IN RE PETITION OF KRUZEL FOR CHANGE OF NAME: KRUZEL, Appellant, v. PODELL, Circuit Judge, Respondent.
No. 367
Supreme Court of Wisconsin
March 6, 1975
67 Wis. 2d 138 | 226 N.W.2d 458
(Also reported in 226 N. W. 2d 458.)
For the appellant there were briefs by Joan F. Kessler, S. C. and Neubecker, Kessler & McKnight, all of Milwaukee, and oral argument by Joan F. Kessler.
A brief amicus curiae was filed by Ruth Bader Ginsburg, Melvin L. Wulf and Brenda Feigen Fasteau for the American Civil Liberties Union and by Marilyn Hall Patel and Sylvia Roberts for the National Organization for Women.
A brief amicus curiae was filed by Gretchen Twietmeyer Vetzner for the University of Wisconsin Women Law Students’ Association and the Olympia Brown League.
HEFFERNAN, J. This case presents the question of whether upon marriage a woman is required by law to assume the surname of her husband. We conclude that a woman upon marriage adopts the surname of her husband by thereafter customarily using that name, but no law requires that she do so. If she continues to use her antenuptial surname, her name is unchanged by the fact that marriage has occurred.
Kathleen Rose Harney married Joseph Michael Kruzel on July 31, 1971. She is an art teacher in the Milwaukee school system and was issued a teacher‘s certificate under her birth-given surname. She was employed by the Milwaukee school system under that name and exhibited works of art under the name Harney. She at all times used the name Harney and not Kruzel.
The Milwaukee school board insisted, however, for group insurance purposes, that Kathleen either use her husband‘s surname or “legally” change her surname to Harney.
Kathleen accordingly petitioned1 the circuit court for Milwaukee county for an order “changing” her surname
The trial judge relied on 57 Am. Jur. 2d, Name, p. 281, sec. 9, which states:
“It is well settled by common-law principles and immemorial custom that a woman upon marriage abandons her maiden name and assumes the husband‘s surname.”
The trial judge also reasoned that
No one testified in opposition to the name change. However, the trial judge stated that to permit Kathleen to bear the surname Harney and her husband the name Kruzel would be contrary to the best interests of any children that might thereafter be born to the marriage. He said that it should be agreed at the time of marriage that all members of the family should bear the same name. “If they cannot at that time agree, it would be better for them, any children they may have, and society in general that they do not enter into the marriage relationship.” He concluded that, upon marriage, her surname was changed to that of her husband, and the petition for change of name back to Harney was denied. The appeal is from the order dismissing the petition for change of name.
Although the petition brought by Kathleen was based upon her assumption that the marriage had compelled a change of name in law, the record shows, and counsel on appeal concedes, that the petitioner never used the surname of her husband but only her paternal surname. Accordingly, this case does not present the legal problems that might arise were a married woman, who had as-
While counsel for the petitioner and for the trial judge have ably briefed the court on numerous other related aspects of the law of name change, the linchpin of either argument is whether a name change occurs automatically upon marriage. The respondent has argued that the trial judge correctly concluded that the common law compelled a marital name change. The petitioner‘s counsel argued that the common law does not require or cause a change in a woman‘s surname upon marriage, but rather that such change of name will occur only with the acquiescence of the woman and the use by her of her husband‘s surname, i.e., the change of name is one of custom and not of law.
The trial court‘s legal conclusion was based solely on a quotation from American Jurisprudence, a most useful research tool but not a primary law source. It has no weight in itself as controlling authority, and is relevant only to the extent that it is supported by case authority of appellate courts or statutes that speak directly to the issue at hand.
There is, as counsel for respondent concedes, no Wisconsin statute that requires a married woman to take her husband‘s surname. The respondent argues that, because it is customary for a wife to take her husband‘s name on marriage, that custom has ripened into a rule of common law. While it is true that some customs of society have developed into rules of law, there is no evidence that in this jurisdiction the custom was ever accorded that effect. Our case law also is silent on this point.
