*1 engineering and construction plans successfully are feasible and can be
completed ... whether finances can [and] available”). remand, the made On wa- should
ter court allow Public Service
question witnesses and to introduce evi- feasibility about the economic
dence irrigation proposed project.
Blue River’s
VII. above, we con-
For the reasons stated proper
clude that Public Service was a diligence
ty appeal.
standing prosecute Because improperly excluded evi-
the water court identity
dence of the of Blue River’s share- feasibility of economic Blue
holders proposed irrigation project, we re-
River’s judgment and remand the matter
verse proceedings consistent with this further
opinion. HAMMAN, Petitioner,
John In and For
The COUNTY COURT JEFFERSON, OF State
COUNTY Linda and the Honorable Pal
Colorado thereof;
mieri, Judges Ar one of Hamman, known as K. now Arlene
lene Bolton, by through her next
K. mother, Mary Victoria Bol
friend and Bolton, ton; Mary Re Victoria
spondents.
No. 87SC14. Colorado,
Supreme Court of
En Banc.
April *2 Second, C.R.S. we
must decide whether county abused its discretion or juris- exceeded its granted diction when it for a minor request child at the of the custodial parent, parents when the divorced, were and the non-custodial was not notice or an opportunity to be heard. We conclude that county court did have jurisdiction under but that the was entitled to notice. We therefore conclude that the court erred in ordering requested by the custodial providing notice to the ent. We reverse the district court’s affirm- ance and remand with directions to the district court to remand to county proceedings for opin- consistent with this ion.
I. The respondent and the en- tered into a marriage common law in 1977. In the year, same a child was born of the Shade, Doyle, Klein, marriage; Frey, Otis Henry & child’s name was Arlene Frey, Greeley, petitioner. C. for Hamman. parents’ When the divorce de- cree was entered respondent Woodard, Gen., Duane Atty. Charles B. given custody was daughter. Howe, Deputy Gen., Chief Atty. Richard H. father was reasonable visitation Forman, Gen., Sol. Knaizer, Maurice First rights and support obligations. Sub- Gen., Atty. Denver, Asst. for respondents sequently, respondent remarried and Jefferson County Court and the Honorable began using her new husband’s surname of Linda Palmieri. Bolton. respondent filed a Sturniolo, Ruderman & Andrew G. Mar- petition1 in County pursu- Jefferson Court telon, Denver, respondents Arlene K. -102, ant to sections 13-15-101 and 6 C.R. Mary Bolton and V. Bolton. S. requesting a name for her daughter Hamman, Arlene eight who was VOLLACK, Justice. years old at the requested time. She petitioner, (the John Hamman fa- daughter’s name be to Arlene ther), petitioned this court for certiorari Bolton. review of the district court’s affirmance of On day the same was court’s order filed, was held in daughter to Hamman’s at the re- judge testimony elicited from quest granted of his ex-wife. We certiorari Mary both Bolton and Arlene Hamman. First, to address two issues. we must de- Mary gave following Bolton testimony: termine juris- whether the court has Q judge] Where her father? [the diction to rule on the name minor parents child of divorced under sec- A [Mary In Greeley. Bolton] caption friend, shows that mother and next MARYVICTORIABOL- actually filed "ARLENE KAYE TON.” daughter], by through HAMMAN [the her
Q
position
her father’s
II.
What is
change?
regard
her
first issue
address is whether the
court has
really
He
feel like he
wants
rule
doesn’t
petition requesting
to,
said then she
her
but she [Arlene]
child when the child’s
gets
it until she
older.
can’t
presents
divorced. The father
alternative
Q
opposed?
So
*3
arguments,
suggesting that
the
very
Right,
she
to
it
A
but
wants
do
jurisdiction
court cannot have
over a child’s
badly.
jurisdiction
name
because that
cre-
custody
sup-
Q Tell me
the
and
what
a
ates
conflict with either the Children’s
port
are.
situations
Code or Colorado’s
Dissolution
Uniform
of
He
custody
of her.
