*1 174 School, at Tolleson arrival Elementary
premises. Upon appellant’s check the alarm as custodian was to system. his first duty building an that carried out believe this activity We duty interests, and or advanced employer’s employer’s purpose or not the services. Whether therefore constitutes employment had been disarmed on day alarm already appellant’s system this did not know accident is not because dispositive, appellant check the for himself. into the system until building stepped Therefore, did sustain a we find that compensable injury appellant knee at a time when he sustained an to his employ- because injury and remand for were We reverse ment services being performed. benefits. an award of and remanded.
Reversed JJ., agree. Roaf, Crabtree et al. v. Nicholas FISHER Kara Kathleen HUFFMAN John CA 97-1493 976 S.W.2d of Arkansas Court Appeals Divisions I and IV delivered October Opinion *2 Smith, P.A., Smith, B. for & Tom appellants. Shaver by: Ford, Ford, M. Robert & by: appellee. Killough Huffman, minor, Kara Bird, Judge. Appellant Sam Huffman, as H. and Kathryn William parents, appellants minor, Huffman, a of the Person of Auston Guardians Jacob a decision of the Cross Court County Chancery appeal the name of from Kara’s Auston Huffinan to changed baby Jacob Fisher. The Auston father Nicholas baby John Fisher. We affirm the decision the chancellor. Kara Huffinan Nicholas Fisher had been (Nick) John involved in a when Kara became long-term relationship pregnant trial, Nick, senior, in 1995. Kara At testified a high-school her not to tell about the and said that he urged anyone pregnancy wanted her to have a secret Nick abortion. said teased her about fat and was when she refused to have an being abor- angry tion. Soon after Kara’s found out about parents pregnancy, Nick told his The Fishers then with the parents. sought meeting *3 Huffinans, who did not want Nick and Kara and the present, par- to, did, ents met without Nick and Kara. The Fishers offered and 18, 1996, assistin for the birth of the child. On paying May was born a six weeks in in Forrest and had premature hospital City a transferred to in Nick hospital Memphis. Although did the Nick’s last acknowledged paternity, give baby name. and Nick Kara went to to separately every day Memphis fall, see him. the Nick went to in Russellville. Nick college and Kara did not marry. 9, 1996, Arkansas,
On the State of Office of Child August Enforcement, benefits, as Kara’s Support assignee child-support answer, filed suit collect to child In his Nick acknowl- support. and, edged paternity by third-party complaint against appellants, asked the to court set an amount of child to appropriate support him, be to him reasonable paid by grant visitation establish a visitation, schedule of and to order specific that the child’s birth certificate be corrected to reflect name of the child to be Jacob Auston Fisher. After a the chancellor entered an order hearing, 19, 1997, on in which he found that May Nick was the child’s father and child set and visitation. The issue of support last reserved, 3, 1997, name was and on the chancellor issued a June letter in which he held there was a opinion reason compelling to last name Fisher change to and so ordered. A formal order that name be directing child’s was entered on changed 14, 1997. From that order comes this July appeal. the court erred finding that (1) argue
Appellants
the mother
that of
from
should
changed
surname
baby
father,
failed
the father having
to that of the
custodial
parent
in the best
show it would be
facts that
any compelling
present
carried since
he has
interests of
baby
the court in
birth;
rationale
the best interests
by
and (2)
adopted
Herman,
370,
and in
Upon are erro chancellor’s are not disturbed unless clearly findings they the evidence. neous or Stone clearly against preponderance Steed, 11, 923 A S.W.2d 282 (1996). finding App. when, it, erroneous there is evidence to clearly although left the definite court on entire evidence is with reviewing and firm had been committed. conviction that mistake Duck Poland, worth v. Ark. 785 S.W.2d (1990). At the Nick admitted that he was when he hearing upset found out that Kara that he have asked Kara was pregnant, may not to tell about the that he had she anyone pregnancy, suggested abortion, have an that he did not tell his about the parents until a of months before he born. He testified baby couple that he wanted the child his surname because grew up *4 with his dad’s name and he did not believe that he should be treated because his son was born out wedlock. differently just He also insisted that he wanted to child and all of the pay support medical be involved in the decisions to expenses, relating Jacob’s visitation, and do the that all upbringing, regular things fathers do. mother, Fisher, Nick’s testified that she was willing Janet
take action on Nick’s behalf the court ordered as as Nick any long was in When asked she wanted the name college. why baby’s Fisher, she said: changed Nick and he is his father comes from a very family. proud —
We’re all of who we are. This Nick always will proud baby son, will father and be his he will be Nick’s and we always always feel like his name should be Fisher. always Nick’s father awas Fisher and his grandfather was Fisher and we want this baby be a Fisher so that his children can be Fishers.
