Acevedo v. Burley
994 P.2d 389
Alaska
1999
Check Treatment

*1 true, analogy expect particularly exists where would union A close members by by employee grievances duty decided not arbi- victimized union breaches of in ad- are by hearing.7 In adjudications litiga- an administrative ministrative or in tration employees aggrieved cases have the tion such be entitled to have decisions employee’s to counsel. If an attor- of those forums set aside. But this may privately case, ney Representational be either selected or nor should be. fail- —who by employee’s union —in an supplied ad- ings adversary system in an can be redressed hearing duty ministrative breaches which by an action the victim between lose, employee the decision of causes the representative. is no need There to disturb is not set the administrative tribunal aside. origi- finality between decision against employee’s remedy is attor- parties. nal This is as true in as arbitration may ney employee and the obtain a full adjudication is administrative recovery. why I no the result see reason litigation. be different similar breach is where Since I believe that we should continue in the context arbitration. made of an finality, adhere to Alaska norms of arbitral dissent.

IV. today’s opinion can be said for is that

What

it is consistent with federal labor law. But governed by

this case is not federal labor system strengths One of the our

law. sovereignties

parallel federal and state is areas, are, states some free to do

things differently govern- than the federal Sometimes a method is better.8

ment. state ACEVEDO, Appellant, keeping aspect of our federal this v. justifica- system do not think is sufficient say tion that we will function a certain BURLEY, N/K/A way. way because it the federal Liberty, Appellee. case, I show have tried to that there are S-8079. No. duplicate good reasons not to federal law. law, Alaska Under labor arbitration deci- Supreme Alaska. Court sions have been at least as difficult to set Dec. adjudications as aside administrative and tri- Today’s changes al court decisions. decision

this and holds that in cases where a union is duty

guilty representing of a breach of breach

union member and the affected the result, arbitration

arbitration decision needed, according

must be set aside.' This majority, because interests of deci- finality way give

sional must to the interests

of union have been members who victimized

by duty. their If union’s breach of this were pressed impose uniformity good ordinary fails to exercise faith and care reluctance to judgment). be held liable for the suppression states where would risk of "ef- programs” quoting fective and creative Jus- See, Dist., e.g., Anchorage Romulus v. Sch. description tice Brandeis’s classic states (Alaska 1996); v. Bai Pederson-Szafran experimenta- laboratories of and economic social 1992). ly, 837 P.2d 124 Liebmann, tion Ice Co. v. from New State 262, 311, (1932) Stake, Reeves, U.S. 76 L.Ed. 747 example, 52 S.Ct. See for Inc. v. U.S. 429, 441, (Brandéis, J., (1980), dissenting). 100 S.Ct. 65 L.Ed.2d 244 Supreme where United States Court ex- *2 reregister

ed and asked Denise to Amanda under took no her name. When Denise action, requesting filed Gustavo a motion proper order that “Amanda’s name be used personally.” in all and circumstances opposed the She Denise motion. contended “is still Amanda Amanda’s name that, prac- a Denise Ardene Acevedo” but “as matter, prefers identify tical Amanda her- Burley self Amanda in order to use the same name as her mother with whom reply, she lives.” Gustavo contended objective a de facto of Denise’s was Amanda’s name. He also noted that Denise registered Amanda’s last as Liber- ty mileage program. supe- for an airline The rior court denied Gustavo’s motion without appeals stating reasons. Gustavo from the Acevedo, se, pro Bethel. Gustavo order of denial. Cooke, Hedland, Brennan, Christopher R. *3 situation, family strength nature of the the provisions not have been followed par of the tie the and each case. between child ent, any neglect misconduct or toward discuss, jurisdic- in other As we will eases by parent opposing the child the the generally support tions Gustavo’s contentions change, by the which the child parent may that a not custodial called.[13] customarily been following applicable child’s name without The court disagreed Presson with the change of name statutes and efforts to intermediate court’s conclusion that the trial effect a facto name de giving court in not weight erred the seven- enjoined. year-old child’s wishes: Marriage represents In re Presson6 The is the standard best interests of the many respects the these views. stage in but the child at this his presented were similar those here. The development necessarily an able parties’ mother was a custodial judge his of what best interests are since initially seven-year-old sought child.7 She neither his emotional nor his mental devel legal both a and a de facto opment complete.[14] are child’s surname to that of her new husband.8 requested injunction.9 The father The Presson upheld While the the trial agreed attempt judge’s mother not to order mother not to name, change. The trial court efforts to the child’s the court noted that change, ordering make a de terms of the order were broad. too The only and the child to use the child’s order to extend seemed appeal appel- name.10 On intermediate family. to informal situations within late court on reversed the basis the trial relationships There are which some “virtually ignored” court had the child’s testi- law capacity does not control— mony that he wanted to use the mother’s new to call him name a child asks others living name while with the mother and the playground is one It of them. ' visiting father’s name while father.11 extremely difficult such an to enforce order.... Supreme Court of Illinois reversed the reject- Although appreciate decision of It the intermediate court. we that the consis single important ed the mother’s contention the child tent use of a name is development, common-law his name with- the child’s emotional we will legal proceedings. entry out approve resort The court of an order which Thus, held that a a minor’s surname the circuit cannot enforce. only “shall prevent calling [the be allowed when the court finds cannot from mother] [by stepfather’s is in by the best interest of the her son his surname] any minor.”12 The court the circum- name or within described nickname room, living stances relevant to such a determination: own and no should be order 84(e). 4. Alaska R. Civ. P. 10. Id. 5. Id. 11. Id.

