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[U] In re Change of Name B.M.F.

Superior Court of Pennsylvania

August 23, 2013

IN RE: CHANGE OF NAME: B.M.F. APPEAL OF: D.C.F., FATHER, Appellant IN RE: CHANGE OF NAME: E.F.F. APPEAL OF: D.C.F., FATHER, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Order of October 10, 2012, in the Court of Common Pleas of York County, Civil Division at No. 2012-SU-003599-13 Appeal from the Order of October 10, 2012, in the Court of Common Pleas of York County, Civil Division at No. 2012-SU-003598-13

BEFORE: PANELLA, ALLEN and COLVILLE [*], JJ.

MEMORANDUM

COLVILLE, J.

Appellant Father brings these consolidated appeals from the order granting Appellee Mother's petitions to change the names of the parties' two sons. The parties were engaged at one time, but never married. The children were, at birth, given Father's last name. Mother petitioned to have the last names of, B.M.F., born in May, 2007, and E.F.F., born in July, 2008, changed to a hyphenated combination of her last name and Father's last name, i.e., E.-F. Father opposed the proposed changes, but testified at the hearing on the petitions that he would agree to use of "E." as an additional middle name for the children. The parties share legal custody of the children; Mother has primary physical custody.

A trial court must exercise discretion in the best interest of a child when reviewing a petition for change of name of a minor. In re Grimes, 609 A.2d 158, 161 (Pa. 1992). Further, in such a case, the petitioner bears the burden of establishing that the proposed change would be in the best interest of the child. Id. We review the trial court's decision for an abuse of discretion. Id. at 159 n.1. "An abuse of discretion is not a mere error in judgment but, rather, involves bias, ill will, partiality, prejudice, manifest unreasonableness, and/or misapplication of law." Commonwealth v. King, 990 A.2d 1172, 1180 (Pa. Super. 2010). A proper exercise of discretion conforms to the law and is based on the facts of record. Commonwealth v. West, 937 A.2d 516, 521 (Pa. Super. 2007).

Father challenges the trial court's ruling in several respects, including the sufficiency of the evidence advanced by Mother to carry her burden. Our review reveals that the trial court's decision was not based on facts of record and did not conform to the law; thus, we reverse.

In its opinion, the court stated:

Given that Father stated he is not opposed to the use of his [sic] last name, the Court will grant Mother's request. The Court finds that based on the evidence offered by Mother and Father that this will serve the best interest of the children. Both families appear to have a good relationship with the children and that [sic] they will not be adversely affected by the children assuming the last name as [E.-F.].

Trial Court Opinion, 10/10/12, at unnumbered 2.

In terms of the evidence Mother advanced to carry her burden of proof, the trial court noted:

Of concern to [Mother] is that the school records list the boys' name of [F.] and sometimes that causes confusion when she needs to be reached. She testified that she sometimes has to provide a birth certificate to verify that she is the mother of the children.

Id. at unnumbered 1.

The trial court's finding concerning difficulty in the children's school reaching Mother is not supported by the record. Mother's testimony on this matter was as follows:

At this point, I think it would be the best interest of the children to have the association with me. I'm the one that deals with all the schooling, medical, anything else associated with the children, and at this point to have it hyphenated to [E.-F.] would really be helpful in the best interest of them I think to have that association with me since I'm the one handling all that.

N.T., 10/03/12, at 5.

Mother later testified:
The reason I want it to be [E.-F.] is because when I get questioned if I am actually [B.]'s mother like I have had that with different associations, I have to prove that I'm actually his mother because we don't have the same last name, and if [E.] was a middle name, there would be no point to that. They would not see that. All they see is like right now it would be [B.F.]. So they asked me about that, well are you a [F.]? No, and then I have to do something, a birth certificate or get something, what is that called, notary showing just because we have different last names I am his mother.

Id. at 13.

Mother did not testify that the school had any problem reaching her when necessary; she only gave vague testimony about unspecified "associations" at which she has had to provide proof of her relationship to the children.

Further, the trial court's statement that the children would not be adversely affected by the name change implies that the burden was on Father to show some reason why the petitions should not be granted. As stated above, the burden was on Mother to show that the name change would be in the children's best interest. She provided only scant evidence of temporary inconvenience to her on an unspecified number of occasions.

Because the trial court's ruling was not supported by the evidence of record nor was it based on a proper application of law, we reverse the order granting the petitions.

Order reversed.


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