Mrs. Fisher also testified that Nick and his entire family adored and loved the that visited with him in their baby, they home other from every 10 a.m. to 6 Saturday that p.m. Jacob was considered a of their part family.
Nick’s father also testified that he offered to more of the pay of the birth and to start child expenses paying but the Huffinans had grandson, refused his offer. On cross- examination, Mr. Fisher said he wanted last name changed to Fisher because it was usual and for a child to have his customary father’s last name.
Kara testified that after the was born she had no baby rela- Nick, whatsoever with that there tionship was no way possible there would ever be one and she again, objected prolonged visitation while was so young.
On first appeal, appellants argue chancellor erred in surname finding should be because there changed was no evidence that it would be in compelling the best interest of the child. Arkansas Code Annotated section 20-18-401 (f) (Supp. 1997) provides:
(2) If the mother was not married at the time of either concep- birth, tion or birth or between conception the name of the father shall not be entered on the certificate of birth without an affidavit of paternity signed by mother and the person named as the father. The parents may give child any choose. they (3) In any case in which of a child paternity is determined aby court of competent jurisdiction, the name of the father and sur- name of the child shall be entered on the certificate of birth in accordance with the and order finding of the court. Herman, In Reavesv. 830 S.W.2d 860 (1992), in which the seventeen, were parents the father baby initially angered mother’s *5 pregnancy unwilling until sometime accept baby after its birth. The mother had her surname. Some given baby months later the father filed a for the establishment of petition to have the surname of paternity, surname, to baby changed division of the birth future medical expenses, and visitation. The expenses, support, chancellor refused to the surname of the child change to that of its affirmed, father. The biological Arkansas Court Supreme stating that there were no facts that showed it would be in the compelling best interest of the nine-month-old child to the surname change he had carried since birth. 127, Mathews v. 59 Ark. Oglesby, S.W.2d 684 App.
(1997), father had offered no financial support during was in pregnancy, arrears in child and did not show support, up for his first two visitations. We are not told the of the ages parents, but the father was able to $400-a-month car pay indi- payments, someone at least older cating than The high-school chancel- age. lor announced in the of the early case: presentation
It has been this Court’s
policy
the last name
change
that of the father
it
is,
unless is a situationwhere the child
let’s
old,
ten
say,
or elevenyears
been in schoolfor a number of years,
knows
everybody
that child by that last name. We’re talking
about an infant here. So in all likelihood the Court is
going
the last
change
name.
We held that the chancellor’s
considered
policy
only
age
child, that the “mechanical
of such a
application
policy precludes
consideration of the full
of factors inherent in
panoply
determin-
child,”
the best interest of a
ing
and that
the best inter-
“[W]hen
involved,
ests of the child are
the chancellor should make his or
her decision
basis,
on an individualized
not on the basis of a pre-
at
sumption.”
abortion; to Kara no financial assistance during gave appellee assistance, fact, and in ridi- no emotional gave pregnancy; appellee and Kara the about weight gain; culed during pregnancy kind of continue any relationship has not attempted appellee birth. his son’s with since name child is a matter in which of a
Changing
Henderson,
v.
broad discretion. McCullough
supra.
chancellor has
377,
Morrow,
220 Ark.
We have no
requiring
the facts
name of an infant. Under
here presented,
change
chil-
we
and
right
propriety
hold that the
of
of
question
is
the surname
their
one that rests
stepfather
dren’s use of
of
of the
In view of the natural and
the sound discretion
chancellor.
to have his children bear and
commendable desire
father
name, this
should be exercised with the
his
discretion
perpetuate
should not
sanctioned
change
caution and such use or
utmost
the children.
it
for the best interests of
unless
is
383,
at
at
More
in Mathews
247 S.W.2d
1018.
recently,
cited
said:
we
supra,
Oglesby,
McCullough,
supra,
the child’s surname
change
decision to
or not
[T]he
discretion,
of
should be “the
the chancellor’s informed
product
be in
to what
deemed to
the best interests
exercised in
response
stake,
of the child are at
of the child.” When
best interests
should look into the
circumstances of
peculiar
chancellor
child
each
and act as the welfare of the
appears
require.
case
Ark.
at
The also chancellor said it the “norm” was in Cross for County father; the child to have the surname of its and that “What is of to this court is that have a that importance surname he is Jacob most able to connect with one likely of his The parents. most of likelihood that is for to have surname happening of Fisher.”