6. 102 Ill.2d Ill.Dec. 465 N.E.2d 85 (1984). 12. at Id. 80 Ill.Dec. 294.

7. Id. at 80 Ill.Dec. 294. 13. Id. Ill.Dec. at 294. Id. Id. Id. by enjoining private personal need all her from refer towards directed surname. ring by [that name other than of Denise or Amanda another to him a eonfines.[15] family Further, imply within the we do not intend to father] precluded seeking a Denise should be observations, the with these accordance pursuant legal change of Amanda’s surname the in- Supreme directed that Illinois Court 09.55.010and Civil Rule 84. AS junction pre- be narrowed any using vented the mother fur- REVERSED and REMANDED for “in the child’s other than proceedings opinion. ther consistent with this school, records, including medical or official applica- membership hospital records or EASTAUGH, Justice, FABE, with whom tions.” Justice, joins, dissenting. *4 Presson decision. agree with the Oth We the court holds that it was error Because that hold that custodial er authorities deny request permanent in- to Gustavo’s for making a de should junctive despite the absence of evi- name facto of a child’s include Brown request, supporting dence I dissent. Carroll;17 Young;18 Young v. Halloran v. v. Kostka;19 Griffiths.20,21 In and Interest of apply We the abuse of discretion reviewing the in the Presson and standard order denied accordance with above, injunction request.1 apply we conclude the Gustavo’s We this case law cited granted injunctive reviewing temporary prelim- and in trial court should have standard injunctions,2 in inary applied and have requiring that Amanda’s real name be reviewing restraining the orders.3 used in matters of record. But court 90, change would the the 15. Id. 80 Ill.Dec. 294. be in best interest of at child."). 16. Id. case, only contrary 21.We know of find Waller, unpersuasive. v. 495 So.2d Azzara 61, ("We (Tex.App.1984) 17. S.W.2d 63 hold 683 appellate (Fla.App.1986), the court affirmed 277 that it is not in the best interest children judgment which the of the trial court refused stepfather’s to use the for the mother allow the of eight-year-old name both to ”). change.... name without stepfather of child to that and to requiring encouraging the child 823, (De (Minn.App.1984) 824 18. 356 N.W.2d stepfather’s to use the surname. The court left change enjoined. "A name the matter to the child: "When her surname her, alienating jeopardizes [the father] risks and important becomes to she can decide this parent/child relationship. It risks confusion for leave Court to decisions issue for herself and this contrast, there no evidence to [the child]. In which it much more comfortable.” Id. with feels Presson, suggest change is that a name in the substantial at As the Illinois court did in 279. child].”). disagree [the of interests with rationale. this Carroll, 1. v. 903 7 See Carroll P.2d 582 n. (quot- (Tenn.App.1988) 19. 778 S.W.2d 456 ("We (Alaska 1995) apply an abuse of discretion 14) ("[A] ing § of 57 Am.Jur.2d Name equitable its standard to trial court’s use of child from to save the mother and power.”); North Kenai Peninsula Rd. Mainte- or embarrassment will not minor inconvenience Borough, Area v. Kenai Peninsula nance Serv. against objection. be authorized Where, father’s (Alaska 1993). however, the child’s substantial interests name, require the father’s where Maintenance, North Rd. See Kenai Peninsula justify a misconduct such as forfei- has been to ("This applies 850 P.2d at court abuse positively right, ture where his name is of his reviewing when an order discretion standard per- deleterious to the temporary injunction. granting a The same stan- mitted.”). applies reviewing denying a an order dard when (Citations omitted.)). injunction.” preliminary (Tex.App.1989) 20. 780 S.W.2d 900-901 Musarra, ("[Mother] unilaterally Pieper v. and 956 P.2d had no to extra- Cf. 1998) judicially change (“Pieper argues that the surname.” "Even [child’s] granting restraining petition in Musarra a order. case did involve a erred not, minor, superior court did not of a which does burden would We conclude that permanently enjoining in be on abuse its discretion [the mother] establish seeking “always” requiring motion an order she believed Amanda Gustavo filed a “proper name” be that the child’s use surname would cause Amanda papers that Den- used. His motion asserted anguish distress”; “mental and emotional Amanda as “Aman- ise had enrolled in school and that she believed it was Amanda’s best 1996; Burley” complied da had not “Burley” dealing interest use the name request that “proper Gustavo’s name” with friends and school. She denied “in all Acevedo be used documents intent to limit Gustavo’s or other visitation arranged presence”; in her and had airline parental rights. Liberty” August travel for “Amanda reply Gustavo filed memorandum requir- He asked the court enter an order affidavit, in which he swore Amanda had ing proper that “Amanda’s name be used him told “on