on the development
and preservation of the child’s relationship with each parent.”
Regarding this factor, the court found that Bowers “has been the
primary caretaker of the minor child and the minor child’s
surname will not likely impact the development and preservation
of [Bowers’s] relationship with the minor child.” But the court
“conversely” found that giving Daughter Burkhart’s “surname
will likely encourage [Burkhart] and [Daughter’s] bond and
encourage [Burkhart] to participate, stay involved with
[Daughter], pay child support, and help raise [Daughter].”
¶17 The court next considered “whether there could be
difficulties, harassment, or embarrassment the minor child may
experience from bearing the present or proposed name.” The
court stated:
Whether there is a misogynistic bias, the Court
recognizes the cultural norm in the United States
and around the world that children bear the
20210276-CA 6 2022 UT App 132Bowers v. Burkhart
paternal surname. This fact is relevant here only so
far as the practice of giving the minor child their
father’s last name is the norm in this child’s family.
[Bowers] has given her other minor children their
fathers[’] last names and not doing so with this
minor child may cause difficulty, harassment
and/or embarrassment as to why she is the only
child not given her father’s last name in this family
because it raises the issue of illegitimacy. Therefore,
this factor cuts strongly in favor of [Burkhart].
The court thus found “the possibility that a different last name
may cause the minor child insecurity and lack of identity
compelling in this case.” It further found that Daughter “is more
likely to have a strong sense of security and identity of who she is
on both sides of her family if she is give[n] [Burkhart’s] last name
and lives full time with [Bowers].” And finally, the court found
that Bowers’s “motives or interests are contrary to her position
and actions regarding the naming of her other children.” From
this, the court expressed its “concern[ ] that her motive is just to
be contrarian.”
¶18 Based on these findings, the court concluded that Burkhart
“met his burden and it is in the minor child’s best interest to
change her last name to Burkhart.” Bowers now appeals that
decision.
ISSUE AND STANDARD OF REVIEW
¶19 Bowers argues that the court erred when it determined that
it was in Daughter’s best interest to change her surname to
Burkhart. “[A]scertaining the best interests of a child is a factual,
not a legal, determination.” Hamby v. Jacobson, 769 P.2d 273, 278
(Utah Ct. App. 1989). We accordingly review the district court’s
“findings under a clearly erroneous standard and will not disturb
those findings unless they are against the clear weight of the
20210276-CA 7 2022 UT App 132Bowers v. Burkhart
evidence, or if [we] otherwise reach[] a definite and firm
conviction that a mistake has been made.” Id. at 279. Importantly,
“when the evidence consists only of proffers to the [district]
court,” we are “in as good a position to review the proffer as was
the [district] court, as no assessment of witness credibility
occurred below. Therefore, we review the facts and draw our own
legal conclusions therefrom.” Id. at 278 (quotation simplified). 2
ANALYSIS
¶20 We begin our analysis by explaining the governing law,
namely the best interest analysis and the factors laid out in Hamby
2. As noted, we held in Hamby v. Jacobson, 769 P.2d 273, 278 (Utah
Ct. App. 1989), that the best interest determination in a contested
name-change dispute involves a “factual, not a legal,
determination,” and subsequent cases involving similar disputes
have applied the accompanying standard of review. See, e.g.,
Velasquez v. Chavez, 2019 UT App 185, ¶ 9, 455 P.3d 95; Christensen
v. Christensen, 941 P.2d 622, 624 (Utah Ct. App. 1997). Both parties
here have accordingly agreed that the question before us involves
a question of fact.
We note that in a recent decision, our supreme court
reconsidered the nature of a best interest determination (albeit as
applied to a different kind of decision). The court held that a best
interest determination does not involve “a pure finding of fact”
but instead involves a “‘fact-like’ mixed question subject to
deferential review.” In re E.R., 2021 UT 36, ¶¶ 17, 22, 496 P.3d 58.
The parties have not briefed the potential implications of this
apparent shift in the standard of review to this case. In any event,
we would reach the same conclusions under this modified
standard of review. As discussed below, we see insufficient
support for the factual components of the court’s ruling. And to
the extent that any of the analysis below is more appropriately
regarded as being legal in nature, our conclusions would be the
same.
20210276-CA 8 2022 UT App 132Bowers v. Burkhart
v. Jacobson, 769 P.2d 273 (Utah Ct. App. 1989). We then apply that
law to the case before us.