A
have full
Marriage
disagree.
Act. We
month,
of
a
pays
support
$145.00
weekend,
every
he
her
and
sees
A.
upon if
has the time.
depending
The father
that
the
contends
Q
knowledge
opposes
that he
So with
juvenile
or a
court
district court
it—
original jur
juvenile matters
exclusive
Right.
A
change petition,
name
based
isdiction
Q —you
going
ahead?
statutory
pa
the
on
definition
“residual
rights
portion
rental
and duties” and the
go
Right,
she
ahead
and
wants
provides:
Children’s Code3 which
the
it,
and do
too.
(1) Except
19-1-104. Jurisdiction.
as
granted
petition
for
The
law,
by
juvenile
provided
otherwise
hearing.
no-
at the
The
original juris-
court shall have exclusive
requirements of
by publication
tice
section
(e)
proceedings:
...
To termi-
diction
were met.2 The father did not
13-15-102
parent-child
legal
relationship,
nate the
petition
actual notice
or
receive
pa-
including termination
residual
daugh-
hearing. Hamman did
know his
duties, as defined in
rights
rental
and
changed until week
ter’s name had been
19-1-103(24);
...
him
her
or
later when Arlene told
that
two
added).
(1986) (emphasis
8B C.R.S.
had
to Bolton.
been
19-1-103(24) states:
Section
daugh-
Hamman learned that his
When
rights
responsi-
parental
“Residual
changed,
had been
he filed
ter’s surname
rights
responsi-
bilities” means those
24.
motion to intervene under C.R.C.P.
remaining
after
bilities
denied
The motion was
legal custody, guardianship of
na-
The father then filed
son,
in another
or
have been vested
both
prohibition
a writ of
under C.R.C.P.
ture of
institution,
including,
agency, or
person,
County
106(a)(4) in
District
Jefferson
respon-
to,
necessarily limited
but
Court,
had
asserting that the
right
consent
sibility
support, the
jurisdiction,
its
discre-
exceeded
abused its
adoption,
right to reasonable visi-
tion,
process rights.
and denied his due
court,
tation unless restricted
a written order
The district court entered
reli-
the child’s
to determine
affirming
County
orders of the
Court
“the
gious affiliation.
for the name
argues
(1986).
that
denying
Motion to Inter-
the Plaintiff’s
8B C.R.S.
Children’s Code
provisions
filed
for writ
The father
these two
vene.”
juve-
only the
court,
grant-
require the conclusion
and we
certiorari with
upon
jurisdiction
rule
nile court has
ed certiorari on two issues.
8B C.R.S.
extremely unlikely
19-1-101 to
§§
the father
It
through publica-
would
tion,
obtained notice
Greeley
publica-
lived in
because he
Transcript.
Golden
tion of the notice was
In re Marriage
Nguyen,
of a minor
dis-
child. We
684 P.2d
denied,
agree.
cert.
(Colo.App.1983),
469 U.S.
S.Ct.
this case. The father court erred III. requested change daugh- his mother’s granted certiorari to decide alsoWe providing ter’s surname without actual no- erred when it agree. tice to him. We granted for the the name mother, child, request at the A. providing parent, custodial a non-custodial has Whether parent. to the the non-custodial right in bearing an interest or a child’s his Colorado’s or her surname after the child’s vides: question impres of first are divorced is proceedings. 13-15-101. Petition — jurisdic sion Colorado. desiring Every person issue, tions which has addressed the how ef- may present a to that ever, recog “a has held that a affidavit, district, fect, verified nized in his or her child’s sur interest” *5 in county court superior, or Tubbs, 384, P.2d 387 name. In re 620 petitioner’s residence. The (Okla.1980). paternal has “The interest name, forth full shall set various terms-a natural been alluded desired, and a concise the new name right, right, primary a a or fundamental desired of the reason such statement right, right, a a time-honored common-law change. The order such court shall legal right.” protectible interest and even a made, spread upon change to omitted).7 (footnotes Id. at 386 form, proper in of the court records held, also of states has is that satisfied is, parent at agree, a non-custodial we proper, and not detri- change would be minimum, party pro- in an interested a a interests mental ceeding change the surname the child. person. 58, 60, Laks, Ariz.App. 540 25 Laks v. See added).6 (1973) (emphasis 6 C.R.S. 1277, (1975)(“[T]he a father has 1279 public provision requiring notice having in his child bear protectible vides: with parental surname in accordance custom, though the mother even the usual Publication 13-15-102. custody of the may have awarded notice such of name been
Public
34,
child.”);
Hansel, 302 Minn.