numerous occasions ... that I personally.” all circumstances am her father and that her mother told proposed He order that would submitted her she didn’t have a father.” required Amanda “her tell explain summarily last name Acevedo denied Gus- only is to use she tavo’s motion. Acevedo”; only “proper name” An should not be unless documents; on all Acevedo and to correct justi- the movant establishes a state *5 any using a documents different name. injunctive fying pa- relief. Gustavo’s motion Although appears that Gustavo was pers entitling did not establish him to facts a permanent injunction, seeking a Gustavo’s permanent injunction. original His motion any supported by motion was not or affidavit papers contained no fact made averments (verified equivalent document motion They alleged under oath. facts that not were memorandum) demonstrating the absence opposi- confirmed in an affidavit. Denise’s Moreover, disputes. request fact not he did did tion not concede for an the facts needed hearing a or a trial on the he merits that injunction, and her did affidavit not set out present could additional evidence.4 demonstrating facts that enti- Gustavo was opposed at- Gustavo’s motion. Her reply opposi- tled to relief. Gustavo’s argued torney not attempted that Denise had affidavit, supported by was tion his short legally; Amanda’s name that allegations did contain factual that Amanda, seven, preferred then the name of justified entry injunction. would have of an Burley; prohibited that no statute or rule What facts had to Under be established? using from a last name other than today, considering the court’s view one”; “legal no that Gustavo had cited scope grants,5 apparently of the all supporting legal authority; and that Gustavo parent might that need be shown is that one alleged indicating using no facts that using a than “Acevedo” would be the child’s best inter- records, any “in including official ests. Denise stated an affidavit school, hospital medical records or mem- knowledge Amanda’s that her name was bership applications.”6 It concludes that the different from Denise’s had caused Amanda superior injunctive granted court should have difficulty personal dealing “some ... “requiring Amanda’s real name be school”; friends, playmates and that Denise used matters of record.”7 understood Amanda’s “last Acevedo”; any that Denise not taken The facts before the court derive superior “ha[d] steps name; change” reply Amanda’s last from Gustavo’s unsworn motion and remand, Pieper interfering with Musarra’s use 5. On the trial is to assets."). occupancy partnership’s making de of Amanda’s injunction requiring an issue -Amanda's real name be used in all matters of 65(a), (b). Although 4.See R. P. Alaska Civ. these Op. record. at 423. apply preliminary injunctions rules and tem- orders, porary restraining support- if insufficient Op. at 423. ing request perma- evidence is filed with a for a injunction hearing nent or trial should likewise be held. at 423. Id. request prepared ex- Nor am I to hold that a for and from unauthenticated memorandum injunction granted just an must be because including for evaluation form hibits a school there a deviation from the child’s itinerary for Burley” and airline “Amanda in “matters record.” Gustavo dem- Liberty.” Simply attaching those “Amanda why substantive onstrated no reason pages his was sufficient motion change was not in best interests. Amanda’s injunctive relief.8 facts establish authority supporting he no And cited his truth opposition did not concede the Denise’s injunction. appeal, demand for an he On any material fact assertions. of Gustavo’s argue, legal support, continues to with no unqualified right that he demand view, sufficiently my did not that Denise Amanda’s formal surname have entitled establish purposes all for on all occasions. Under injunction this court’s view him to an under circumstances, superior these court did controlling therefore conclude law. denying not abuse its discretion his re- its court did not abuse quest for relief. denying discretion in Gustavo’s motion. potentially disputes cases Such raise about Alternatively, should affirm because changed by whether a child’s name permanent should not be objection parent’s over the other disputes. fact there are relevant unresolved satisfying requirements without arguments poses change.10 Policy case and relevant Since this unresolved formal name support side on this each issue. We have that the disputes, fact would hold issues,11 rarely name-change considered denying mo- not err in Gustavo’s did previously have not issue. This resolved this tion. solely appeal turns on whether Gustavo dem- *6 produced permitting evidence he onstrated that was entitled to not, I he I relief. Because think did compelling persons to con- reasonable affirm the court’s denial his mo- clude a name was Amanda’s tion. genuine fact best interests. This raised a dispute dispute. material to the Was that