A. The Best Interest Analysis and the Hamby Factors
¶21 When a court considers whether a child’s name should be
changed, “the paramount consideration” is the best interest of the
child. Id. at 277. The best interest analysis presents a familiar
inquiry. For example, a court can terminate parental rights only
after determining that doing so is in the child’s best interest. See
In re Z.C.W., 2021 UT App 98, ¶ 10, 500 P.3d 94; see also Utah Code
Ann. § 80-4-104(12)(a) (LexisNexis Supp. 2022). Similarly, “in all
custody determinations, the district court’s primary focus must be
on the best interests of the child.” Pingree v. Pingree, 2015 UT App
302, ¶ 7, 365 P.3d 713 (quotation simplified); see also Utah Code
Ann. § 30-3-10(2) (LexisNexis 2019).
¶22 The best interest analysis commonly includes a
consideration of how best to promote continuity in the child’s life.
This is because “[c]hildren have an interest in permanency and
stability.” In re K.C., 2015 UT 92, ¶ 27, 362 P.3d 1248. Stability is
important because it “makes possible the psychological and
emotional security that underlies a child’s well-developed sense
of self-worth and self-confidence.” Elmer v. Elmer, 776 P.2d 599,
604 (Utah 1989).
¶23 The importance of stability perhaps arises most often in the
context of custody determinations, but it has some bearing on a
name-change determination too. To state the obvious: a person’s
name is a key component of his or her identity. Because of this,
when parents come to court and argue about whether a child’s
name should be changed, the court should recognize that
changing the child’s name may well create some instability for the
child. Beyond the identity implications, changing the child’s name
might also create practical instability, such as by setting the stage
for inadvertent confusion or mistakes in the child’s government,
education, or health records.
20210276-CA 9 2022 UT App 132Bowers v. Burkhart
¶24 In past cases, we have not explicitly stated which parent
bears the burden of proof in a contested name-change case. But
we have at least implicitly placed the burden on the parent who
is moving to change the child’s name. See, e.g., Christensen v.
Christensen, 941 P.2d 622, 626 (Utah Ct. App. 1997) (holding that it
was “incumbent upon the appellant,” who was the moving party,
“to go forward with the evidence and show that the name change
is in the best interest of the child” (quotation simplified)). In light
of the stability interest discussed above, we take this opportunity
to make explicit what has been implicit before: the parent who is
moving to change a child’s name bears the burden. And we
further emphasize here that this requires that parent to establish
that the name change is in the child’s best interest, as opposed to
simply establishing that the moving parent’s preferred name is a
good one on its own. See Velasquez v. Chavez, 2019 UT App 185,
¶ 16, 455 P.3d 95 (holding that the “district court did not err in
determining that it was in the child’s best interest to change his
surname” (emphasis added)).
¶25 Placing the burden on the parent requesting the change
fosters stability by ensuring that the child’s name will not change
without affirmative proof that the requested change is in the
child’s best interest. See Burden of proof, Black’s Law Dictionary
(11th ed. 2019) (defining “burden of proof” as a “party’s duty to
prove a disputed assertion or charge”). And placing the burden
on the parent seeking to change the child’s name is also consistent
with our legal norms, which typically place the burden on the
moving party. See Trapnell & Assocs., LLC v. Legacy Resorts, LLC,
2020 UT 44, ¶ 56, 469 P.3d 989 (“A motion implies a burden that a
party must meet to be awarded the relief it seeks. It contemplates
that a party will forward legal and factual support so the court
can evaluate whether it is entitled to what it moves to receive.”).
Indeed, we note that the courts of several states have explicitly
placed the burden on the moving parent in this very context for
similar reasons. See, e.g., Bowman v. Hutto, 269 So. 3d 596, 597 (Fla.
Dist. Ct. App. 2019) (per curiam) (“The proponent of the name
change carries the burden of proof, and conclusory assertions are
insufficient.”); Mazzone v. Miles, 532 S.E.2d 890, 893 (S.C. Ct. App.
20210276-CA 10 2022 UT App 132Bowers v. Burkhart
2000) (“The parent seeking to change the child’s surname has the
burden of proving that the change will further the child’s best
interests.”); Barabas v. Rogers, 868 S.W.2d 283, 285 (Tenn. Ct. App.
1993) (“Parties seeking to change a child’s surname bear the
burden . . . .”). 3
¶26 We have previously articulated a set of factors that are
designed to aid courts in determining whether a parent has
shown that a name change would be in the child’s best interest.
