176 So. 3d 1224
Ala.2015Background
- Child born April 2010; mother listed child’s surname as Russell and refused to name the father on the birth certificate; father is undisputed biological parent.
- Parents divorced in January 2011; circuit court awarded mother custody, father visitation, ordered father to pay support, and directed the mother to add the father’s name to the child’s birth certificate; circuit court retained jurisdiction over custody matters.
- Father refused to sign birth-certificate paperwork he believed would leave the child’s legal surname as "Russell," and filed a petition in probate court to change the child’s name to "Lyvia Grace Russell-Fuqua."
- Mother objected; probate court after an ore tenus hearing concluded the name change was in the child’s best interest and ordered the surname changed; probate court referenced §26-11-3 (legitimation/name-change statute) and §12-13-1(b)(10).
- Mother appealed; Alabama Supreme Court raised subject-matter jurisdiction sua sponte and reviewed de novo.
Issues
| Issue | Plaintiff's Argument (Father) | Defendant's Argument (Mother) | Held |
|---|---|---|---|
| Whether probate court has jurisdiction under §12‑13‑1(b)(10) to change a child’s name when petition is filed by the parent | Father argued probate could order the name change (statute authorizes probate name changes) | Mother argued probate lacked jurisdiction over a dispute between parents affecting custody and a child’s name | Held: §12‑13‑1(b)(10) authorizes only a person to change his/her own name; it does not authorize one parent to change another person’s (a child’s) name in this context; probate lacked jurisdiction |
| Whether probate court had jurisdiction under §26‑11‑3 (legitimation statute) when no legitimation proceeding was filed | Father relied on §26‑11‑3 to argue probate may change a child’s name | Mother argued §26‑11‑3 applies only in legitimation proceedings and did not apply here | Held: §26‑11‑3 is tied to legitimation proceedings (name changes at time of or after legitimation); father did not pursue legitimation, so probate court lacked jurisdiction under §26‑11‑3 |
Key Cases Cited
- Ex parte Smith, 438 So.2d 766 (Ala. 1983) (subject‑matter jurisdiction cannot be waived and may be raised by the court sua sponte)
- Solomon v. Liberty Nat'l Life Ins. Co., 953 So.2d 1211 (Ala. 2006) (standard of review for jurisdictional questions)
- Blevins v. Hillwood Office Ctr. Owners' Ass'n, 51 So.3d 317 (Ala. 2010) (jurisdictional issues may be raised regardless of party consent)
- Clark v. Clark, 682 So.2d 1051 (Ala. Civ. App. 1996) (discussing probate vs. circuit court authority over minor’s name changes in context of custody)
- Johnson v. Hetzel, 100 So.3d 1056 (Ala. 2012) (failure to satisfy jurisdictional prerequisite renders judgment void)
- Ex parte Alabama Dep’t of Human Res., 999 So.2d 891 (Ala. 2008) (void judgments must be vacated and appeals dismissed)
Disposition: Probate court’s order vacated as void for lack of subject‑matter jurisdiction; appeal dismissed. The father may seek relief in the circuit court, which retained jurisdiction over custody matters.