in
v.
least three times
a
Robinson
shall be
at
(“A
35-37,
138,
(1974)
140
N.W.2d
newspaper published
where
223
surname,
long-
so
a child no
residing
change in
person
twenty
such
is
obvi-
made,
father’s
is
er bears his
days after
order
concern to
natural
published
ously
in
is of inherent
newspaper
if no
is
standing to
he should have
published in
so that
county, such notice shall be
" life, liberty
property’
Id.
or
umbrella.”
der the
supra
6. See
note 4.
Tubbs,
288,
15.):
620 P.2d at
at
565 S.W.2d
recognized
jurisdictions
7. Most
which have
(Without specifying
it is classified
whether
387
parent
right
in
or interest' of the non-custodial
life,
property,
liberty,
non-custodial
or
specified
have not
use of
this
is
to be
child’s surname
said
ent’s interest in
life,
liberty,
property
falls under the
protection under
subject
of constitutional
See,
process
due
clause.
classifications of the
Equal Protection
Process and
both the Due
284,
280,
Johnson,
e.g.,
263 Ark.
565
Carroll
omitted).
(footnote
Clauses.”) Id.
(The
(1978)
non-custodial
S.W.2d
included un-
"protectible
is held
interest”
requires
Section 13-15-102
object,
but
sense a
is
a real
by publication
hearing. However,
after the
implica
having significant
status
societal
by publication
is not sufficient when
tions.”);
A.D.
Cunningham,
Cohan v.
parent
par
a non-custodial
is an interested
(1984)
716, 716,
2d
480 N.Y.S.2d
ty and the name and the address of the
recognized interest
(“[A] father has a
parent
readily
are known or
having
his surname ...
his child bear
[but]
Tubbs,
notice when Certainly under some circum- necessary minors. for the court to make the order minor’s best stances it could be determinations. 101, right. In order concluding parent rather than a constitutional has that a non-custodial In interest, parent who is an interested be a for a non-custodial party interest to such an we hold this right, or she is entitled person" to exercise this statutory right “other as an detrimentally to the name may to reasonable notice an interest that who has proceeding. by section 13—15— under affected
749
interests of
to retain
natural father’s
best
the minor child.
interest
Some
held
father
courts have
“the sole
We hold that the natural
name.
considera
in a
such as
tion when
contest a
an interest
surname
This no-
should be
child’s
interest.”
and must be
notice.
best
Schiff
640, 647,
Schiffman,
guaranteed by the Fourteenth man v.
28 Cal.3d
620
tice
579, 583,169
918,
Cal.Rptr.
(1980);
P.2d
922
to the United States Consti-
Amendment
Harris,
422,
1,
19,
424-26,
the Texas
In re
160
and Art.
Sec.
W.Va.
236
tution
426,
Constitution,
428
and as
S.E.2d
Other courts
much
[the
explicitly suggested
above],
if
additional factors
considera
quoted
as
tion, such as the
and interests
by
legislature.
motive
into the article
written
parent.
may
custodial
properly
A court
(citations omitted).
383
Id. at
consider “whether
mother seeks to
ad
Virginia used
highest court of
West
bringing
peti
vance her own interest in
reasoning
same
to arrive at the
the same
tion and whether the mother’s interest is
Harris,
236
in In re
160 W.Va.
result
child.”
also
best interest of the
(1977). A
426
child’s surname
S.E.2d
Omelson,
Ill.App.3d
Marriage
re
request
of the custodial
at
725, 729-31,
307, 311,
Ill.Dec.
