In thе Matter of the Application of Audrey Davis SAXTON, mother and natural guardian of Robert Lynwood Dennis and Jessica Campbell Dennis, minors, to change their names to Robert Lynwood Saxton-Dennis and Jessica Campbell Saxton-Dennis
No. 50811
Supreme Court of Minnesota
Aug. 21, 1981
309 N.W.2d 298
4. Defendant‘s final contention is that her probationary term of 1 year in the workhouse should be decreased by the presentence jail time she served (18 days). Undеr
Affirmed.
Terrance J. Selb, Edina, for appellant.
Carlson Greiner & Law and H. Louise Olson, Minneapolis, for respondent.
This is an appeal from an order of the district court, Fourth Judicial District, denying Audrey Saxton‘s petition on behalf of her minor children to change their given surnames to a hyphenated surname consisting of their mother‘s maiden name and their father‘s surname. Four issues are presented: first, whether the trial court‘s reliance on our opinion in Robinson v. Hansel, 302 Minn. 34, 223 N.W.2d 138 (1974) to
The petitioner changed her surname from “Dennis,” her former husband‘s surname, to “Saxton,” her maiden name, in December of 1976. A year earlier, Audrey Saxton and Frederick Dennis were divorced in West Virginia. Having permanent custody of their two minor children, Robert Lynwood Dennis and Jessica Campbell Dennis, Saxton and the children moved to Minneapolis shortly after the divorce.
In April of 1979, Saxton petitioned on behalf of Robert, then nine-years-old, and Jessica, then seven-years-old, to change their surnames from “Dennis” to “Saxton-Dennis.” Dennis opposed the petition. At the hearing on June 8, 1979, Saxton appеared on behalf of herself and the children. Dennis, although not present, was represented by counsel.
Saxton and two expert witnesses, John Baudhuin1 and Dr. Seymour Gross,2 testified in favor of the name change.
In Saxton‘s words, the proposed surname was desirable for the children because it would “reflect their dual parentage and reflect the family unit, the Saxton fаmily unit that we have established here in Minnesota after four years.” Both Mr. Baudhuin and Dr. Gross agreed that the name change would be beneficial for the children as it would enhance their self-esteem. However, each found the children to be happy and socially wеll-adjusted, suffering no ill effects from bearing only their father‘s surname.
Although Jessica and Robert did not testify, their views of the proposed surname can be gleaned from the record. Dr. Gross testified that the impetus for changing their surnames came from Robert‘s observation of аnd questions about the two surnames, “Saxton” and “Dennis” on the family‘s mailbox. Family discussions, lasting over a period of two years followed, resulting in the filing of the application to change their surnames to “Saxton-Dennis.” Both children related to Dr. Gross that they earnestly desired the name change and were “excited” about the possibility of bearing a surname which combined both of their parents’ surnames.
Dennis strives to maintain a close relationship with his children, despite the distance between their respective homes. Letters and phonе calls are frequently and regularly exchanged; birthdays and holidays are remembered with gifts. In the summertime, Jessica and Robert visit their father for a month or longer.
Based on the foregoing evidence, the trial court denied the petition. This appeal followed.
We have previously considered the proper interpretation of
This case does present an oрportunity to elucidate our decision in Robinson. We first note that neither parent has a superior right to determine the initial surname their child shall bear. In re Marriage of Jacobs, 309 N.W.2d 303 (Minn. 1981); cf.
Saxton‘s second contention is that thе evidence was insufficient to support the trial court‘s determination. Careful review of the record convinces us that the trial court did not abuse its discretion by concluding the children‘s best interests were served by keeping their given surname. The evidence, however, wоuld also have supported a contrary finding.
The trial court refused to take testimony from the children, Robert, then nine-years-old, and Jessica, then seven-years-old. Its refusal was apparently based upon its conclusion that the children were neither sufficiently mature nor sufficiently independent of Saxton to make a “discreet decision” regarding their surname. Saxton assigns this ruling as error.
We agree with Saxton‘s contention that the trial court erred in refusing to take testimony from Robert and Jessica. In Robinson we stated: “There is no issue, however, that the welfare of the children must ultimately be the controlling consideration in any change of status.” Robinson v. Hansel, 302 Minn. 34, 35, 223 N.W.2d 138, 139, 140 (1974). Thus, the children‘s preferences are relevant to the determination. Hall v. Hall, 30 Md.App. 214, 351 A.2d 917 (1976); cf.
We are not persuaded by Ms. Saxton‘s numerous constitutional arguments. Her contentions all rest on the assumption that the paternal surname is given preference over the maternal surname in the initial naming of the child and in attempts to change the child‘s surname. A review of the applicable cases demonstrates that this assumption is ill-founded.
We have recognized that neither parent has a superior right to determine the initial surname оf their child. No preference is accorded to either the paternal or maternal surname. In re Marriage of Jacobs, 309 N.W.2d 303 (Minn.1981). When one parent seeks to change the surname of a child, the other parent has standing to object and the resolution of the dispute hinges on the best intеrests of the child. Robinson v. Hansel, 302 Minn. 34, 223 N.W.2d 138 (1974);
Finally, we note, as we stated in Robinson, “the time may well come when the child may cause an appropriate changе of surname as his or her voluntary act.” Robinson v. Hansel, 302 Minn. 34, 38, 223 N.W.2d 138, 141 (1974).
Affirmed.
WAHL, Justice (dissenting).
I must respectfully dissent. The application of the standard set out by this court in Robinson v. Hansel, 302 Minn. 34, 223 N.W.2d 138 (1974), for granting a change of a minor‘s surname to that of a stepfather over the objection of the natural father is inappropriаte where the change sought is to use the surnames of both natural parents to form the child‘s surname.
The policy considerations which led to the formulation of a standard requiring such a high burden of proof were (1) that the change in name might weaken the bond between the child and the noncustodial parent whose name the child bore, (2) that the parent‘s natural and appropriate desire was to have his children bear his name, and (3) that it was desirable for a child to know his parentage. Id. The same considerations do not support such a standard, however, when a parent seeks to change the child‘s surname so that no natural parent‘s name would be eliminated but both names would form the child‘s surname. The mother‘s interest in having her children bear and perpеtuate her surname should be recognized as coextensive with the father‘s interest, as are other parental rights and responsibilities, such as custody and support. See Minn.Stat. § 518.17 (1980). Nor is there reason to believe, on the record before us, that the love and affection Frederick Dennis has for his children or the concern and support he gives them would be diminished in any way if they bore his name along with that of their mother as they wish to do.
The Robinson standard imposes an undue burden on the petitioner when the proposed name changе would not eliminate the use of a natural parent‘s name but would add the name of the other natural parent. In this situation, instead of being required to show that the name change is necessary for the substantial welfare of the child, the peti-
I would reverse and remand fоr a determination of the best interests of Robert and Jessica in regard to the proposed name change. The testimony of the children should be received.
AMDAHL, Justice (dissenting).
I join in the dissent of Justice Wahl.