The dissent states that “the real issue here is whether best interests will be served by his name to that of changing father, his or whether those interests will be better served by his mother’s name . .” . . We do It retaining not is true agree. that the determination of the child’s best interests the issue decide, chancellor had to but the issue on is whether we appeal believe the chancellor abused his discretion his by decision basing on that are erroneous or findings clearly clearly against pre of the ponderance determination, evidence. In that making we do not substitute our that of the judgment chancellor and retry the case no as if decision had been made below.
From his it is clear to us that the chancellor findings, considered the “full of factors inherent in panoply determining child,” the best of interests that has considered the carefully circumstances” of “peculiar this Mathews v. Oglesby, supra, and that he has at pondered ramifications his deci- length related to the that his conclusions are
sion. We believe rationally record, are not convinced that we evidence revealed by circumstances, are these we sim- erroneous. Under are they clearly in con- able to that chancellor abused discretion ply say his father. child’s surname should be cluding also that the best-interest rationale Appellants argue be clarified this court in Reavesand should by McCullough adopted chosen for child favor presumption adopt of this the child’s custodial position, they parent. Deremer, v. from Gubernat on and rely extensively quote N.J. an A.2d We identical rejected 856 (1995). request said, interests of the “When best Mathews supra, Oglesby, involved, make the chancellor should his or decision child are basis, of a on individualized not on the basis an presumption.” Affirmed. *8 Crabtree, and JJ.,
Jennings agree. Arey, Neal, Meads, and dissent. JJ., Margaret Meads, I am troubled Judge, dissenting. deeply the trial court’s decision in this not the affirmance of by only his I believe it is in the child’s best interests to because abil- surname but also because it subverts Kara Huffman’s unfairly child. The real issue here is whether best to name her ity Jacob’s father, his will be served his name that of by interests changing be or whether those interests will better served by retaining name, he held mother’s maiden which has now for twenty-nine months.1
Kara Huffman faced difficult circumstances when painfully Huffman, son, was she seventeen Auston born: was years Jacob old, school, unmarried, and with infant still high premature she had had an who eighteen- required hospitalization. Although became with the child’s father before she month preg- relationship nant, had her to abort the but not only encouraged pregnancy changing granted The trial order court stay petition appellant’s Jacob’s his birth certificate until the decision has been reviewed surname on appellate courts. had her as that also ridiculed she she knew larger, grew over. she had the nurture was love and relationship Fortunately, father, her mother and who welcomed the their fam- infant into birth, home. Four months after an ily’s sought appellee certificate, order to “correct” the birth the certifi- claiming Huffman, cate reflects the child’s name to be when Auston Jacob in fact the child’s “lawful” name is Auston Fisher. Kara Jacob “ this, in her N. has exhib- opposed stating response: Fisher] [John rudeness, ited and utter for the disregard contempt, parental rights of Kara .... Huffman The birth certificate was not erroneously name, entered child’s and lawful reflecting correct name is Auston Huffman.” Jacob
At the Kara testified it was her decision to hearing, use the last name Huffman on the birth certificate. As abstracted by Kara testified: appellants,
It my was decision to use the last name on the of Huffman birth certificate. raised in around going my family, my brothers sisters. He’s to be me going raised with his whole life, I and think it’s he has name. I’m important my going married, raising one him. Even when I I can get keep my name Huffman and he’ll same name I as me. don’t mind that. It’s for doing I think it’s in his best interests to keep Jacob. it Huffman. had careful Clearly, given her son’s best thought interests and their future. selflessness,
In remarkable contrast to Kara’s testified appellee that the main reason he wanted name on birth certifi- *9 cate to Fisher was because was how he changed with grew up, his father’s name. he admitted that Although were parents other, married to each he did think he should be treated dif- because he had child ferently merely out of wedlock. On cross- examination, appellee about other reasons he questioned any have might name. wanting As abstracted testified: appellants, appellee
I want the name from Huffman to changed Fisher because I grew married, with dad’s up my name. Unless she doesn’t her last get name’s I’m going change. alwaysgoing Fisher. As far as 184 home, think he would be I raised in the Huffinan