N.E.
require-
parent;
publication by notice
appropri
2d
factors
Other
Virginia
met.
statute was
ment of the West
ruling
ate for consideration
on
The court held:
length of time
the name
are the
general
proce-
powers
our
over
[U]nder
surname,
minor child has
the im
used the
hold that
equity
in courts of
dure
requested
change on
pact of the
proceed
consider a
a court can
before
relationship and on the
mother-child
father-
there
petition for a
of name when
relationship, id.,
prefer
the child’s
living
notice must be
is a
actual
ence,
the non-custo
misconduct
father
given to the
if his whereabouts
justify a
dial
which would
diligence
known or with reasonable
change, make
the non-custodial
ascertained.
could be
Carroll,
“possibly
Brown v.
deleterious.”
424-26,
proceeding such as must be this and is in the determining what child’s factors ... as [the supports conclusion that interests our best explicitly written into the article was] parent is entitled rea- legislature.” to do notice. If desires sonable so, attend the party, an interested As requested testify to his views about notice that *7 parent is entitled reasonable properly change. cannot name court petition parent filed a custodial of the and the best interests assess change the child requesting for if the in- appropriate considerations other rea- Reasonable notice is notice children. parent is denied the terested notify to the non-custo- sonably calculated present be name opportunity to pending in a mean- parent of the action dial Harris, at 429. change hearing. 236 S.E.2d manner, the non- ingful time and so that hearing if parent can attend the conclusion, empha- custodial coming we In to this pro- participate wishes to in the he or she to a non-cus- size that we objection ceeding or voice to the necessarily power pre- to todial making objec- change by vent Rather, hold tions known. C. is entitled interested particu- Whether making wheth reasonable notice. the determination to reason- constitute facts before requested change is detrimen lar er the question for the notice is factual person,” able “the interests other tal to question The determination. lower court’s must take into consideration the court 13-15-102, (1973), change is the no- requested name Section C.R.S. of whether change statute, child is also a provision of the tice of the name in the best interests court, the trial for factual determination states: standard subject the abuse of discretion change Public notice of such of name of review. given shall be at least three times in a newspaper published county in the where court’s order and reverse the district person residing twenty such is to remand to the directions remand with made, days the order of the court proceedings consistent after is county court for opinion. newspaper published and if no in with this county, published in such notice shall be LOHR, J., part in and concurs newspaper in county such as the court MULLARKEY, J., part, dissents directs. and dissent. joins in this concurrence provision This statute contains no for no- LOHR, Justice, concurring anyone tice to be advance dissenting part: hearing on a for a of name. grant- Only after a name has been agree I with required, ed is notice and that notice is to on the name had to rule Therefore, accomplished by publication. be of a minor child divorced language is no in the I there basis 6 C.R.S. under section however, majority, support petitioner’s agree statute to conten- do not petitioner, a noncustodial tion that he was entitled to notice and an name-change entitled to notice of a concerning peti- opportunity to be heard respect to his minor child proceeding with of name of his minor child. provisions of sections 13-15-101 under the petitioner concedes that the Furthermore, -102, 6 C.R.S. express requirement contains no that no- is not constitu- hold that such notice would hearing to him on tice be hold required. I would therefore tionally peti- of name. The err in order- court did not however, argues, tioner that such a notice change requested by the ing the name implicit in section 13-15- mother, legal physical custody had who petitioner refers to the child, providing notice to the provides that of section 13-15-101 that petitioner. change to court shall order “[t]he [a name] 6 C.R.S. which Section is satisfied that made ... Colorado,1 changes governs name detri- would ... [be] vides: interests of mental to the desiring change his Every person contends that a court son.” petition to that ef- may present a such a determination without cannot make district, affidavit, fect, verified giving interested noncustodial an superior, or opportunity an notice of the petitioner’s residence. heard. petitioner’s full shall set forth the argument, ma- which the desired, and a concise the new name majority op. at appears accept, see jority for such desired statement the reason language of the ignores plain 748 n. such change. The court shall order require- no The statute contains statute. made, spread upon the to be *8 persons given to all ment that notice be form, proper of the court in records detrimentally af- might whose interests the court is satisfied that the change of name. When fected proper, and not detri- would be clear, a court must of a statute the interests of mental to E.g., as written. give to the statute effect son. ed, 1987, 6AC.R.S. is found the statute In the statute was amended to refer or court” rather than "the district district, superior, court.” As amend-
751
Hall,
law,
common
Co. v.