Sixty years before Chapman, an English case, The King v. The Inhabitants of St. Faith‘s, Newton (1823), 3 Dowling & Ryland‘s Reports 348, held that a woman is not required to bear the surname of her husband. In an opinion supporting the court‘s mandate in St. Faith‘s, Judge BEST stated:
“It has been asserted in the argument, that a married woman cannot legally bear any other name than that which she has acquired in wedlock; but the fact is not so; a married woman may legally bear a different name from her husband, and very many living instances might be quoted in proof of the fact.” (P. 352)
19 Halsbury, Laws of England (3d ed.), p. 829, sec. 1350, is consistent with the holding in St. Faith‘s. Halsbury summarizes the law of England in this respect:
“When a woman on her marriage assumes, as she usually does in England . . . the surname of her husband in substitution for her father‘s name, it may be said that she acquires a new name by repute . . . . The change of name is in fact, rather than in law, a consequence of the marriage.”
It seems clear that Chapman2 erroneously states the common law; and as the quotation from Halsbury seems
It should be noted, moreover, that Chapman apparently is not accorded the effect of precedent in New York. In the recent case of Application of Sara Ryan Halligan (1974), 46 App. Div. 2d 170, 361 N. Y. Supp. 2d 458, a unanimous court held that Sara Ryan, married to one Halligan, had the right to be known as Sara Ryan and by no other name, despite the marriage. No reference was made to the Chapman Case.
It appears that the erroneous conclusion that by common law a married woman must assume her husband‘s surname had its genesis in the dicta of Chapman. It is interesting to note that the American Jurisprudence statement, supra, is based upon cases which either cite no authority or cite Chapman. In fact, one of the cases relied
Moreover, in Wisconsin, the attorney general, as the chief legal adviser to the state government and its administrative agencies, has repeatedly held that a woman, upon marriage, is not required by law to take her husband‘s surname.
A typical statement in respect to the legal name of a married woman appears in XIII Opinions of the Attorney General (1924), 632, 633, wherein it is stated:
“While a married woman generally takes and uses her husband‘s surname, there is nothing in the laws of this state that affirmatively requires it, although the general rule of such custom is recognized in the divorce laws. See sec. 2360n. Marriage is purely a civil contract under our laws (
sec. 2328, Stats. ), which does not change the identity of the parties to it.”
The attorney general made similar rulings in Report and Opinions of the Attorney General (1906), 270, and XII Opinions of the Attorney General (1923), 256. Additionally, the attorney general has ruled that the common-law right of a рerson to freely change a name applies in Wisconsin in the absence of fraud. XXXII Opinions of the Attorney General (1943), 203; XXXV Opinions of the Attorney General (1946), 178; XXXIV Opinions of the Attorney General (1945), 72; XXI Opinions of the Attorney General (1932), 528; and XX Opinions of the Attorney General (1931), 627.
While the opinions of the attorney general are not authoritative sources of the law, they are in some cases highly persuasive; and, of course, in cases where an attorney general‘s opinion has been followed by consistent
These opinions are cited, not because they are independent controlling authorities, but because they demonstrate that the custom practiced by most married women of assuming their husbands’ surnames has never been interpreted in Wisconsin as a rule of the common law.
The petitioner in this case contends that Lane v. Duchac, supra, is an authoritative holding of this court that the common law of Wisconsin has recognized that a wife was not required to assume her husband‘s name. In that case, it was argued that a mortgage was void because the maiden name, Barbara M. Rhyner appeared in the mortgage instead of the person‘s married name, Barbara Zentner. The court stated:
“It is not true that a fictitious payee and mortgagee is named in the note and mortgage. Barbara M. Rhyner is not a fictitious person, but a person in esse. True, since her marriage she is entitled to the name of her husband, Zentner, but we are aware of no law that will invalidate obligations and conveyances executed by and to her in her baptismal name, if she choose to give or take them in that form. Hence, were she the owner of the note and mortgage in suit, it would be no defense to her action upon them that they were executed to her by her baptismal name.” (P. 654)
We do not believe that this case holds, as a matter of common law, that a woman‘s name remains unchanged despite marriage. That was not the question presented to the court. The question was whether the identity of the person with different names was the same. The court did not hold directly on the question presented here. It would appear, however, had the court concluded that upon marriage it was obligatory for a woman to adopt her husband‘s surname, that there would have been some
We conclude, from these limited Wisconsin authorities, that the common law in Wisconsin has never ossified to the point of a holding that a wife is required to take her husband‘s name. The implicit assumption is to the contrary. The common law of England cited above has remained in effect in the state of Wisconsin until the present day.