See Hamby, 769 P.2d at 277. As noted earlier, we suggested in
Hamby that courts may consider (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”; and
(5) “the possibility that a different name may cause insecurity and
lack of identity.” Id.¶27 But we also recognized that other factors “may be
relevant” and “that courts should apply only those factors present
in the particular circumstances of each case.” Id. We again express
this same sentiment. These factors are useful and should
commonly guide a court’s analysis, but the ultimate question is
whether the name change is in the child’s best interest. See id. A
court considering a motion to change a child’s name should
accordingly consider all relevant facts. See id. at 278. Depending
on the circumstances, this may mean that certain Hamby factors
are irrelevant, and it may also mean that certain factors not listed
in Hamby are relevant or even dispositive. As suggested by the
supreme court regarding another test in another context, we
conclude here that the Hamby factors “should be considered when
relevant, ignored when not, and given appropriate weight
3. At oral argument, Burkhart conceded that he bore the burden
on this motion.
20210276-CA 11 2022 UT App 132Bowers v. Burkhart
according to the circumstances.” State v. Fullerton, 2018 UT 49,
¶ 23, 428 P.3d 1052.
¶28 In short, the ultimate question is whether changing the
child’s name to the proposed name is in the child’s best interest.
See Hamby, 769 P.2d at 277. A court making that determination
must consider all legally relevant facts. See id. And the parent
requesting the name change bears the burden of proving that the
change itself is in the child’s best interest.
B. Sufficiency of the Evidence in this Case
¶29 Having laid out the legal framework, we turn to the district
court’s determination that it was in Daughter’s best interest to
have her surname changed to Burkhart. We first begin by
clarifying the universe of relevant facts. We then review the
court’s best interest determination.
1. Relevant Facts
¶30 Because the best interest analysis is a factual
determination, we must first determine what facts were
appropriate for the court to consider. Bowers argues that although
Burkhart’s motion was “authenticated,” it was unsupported “by
a declaration or affidavit or any other evidence.” Burkhart,
however, argues that his authenticated motion should be treated
as an affidavit under Pentecost v. Harward, 699 P.2d 696 (Utah
1985). 4
¶31 In Pentecost, our supreme court held that “[a] verified
pleading, made under oath and meeting the requirements for
affidavits established in Rule 56(e) of the Utah Rules of Civil
Procedure, can be considered the equivalent of an affidavit for
4. Although Burkhart included an “authentication” section with
his motion, he points to no rule or case indicating that courts
recognize such motions, let alone any rule or case establishing
what legal effect an “authenticated” motion is supposed to have.
20210276-CA 12 2022 UT App 132Bowers v. Burkhart
purposes of a motion for summary judgment.” Id. at 698
(emphasis added). But a motion is not a pleading. See Utah R. Civ.
P. 7 (grouping “Pleadings” and “Motions” separately). As a
result, we have some doubt about whether the process laid out in
Pentecost—which allows a “verified pleading” to “be considered
the equivalent of an affidavit,” 699 P.2d at 698—is actually
applicable here. Moreover, extending the Pentecost rule to
Burkhart’s particular motion may also be problematic from a
practical perspective. Burkhart’s motion made no effort to
distinguish between his purportedly authenticated facts and his
legal arguments, and the two often blended together. As a result,
it’s difficult to know which parts are supposed to be treated as
affidavit-equivalent and which parts are instead supposed to be
treated as legal argument.
¶32 But we ultimately need not resolve this here. This is so
because, even if we do consider Burkhart’s motion to be the
equivalent of an affidavit (and, thus, evidence), we are persuaded
that the court’s findings that were derived from it were “against
the clear weight of the evidence.” Hamby, 769 P.2d at 279.
2. District Court’s Findings
¶33 The district court considered four of the Hamby factors and
concluded that each of them weighed in favor of changing
Daughter’s surname to Burkhart. We address the court’s
assessment of each identified factor in turn. 5
a. Effect of Name Change on Parental Relationship
¶34 The court found that “a key factor” was “the effect a name
change could have on the development and preservation of the
child’s relationship with each parent.” The court then concluded
5. Bowers does not contest the district court’s determination that
Daughter’s young age makes both her preference and the length
of time she has used the surname Bowers irrelevant to this case.
We accordingly do not consider those factors.
