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MATTER MICHAEL RONALD MONTENEGRO (06/08/87)

submitted: June 8, 1987.

IN THE MATTER OF MICHAEL RONALD MONTENEGRO, JR. APPEAL OF MICHAEL RONALD MONTENEGRO, SR., MARY ANN TAGLIOLI


Appeal from the Order entered in the Court of Common Pleas of Philadelphia County, Civil Division, No. 1560 OCT TERM 1986.

COUNSEL

Timothy J. Savage, Philadelphia, for appellants.

Brad Cooper, Philadelphia, for participating party.

Cirillo, President Judge, and Tamilia and Watkins, JJ.

Author: Tamilia

[ 365 Pa. Super. Page 100]

Appellant in this case, Michael Ronald Montenegro, Sr., appeals from the Order of the lower court which denied his petition to amend the birth certificate of Michael Ronald Montenegro, Jr., a minor child.

The child in this case was born out of wedlock on July 10, 1978. Michael Ronald Montenegro, Sr., was designated on the birth certificate as father, and the child was given the name Michael Ronald Montenegro, Jr. In September of 1980, the appellee/mother married the appellant and together, they had a daughter, Carmala Montenegro, who currently resides with appellee/mother and Michael Montenegro, Jr. The children attend the same elementary school.

In 1985, after separating from appellee/wife, appellant questioned the paternity of the child and proved through blood tests that he was not, in fact, the biological father of Michael Ronald Montenegro, Jr. Appellant then motioned for vacation of support for the child; that motion was granted on July 21, 1985. On August 14, 1986, appellant filed a petition to amend the birth certificate requesting that the certificate be amended to delete appellant's name as father and also to change the surname of the child and

[ 365 Pa. Super. Page 101]

    substitute the surname of the natural mother therefor. Argument was heard before the lower court on January 5, 1987 (mistakenly entered as January 6, 1986 on the Order) and, on January 6, 1987, the court entered an Order striking from the certificate the name of Michael Ronald Montenegro, Sr., as father. (Slip Op., Zaleski, J., 3/6/87, p. 1.) On February 4, 1987, appellant filed this appeal.

We find the lower court properly determined it was without subject matter jurisdiction to order a change of name. Our legislature has decided "[t]he Court of Common Pleas of any county may by Order change the name of any person resident in the county." 54 Pa.C.S.A. ยง 702. The trial court, in its Opinion, said that it was not disputed that the minor child resides in the state of New Jersey. Thus the Court of Common Pleas of Philadelphia County was correct in ruling it was without power to order the change sought by the appellant.

Additionally, the trial court's determination that a change of name would not be in the child's best interest was appropriate. Recently, this Court said that the child's best interests unquestionably must control in a proceeding to change a minor child's surname. Petition of Schidlmeier by Koslof, 344 Pa. Super. 562, 496 A.2d 1249 ...


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