property
690
At
there is no
Trinity Universal Ins.
Rio,
Moreover,
227,
(Colo.1984).
name. Rio v.
230
to the use of a
P.2d
132
provision for
legislature’s
316,
959,
of a
inclusion
504
(Sup.Ct.
Misc.2d
N.Y.S.2d
960
change of
entry of
(at
law,
notice after
an order
1986)
proper
common
no one has a
it
name shows that
considered
ty right
personal
to a
name such that one
re-
to include a
question. Had it desired
keep
using it);
from
Petition
can
another
in advance of
quirement
for notice
Falcucci,
588,
200,
355 Pa.
A.2d
50
202
of
so
legislature
have done
hearing, the
could
(1947) (same). Although hereditary sur
provision. The
the text of the notice
customary,
names are
has nev
that custom
a re-
legislature
provide
chose
such
legal right
er amounted to
common law
therefore,
hold,
quirement.
would
of a father to
his children
bear
13-
nor section
neither section 13-15-101
Laks,
his surname. Laks v.
Ariz.App.
25
given requires that notice be
15-102
1277,
58,
(1975). Thus,
540 P.2d
1279
at
a court orders
noncustodial
before
minor
common law a
could
his
change for
minor child.
resorting
legal formality.
name without
petitioner argues that if the statute
Laks,
purposes
gia The interest of a name, while in his or her child’s important parent, is not of
certainly
constitutionally protected magnitude. Therefore, notice the lack of an actual SANT, Plaintiff-Appellee, John W. change statute in Colorado’s name vision process our con- not violate due under does the wisdom This is to affirm stitution. STEPHENS, Ella Trustee for Public requirements. notice It present of County, Garfield State no- policy requires sound
well be that Colorado, Defendant, given to a be- tice be noncustodial her child’s name is his or fore Roginski Elisabeth D. Edmund W. This, however, question best changed. is a Getzen, Defendants-Appellants. Indeed, legislature to address. left for in- contexts considerations myriad No. 85SA463. sug- name-change proceedings volved Colorado, Supreme Court peculiarly appro- gest subject that this is En Banc. forum, legislative all for the where priate April exposed, de- relevant considerations can be generally Rio v. and resolved. See bated
Rio, Misc.2d 504 N.Y.S.2d statutory or
(Sup.Ct.1986). Absent identity persons the issue must be made as to the 4. Some courts that have considered might detrimentally affected kind of consti whose interests held that father has some have tutionally protectible task, daunting in his child’s This will be legal standpoint, requiring from both a factual and the father Tubbs, accuracy name-change proceeding. be little In re there will assurance statutory (Okla.1980) (“The nothing interest com result. I find parental subject suggest legislature contem- prised bond is the scheme to protection plated the Due it. under both constitutional Clauses”); Equal Esck Process and Protection Williamson, (Tex.Ct. S.W.2d rich v. for his basis 6. The asserts no other (father name-change App.1972) has interest in order- erred in contention that the child, requir concerning his minor ing no occasion There is name. quantum under federal and state constitu quality and in this case to consider the tions). re- necessary support court’s of evidence quired determination under 13-15-101 adopted proper, 13-15-101 "the desired would be construction that in would seem to detrimental interests hearing in determination each case a son.” advance