20210276-CA 13 2022 UT App 132Bowers v. Burkhart
that because Bowers is the “primary caretaker,” the relationship
between Bowers and Daughter will not likely be impacted by
Daughter’s surname. Conversely, the court found that giving
Daughter the surname Burkhart would “encourage [Burkhart]
and [Daughter’s] bond and encourage [Burkhart] to participate,
stay involved with [Daughter], pay child support, and help raise
[Daughter].” The court accordingly found that it was in
Daughter’s best interest to have the surname Burkhart because it
would “help both parties be invested” and “involved in her life.”
¶35 But this finding was not supported by reference to any
particular evidence about Burkhart’s relationship with Daughter.
Rather, it seems to have been based on the court’s reasoning that
because Burkhart was the noncustodial parent, his relationship
with Daughter stood to benefit the most from sharing a surname
with Daughter. So viewed, we see two problems with this
determination.
¶36 First, the court’s reasoning effectively created a
presumption in favor of Burkhart because he’s the noncustodial
parent. But in Hamby, we were “unwilling to adopt a presumption
in favor of the choice of the custodial parent,” instead concluding
that the broader “best interests of the child test” essentially
accounts for the “custodial situation of the child” on a case-
specific basis. Hamby, 769 P.2d at 277. We likewise conclude here
that there should be no presumption in favor of the noncustodial
parent. Noncustodial parents could virtually always make the
argument that Burkhart makes and which was accepted by the
district court: that a child’s name should be used as some sort of
counterbalance for a lesser amount of custody, or, perhaps even
further, that the child’s name should be used to foster that
relationship and incentivize good parenting behavior moving
forward.
¶37 But we’re less convinced than the district court was that
the child’s name has much bearing on whether a parent and
the child will have a loving relationship. Here, for example,
Burkhart will be Daughter’s father with or without a shared
20210276-CA 14 2022 UT App 132Bowers v. Burkhart
name, and it’s his paternal relationship to her, not their
respective names, that should drive his love, care, and support for
her. As aptly recognized by the Oregon Court of Appeals in
another father-daughter case, the “development of a bond
between father and daughter will depend on the love and
devotion that father exhibits toward his daughter, not on whether
the child bears his name.” Doherty v. Wizner, 150 P.3d 456, 465 (Or.
Ct. App. 2006). And in any event, to the extent that sharing a name
with a child might somehow be said to improve a parent’s
relationship with that child, we see no reason why one parent
should be given a presumptive legal advantage in that respect
over the other.
¶38 To the extent that the district court’s ruling was intended
to use Daughter’s name as an incentive for good parenting
behavior by Burkhart moving forward, we thus regard that
approach as problematic. Once Daughter’s name was changed,
that change would now be a fait accompli. But at that point, there
would be no guarantee that Burkhart actually would engage in
good parenting as a result of the shared name, and even if he did,
his behavior could then regress at any time without depriving him
of that already-enshrined benefit. As far as incentives go, this one
is decidedly weak, as evidenced by the fact that our courts are
unfortunately and yet all-too-commonly confronted with cases in
which parents fail to fulfil their parental obligations despite
sharing a surname with their children.
¶39 We therefore agree with Bowers that “[n]aming privileges”
should not be “a carrot to be dangled in front of a [parent] to
encourage good behavior.” Burkhart has a legal obligation to
support Daughter because she’s his daughter. See Utah Code Ann.
§ 78B-12-105(1) (LexisNexis 2018) (“Every child is presumed to
be in need of the support of the child’s mother and father.
Every mother and father shall support their children.”). Burkhart
should pay his support obligations because he’s legally and
morally required to do so, not because a court previously gave
Daughter his surname. So too with all other obligations of good
parenting.
20210276-CA 15 2022 UT App 132Bowers v. Burkhart
¶40 Second, the district court also failed to cite any evidence to
support its finding that changing Daughter’s surname would
“encourage [Burkhart] to participate, stay involved with
[Daughter], pay child support, and help raise [Daughter].” And
our review of Burkhart’s motion reveals no such evidence either.
In his motion, Burkhart asserted that Bowers has “resisted and
delayed” his relationship with Daughter and that changing
Daughter’s surname to Burkhart would “preserve his role as co-
parent in her childhood and life.” But if Bowers is indeed
preventing Burkhart from spending time with Daughter,
Burkhart’s recourse is to exercise his rights to parent-time that are
provided in the amended divorce decree and, if necessary, to seek
aid on that front from the courts. Burkhart has never explained
why Daughter’s surname impacts that ability.