injunction today ruling issue? court’s

necessarily any question considers to be irrelevant unless

child’s best interests sought a formal name parent has name-change

change.9 was no There formal

petition here. prepared am not hold altogether interests are irrelevant grant injunction.

deciding whether Village recognized Copper long ability State v. Kaah Native Kluti Cf. Ctr., 1992) (single 831 affidavit among P.2d 1270 parent custody with to choose the innu- support filed in failed to establish involving merable alternative courses the child’s injunction). necessary issuance of factors for welfare, deny can see no rational reason right to a similar select 84; 9. See Alaska R. P. AS 09.55.010. Civ. comfortable.”). which the child will be more Weiner, generally “We 10. See H. Are Fami Merle 741 Lone v. Lone P.2d ly": Disputes Valuing 11.Cf. Wolf Over Wolf Associationalism (Alaska 1987) (rejecting appellant’s con- 1191-92 Surnames, Children’s 1761— N.C. L.Rev. presiding (1997). tention that over di- Marriage Schiffman, See re also In court— jurisdiction Cal.Rptr. vorce action—had minor’s 28 Cal.3d (1980) (Mosk, J., name). ("Since concurring) law notes a Gustavo that whether trial court Cooke, Bethel, Appellee. Heideman & grant should a child’s real name be used is issue of first MATTHEWS, Justice, Before Chief impression argues prece- He Alaska. FABE, EASTAUGH, COMPTON, and jurisdictions in- dent other confirms that BRYNER, Justices. junctive generally appropriate. OPINION appeal. filed no on But Denise brief attorney one-page stating filed a letter MATTHEWS, Justice. Chief participate she lacked resources for- question presented The is whether the tri- mally. attorney’s Her letter that a asserts enjoined a al court have divorced child, person, including adopt a “can and changing of the surname long abandon at will as it surname” following statutory change child without others, infringe rights does accordance with the standards. purposes.” “for The done fraudulent weight authority jurisdictions letter also indicates that Denise had divorced conclude that the statute should followed Burley Mike and reassumed her maiden sur- and that the mother should name, Liberty. informally name. changing the child’s agree parties The that Amanda’s sur- Liberty Gustavo Acevedo and Denise were gov- name is Acevedo. Alaska has statute child, They divorced in 1991. erning changes1 a civil rule which Acevedo, 1989. Denise born June procedure changes.2 sets for name out custody was of Amanda Gusta- awarded statute, “may Under the rights. vo visitation was reasonable unless finds be made the court sufficient provided that The divorce decree Denise reasons for the and also finds it con- use of her maid- could “continue or resume” public sistent with the interest.”3 Under name, Liberty. married en Mike 84(e) objects Civil Rule Burley in took 1993 and his surname. child, proposed the court only grant “shall if the registered grade Amanda for first the name Burley. object- the name to be in the in 1995 as Amanda finds 1. AS 3.AS 09.55.010. 09.55.010. 2. Alaska R. Civ. P. 84. child.”4 The desires of a To determine the best interest of interest of the enough express same” the-court should consider the ex child “old determining press par wishes child and both should also be considered ents, proposed requested change.5 the stated reasons for grant whether to change, age maturity, statutory and civil of name rule