the child being different name. labeled with a better Fisher, Sr., testified, father, M. William Similarly, appellee’s abstract, as follows: according appellant’s at Fisher. When Nick is name should be I think my grandson’s kids are asks him if of his any play- games somebody baseball Huffinan,” it’s kind of awkward to them tells ing “Jacob . . . name instead of his father’s. he’s his mother’s why got explain because it would changed that his name should be is My feeling that the child have customary It’s usually be awkward for Nick. to everybody. name. It would be awkward to explain the father’s never come for the mother as to would up The question probably married to but she was never the child’s name were Fisher why the father. his child “would be better
Incredibly, appellee thought to think that a a different name.” It defies credulity labeled with named “Huffman” in the home of six members child raised family Moreover, it defies off with the name “Fisher.” would be better that Nick to consider the “awkwardness” sense of my compassion bears his mother’s sur- feel when he that his son explains might name, and the reason why. child, not the father or his
It is the best interests of
family,
interests of the child
our decision. When
best
that must guide
stake,
look into the
circum-
are at
the chancellor should
peculiar
the child
each case and act as the welfare of
stances of
appears
370,
Herman,
Ark.
The common law that unmarried recognized mothers obtained child, their birth to the fathers parental rights by giving while obtained their It that parental rights marriage. followed through unmarried possessed mothers than did greater parental rights fathers, fact, and in some commentators stated that putative fathers had no with their nonmarital children. rights regard it became Accordingly, for nonmarital children to customary their assume mother’s surname at rather birth than their father’s .... either custom nor the common law a recognized [N] father’s to have his right nonmarital children bear his surname. (Citations omitted.)
Id., Further, Nastos, at 286-87. in Daves v. 711 P.2d (Wash. the trial 1985), court entered an order surname a changing child born out of wedlock from the mother’s to the father’s sur- name, without any a name entering specific findings change was in the child’s best interests. On the trial court’s order appeal, was vacated and the case remanded for a to determine hearing whether child’s best interests would warrant such a making The court stated: change. surname,
A change so that a child no bears the name of longer a custodial parent, only is of inherent concern to the custo- is, sense, parent dial but in a real change status having signifi- cant societal implications. Once a surname has been selected for child, maternal, be it the paternal, or some combination surnames, child’s parent’s in the child’s should change granted when only change child’s best promotes interests.
Id., at 318.
In his order Fisher, name granting the chancel- lor reasoned: life,
With father being active in will know his surname is different from his father’s. Although this happens often, it is not the norm in this The locale. norm in locale this *11 as the father. Whether will havethe samesurname
that the child in this locale. that is the norm that is or right wrong, of as the announced is the same “policy” This reasoning virually Mathews, “It been this court’s to wit: has the chancellor in supra, it that of the father unless the last name to to change policy old, is, ten eleven been the child let’s or years where say, situation knows that child number of in school for a years, everybody reversed the chancellor in The court of that last name.” appeals Mathews, that mechanical of application “policy” finding of the child’s consideration took into account age precluded only in the best inter- of factors inherent determining the full panoply Here, focus on “the norm in this a child. the chancellor’s ests of with a of locale” is commensurate automatically assigning policy child his father’s surname. facts which make it
I do not believe there are compelling surname, and I do not believe it is in to change imperative con- best interests to do so. my significant opinion, has it are that it is Kara Huffman who custody Jacob, siderations caretaker, make and it is she who will is she who is his primary Moreover, as a result of for him as he decisions major grows up. it is who will deal with the decision of the judges, prevailing and he tries when his mother enrolls him school awkwardness as hers. I do not to understand his name is not same why are facts in this case than there were believe there more compelling Reaves, it was not wherein our court announced supreme supra, he had in the minor child’s best interests to reverse the chancellor and carried since birth. I would therefore name. restore the child’s birth a tie in this the trial
Because this court has reached vote affirmed. Ark. Ann. 16-12-113 court’s decision must be Code § seek a It would be instructive for 1994). appellants (Repl. Ct. R. 1- review this decision in our court. Ark. supreme Sup. 2(e)(i).
Neal JJ., agree. Arey,