¶41 As for Burkhart’s other arguments about this factor, we
note that Burkhart argued below that no “harm [or] difficulties
will be incurred by ordering [Bowers] to amend [Daughter’s]
birth certificate to his last name.” But as explained above,
Burkhart was the parent attempting to change Daughter’s name,
so he bore the burden of proof, not Bowers. In other words, it
wasn’t incumbent on Bowers to establish that it would be good to
keep Daughter’s name as is; rather, it was incumbent on Burkhart
to establish that it was in Daughter’s best interest to have her
name changed.
¶42 On appeal, Burkhart points us to Velasquez v. Chavez, 2019
UT App 185, 455 P.3d 95, for the proposition that a child’s
surname is important for “developing bonds with the non-
custodial parent, particularly where the child lives in a blended
family.” But unlike Burkhart, the father in Velasquez presented
evidence to support his motion to change his child’s name.
Specifically, the Velasquez father presented evidence that his son
called his stepfather “daddy.” Id. ¶ 4. In light of this fact, the
district court then changed the child’s surname from the mother’s
surname to a hyphenated name that included both the father’s
and the mother’s surnames. Id. ¶ 8. On appeal, we affirmed that
name change, relying in part on the district court’s finding that
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the hyphenated name would help the child “understand the
difference between stepfather and natural father.” Id. ¶ 12
(quotation simplified). Conversely, Burkhart has not presented
evidence that Daughter is or will be confused about who her
biological father is without the name change.
¶43 Burkhart also points us to Christensen v. Christensen, 941
P.2d 622 (Utah Ct. App. 1997). In that case, the child bore her
noncustodial father’s surname, and the custodial mother was the
moving party. See id. at 623. The district court denied the mother’s
motion and ordered that the child continue to use her father’s
surname. See id. at 624. We affirmed on appeal, relying in part on
the district court’s finding that a name change could “negatively
impact” the father-child relationship because the father lived out
of state and the mother had interfered with his visitation. Id. at
625 (quotation simplified). But unlike Christensen, there was no
finding in this case that Bowers had done anything to actively
interfere with Burkhart’s relationship with Daughter, let alone
any particularized analysis from the court linking the decision to
change Daughter’s name to any such finding. Moreover, our
decision in Christensen was ultimately based on the mother’s
failure to present evidence that a name change was actually in her
child’s best interest. Id. at 626. Our decision today is likewise
based on the moving party’s failure to carry his burden.
¶44 In sum, “the record contains no evidence that use of
[Burkhart] would strengthen the father-child relationship.”
Hamby, 769 P.2d at 279. Instead, the court’s ruling on this factor
relied on an improper presumption and category-based
reasoning. The court’s finding that the name change would
strengthen Burkhart and Daughter’s relationship is thus clearly
erroneous. See id.b. Difficulties, Harassment, or Embarrassment
¶45 The court also considered “whether there could be
difficulties, harassment, or embarrassment” to Daughter from
bearing either surname. The court noted that it was a “norm” in
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Daughter’s family for children to bear the father’s surname
because Bowers’s other children bear their fathers’ surnames.
From this, the court surmised that Daughter may experience
“difficulty, harassment and/or embarrassment as to why she is the
only child not given her father’s last name in this family because
it raises the issue of illegitimacy.” The court accordingly found
that “this factor cuts strongly in favor of” Burkhart.
¶46 In Hamby, however, we noted that laws have “been
promulgated to eliminate legal distinctions between legitimate
and illegitimate children.” Id. at 277. As in Hamby, we have some
doubt about whether the specter of illegitimacy is a valid basis for
granting a name change in a case like this one. In the current age,
there are a variety of family arrangements that might result in
children having different surnames than their fathers, thus
reducing the danger of anyone drawing any such a conclusion.
Short of concluding that a child should always receive the father’s
surname to avoid the perceived stigma of illegitimacy—a
proposed rule that we essentially rejected in Hamby—we see no
basis for relying on this as a reason for a name change here.
¶47 Aside from the prospect of perceived illegitimacy,
Burkhart’s appeal to Hamby’s “difficulties, harassment, or
embarrassment” factor rests on the fact that Daughter’s siblings
have their own fathers’ surnames while Daughter does not. We
first note that, no matter what happens in this case, Daughter will
always have a different surname than her siblings, so there’s
always going to be some disconnect between her and her siblings
as far as surnames go. But if her name is changed to Burkhart, this
will now also mean that she no longer bears the surname of any
parent that she lives with. If anything, this might create a new
source of potential embarrassment or difficulty for her.