The respondent, in effect, is asking us to change that common law to hold for the first time in Wisconsin that a wife is obliged to take the surname of her husband. We conclude, as did the Connecticut court in Custer v. Bonadies (1974), 30 Conn. Supp. 385, 318 Atl. 2d 639, that it would be inappropriate to make such change. The Connecticut court said:
“It hardly seems the time for the Connecticut courts to accept an outdated rule of common law requiring married women to adopt their spouse‘s surnames contrary to our English common-law heritage and to engraft that rule as an exception to the recognized right of a person to assume any name that he or she wishes to use.” (P. 641)
It is undoubtedly true that the tendency of a wife to take her husband‘s surname was spawned by the common-law theory of marriage. Under that theory, upon marriage, a man and a woman became one and that one was the husband. In view of that theory of marriage, it is perhaps surprising that the English common law, out of which grew the theory of coverture, did not require that the husband‘s surname be assumed in all cases by the wife. On the contrary, however, when the wife did assume the husband‘s name, it was a matter of custоm or practice and not of law.
During the period prior to the passage of women‘s rights statutes in the United States, the custom of a wife adopting her husband‘s surname grew, although not all women yielded to the custom. The custom of a married woman retaining her surname was clearly the practice in England prior to the time of the general adoption of the coverture theory, but with the growth of that common-law theory and the denial of the right of married women to own property, there came the general practice of a wife assuming the husband‘s surname. 32 Md. L. Rev., supra, page 415, states:
“Seen in this light the abandonment of personal, individual surnames by married women becomes comprehensible, indeed almost inevitable, as a symbol of their identity with their husbands, and as a symbol of their lack of individual importance in society.”
Obviously, the conditions that led to the practice of having women adopt their husbands’ surnames no longer have their foundation in existing law. In Wisconsin law, since the passage of the Married Woman‘s Property Act, ch. 44 of the Laws of 1850, and of ch. 529, Laws of 1921, granting women equal rights, and the constitutional amendment permitting women to vote, married women have been emancipated from the common-law rules which held them, in effect, in bondage to their husbands and
The trial judge and his counsel argue, however, that certain laws enacted by the legislature recognize that it was the understanding of the legislature that a married woman in all cases was compelled by law to take the surname of her husband. Typical among these statutes are the laws relating to the names of persons licensed to practice a profession or special skill. Among these statutes is
It is argued from this that it was the legislature‘s assumption, and therefore the law, that in all cases a name was changed upon marriage or divorce. The statutes in question, however, do not so provide, and in accordance with the common law of this state, as frequently explained by the attorney general, a change of name results from marriage only if, in accordance with common-law principles, the surname of a married woman‘s husband is habitually used by her. In that event, when a change has taken effect by usage, a
We believe that
“247.20 Former name of wife. The court, upon granting a divorce in which alimony jurisdiction is terminated, may allow the wife to resume her maiden name or the name of a former deceased husband, or the name of a husband of a former marriage of which there are children in her custody, unless there are children of the current marriage as to whom the parental rights of the wife have not been terminated.”
That statute is applicable only if a married woman has, by usage, in fact adopted her husband‘s name. If she has, then her maiden name can be “resumed” upon divorce in accordance with the provisions of the statute. The statute merely recognizes that by marriage a wife may have, through usage, effected a common-law change in her name. It does not indicate that she was compelled to do so.
The same statute and its limited significance was specifically recognized in XIII Opinions of Attorney General (1924), 632, 633, which pointed out that the statute reсognized a situation where a name change had taken place, but that opinion also specifically held that the change of name was not required by marriage.