¶48 But more to the point of Burkhart’s particular argument,
Burkhart again presents no evidence establishing that Daughter
will actually suffer any difficulty, harassment, or embarrassment
because her siblings share their own fathers’ surnames while she
does not. The possibility that Daughter’s peers will take note of
20210276-CA 18 2022 UT App 132Bowers v. Burkhart
this comparative connection and be prompted to harass or
embarrass Daughter seems small. And again, we stress that while
Burkhart bore the burden of proof on this and the other factors,
his argument on this front seems based on speculation and
conjecture. It’s therefore lacking.
¶49 In short, we see no evidentiary support for the court’s
conclusion that leaving Daughter’s name as Bowers would
actually result in any difficulty, harassment, or embarrassment to
Daughter. As a result, we determine that the court’s conclusion
regarding this factor is clearly erroneous. See Christensen, 941 P.2d
at 626 (holding that a factor “cannot be relied on to support a
change of surnames” if “there was no evidence presented”
relevant to that factor).6
c. Insecurity or Lack of Identity
¶50 The court also found “the possibility that a different last
name may cause [Daughter] insecurity and lack of identity” to be
“compelling in this case.” But the court did not explain what
evidence supported this finding, instead simply supporting this
conclusion by opining that Daughter was “more likely to have a
strong sense of security and identity of who she is on both sides
of her family if she is give[n] [Burkhart’s] last name and lives full
time with [Bowers].”
¶51 The court’s explanation again seems to adopt a
presumption that a child should share the noncustodial parent’s
6. With its finding about the potential difficulties for Daughter,
the court “recognize[d] the cultural norm in the United States and
around the world that children bear the paternal surname.”
Although the court stated that this “cultural norm” was only
“relevant” because it also seems to be the norm in Daughter’s
family, we are troubled by the reference. We again remind courts
that “lip-service to the best interests of the child should not be
used as a subterfuge to nevertheless perpetuate the paternal
preference.” Hamby, 769 P.2d at 278.
20210276-CA 19 2022 UT App 132Bowers v. Burkhart
surname as a way of compensating for the noncustodial parent
having less parent-time. As previously explained, however, such
a presumption does not exist and is inconsistent with the best
interest analysis. And in this case, there is no evidence
establishing that it will cause Daughter any insecurity or lack of
identity if she has a different surname than her father. At most,
we note Burkhart’s vague assertion below that Daughter “should
have his last name for religious, genealogy, and family ties.”
Though somewhat unclear, this assertion appears to be a
roundabout way of again appealing to traditional norms under
which children were automatically given their father’s surname.
But as noted, we held in Hamby that the “best interests of the child
should not be used as a subterfuge to nevertheless perpetuate the
paternal preference.” 769 P.2d at 278.
¶52 In short, neither the court nor Burkhart have pointed to any
facts that are based on non-speculative grounds that would show
that Daughter would have increased insecurity or lack of identity
if she does not share Burkhart’s surname. We accordingly
conclude that the district court’s finding on this factor was
impermissibly based on “pure speculation at best.” Christensen,
941 P.2d at 626. Without any supporting evidence, we conclude
that it was clearly erroneous.
d. Bowers’s Motives
¶53 Finally, the court found that Bowers’s “motives or interests
are contrary to her position and actions regarding the naming of
her other children and [was] therefore concerned that her motive
is just to be contrarian.”
¶54 Although it is apparently true that Bowers’s other children
have their fathers’ surnames, this particular finding was
decidedly comparative—the district court purported to compare
Bowers’s motives when naming her other children with her
motives when naming Daughter. But there is no evidence from
which the court could properly assess this. Of note, there is
nothing in the record explaining why Bowers’s other children
20210276-CA 20 2022 UT App 132Bowers v. Burkhart
bore their fathers’ surnames, nor is there any place in the record
where Bowers was asked to explain the discrepancy with respect
to Daughter. As with the court’s assessment of the other factors,
there is accordingly no evidence to support this finding, so we
conclude that it was clearly erroneous. 7
7. Three additional things bear some mention here—one tied to
this case, and two offered as guidance for future cases that
consider the “motives” factor that we identified in Hamby.
First, there was some suggestion by Bowers’s counsel in the
hearing below that Bowers wanted Daughter to have her surname
so that Daughter could have a connection to a multi-generational
military legacy from Bowers’s family. But Bowers did not include
this in her declaration, nor did counsel formally proffer this. As a
result, there’s no evidentiary basis for finding that this was
actually her motive.
Second, the court’s focus on Bowers’s motive alone appears
to have been driven by our statement in Hamby that courts may
examine “the motive or interests of the custodial parent.” Hamby,
769 P.2d at 277; see also Christensen v. Christensen, 941 P.2d 622, 626
(Utah Ct. App. 1997) (“Lastly, the trial court addressed the
motives or interests of the custodial parent.”); Velasquez, 2019 UT
App 185, ¶ 15 (agreeing with the district court that there was no
evidence that the custodial parent had an “ulterior motive”).
Hamby drew this factor from an Illinois case, In re Marriage of
Omelson, 445 N.E.2d 951, 952 (Ill. App. Ct. 1983), wherein the
custodial mother moved to change her child’s name. See Hamby,
769 P.2d at 277. As part of its analysis, Omelson considered
“whether the mother seeks to advance her own interest in
bringing the petition.” 445 N.E.2d at 955. But in our view, Omelson
focused on the mother’s motives because she was the moving
party, not because she was the custodial parent. See id. (detailing
the mother’s behavior and concluding that “[s]uch machinations
serve to render suspect the mother’s motives in seeking a change
of name for [the child]”). Properly understood, we think it’s most
appropriately read for the proposition that a court should
(continued…)
20210276-CA 21 2022 UT App 132Bowers v. Burkhart
consider the motives and interests of the parent who is attempting
to change the child’s name. And this makes sense. While a child
will sometimes have the name of the custodial parent, a child will
sometimes have the name of the noncustodial parent. Since the
question at issue turns on the advisability of changing the child’s
name, it’s therefore unclear why this factor would turn on the
motives of the custodial parent. If anything, the most natural
starting place is to look at the motives of the parent who is asking
for the name change.
But even so, having considered the matter anew, we don’t
regard this factor as being limited in even this respect. The
ultimate question turns on the best interest of the child, and in
considering that, all relevant facts should be considered. Given
the broad nature of this inquiry, we now clarify that, to the extent
that parental motives are relevant, a court might start by
examining the motives of the moving parent (who is, after all, the
proponent of change). But in appropriate circumstances, a court
might also consider the motives of the non-moving parent too.
Finally, we note with approval decisions from some other
courts that have considered whether a parent has previously
spent time with the child, paid child support, or otherwise been
engaged in the child’s life. See, e.g., Cohee v. Cohee, 317 N.W.2d 381,
384 (Neb. 1982) (considering “[f]ailure to support the child” and
“[f]ailure to maintain contact with the child”); In re Newcomb, 472
N.E.2d 1142, 1145 (Ohio Ct. App. 1984) (stating that courts may
consider whether a parent “fails to support, abandons the child,
[or] is and has been indifferent to the child’s welfare”); Keegan v.
Gudahl, 525 N.W.2d 695, 699 (S.D. 1994) (stating that courts may
consider “failure to support the child” and “failure to maintain
contact with the child”).
To be clear, we explained above that it is inappropriate for
a court to use a child’s name as a tool for incentivizing good
parenting behavior moving forward. But to the extent that this
factor looks to the parent’s motives for making or opposing the
motion to change the child’s name, we acknowledge that a court
could appropriately consider a parent’s past behavior as an
(continued…)
20210276-CA 22 2022 UT App 132Bowers v. Burkhart
CONCLUSION
¶55 Burkhart bore the burden of establishing that it was in
Daughter’s best interest to have her name changed. While the
district court considered four of the Hamby factors, the court’s
finding on each factor was not supported by sufficient evidence.
We therefore conclude that there was insufficient evidence to
establish that Burkhart carried his burden of proving that the
name change was in Daughter’s best interest. We accordingly
reverse and remand for entry of an order consistent with this
opinion.
indicator of that parent’s motives at that time. To illustrate with
an example from just one side of a potential dispute: if a parent
has previously failed to be appropriately engaged in the child’s
life (such as by not participating in the child’s life or paying any
child support obligations), and yet that parent is now requesting
a name change, a court could regard the parent’s past indifference
as an indication that the name-change request is motivated by the
parent’s own self-interest, as opposed to the child’s best interest.
20210276-CA 23 2022 UT App 132