There are other laws of a similar nature scattered throughout the statutes. Each of those statutes has the
We conclude that the statutes of Wisconsin are consistent with the common law, which does not require a wife to assume her husband‘s surname and when the husband‘s surname was acquired, it was the result of usage and her holding out to the world that the surname is the same as the husband‘s.4
Since we conclude in this case that Kathleen Rose Harney was never compelled to change her name, nor did she ever in fact adopt the surname Kruzel by usage, her petition, although ostensibly brought under
Inasmuch as we conclude that a change in name was not involved in the instant case, we need not explore in depth the discretion that
We conclude, as did the attorney general in XXI Opinions of the Attorney General (1932), 528, 530, that the statutes merely affirm, and do not abrogate, the common law. As our licensing statutes demonstrate, the common law should be permitted to operate unless evidence is put forward to show that some fraud or deception is intended by a change of name or unless, under
The New York Intermediate Appellate Court, in Application of Sara Ryan Halligan, supra, dealt with a similar problem. In that case, Judge SIMONS, speaking for the court, stated that the trial court:
“. . . noting the confusion that would result if a husband and wife were known by different names, held that since petitioner had ‘failed to set forth any compelling reason for seeking a court-approved name change‘, the application must be denied. . . . We think denial of the application was an improvident exercise of the court‘s discretion.”
The New York statute provides that a name change shall be granted if the court shall determine that the petition is true and there is “no reasonable objection” to the change.
Under
The points raised by the trial judge in the instant case in objection to the change of name could well be valid under proper circumstances, but only if proof were adduced to support the conсlusions. The reasons given for the denial of the change of name are completely conclusory and without any evidence of their applicability to the situation before the court. While the discretion which may be exercised by a trial judge in refusing a change of name is limited, to the extent that it is properly used it must be based on the underpinnings of the facts of the case and upon reasonable proof. Unsupported generalizations do not constitute a cause shown to deny a change of name. Under the common-law standard, a showing of fraud or misrepresentation akin to fraud is necessary to deny a change of name.
Because the facts of this situation do not require it, and since the law of Wisconsin does not require that a husband and wife have a common surnаme, the constitutional question posed by the briefs amici curiae is not reached.
By the Court.—Order vacated, and cause remanded for further proceedings consistent with this opinion.
CONNOR T. HANSEN, J., concurs in the result.
ROBERT W. HANSEN, J. (dissenting). The petitioner-schoolteacher here came to court with a petition for change of name to assert her right to teach in the Milwaukee public schools under her maiden name, which was also her professional name as an artist. The sole reason she gave for such change of name being sought was the rule of the Milwaukee school board requiring that a married woman schoolteacher be listed by her married name on all school records. Since she did not comply with that rule, the petitioner had been denied inclusion in a family protection insurance program avail-
This very rule from the same school board came before this court for review over fifty years ago.1 Then the Milwaukee school board had dismissed, for violation of the rule, a teacher who had insisted upon her right to teach under her maiden name. This court set aside such dismissal, and ordered the teacher reinstated, maiden name and all. As to the application of the rule to the teacher dismissed, this court found the record “. . . barren of anything indicating any harm or damage actually done in the administration of the school affairs, to school discipline, or control . . . .”2 As to the petitioner here, the rule as clearly did not warrant the exclusion of the petitioner from the insurance program for married school tеachers, solely because she was listed under her maiden name. On its face, the rule has no relatedness to the proper administration of school affairs or classroom teaching, and is a rule beyond the authority of the school board to enact. Direct challenge to the rule would be by writ. At oral argument it was indicated that the rule has since been repealed on advice of the city attorney. Whether or not this has occurred, the rule being invalid, the right the petitioner sought to assert by change-of-name petition—to teach under her maiden name—was hers, without a change of name being required.
The rule aside, the right of a married woman schoolteacher to use her maiden name was assured in a far earlier holding of this court. Before the turn of the century, a marriеd woman used her maiden name in signing a note and real estate mortgage. The holder of the real estate, who had acquired it without actual knowledge of the mortgagor, brought the consequences of
“It is not true that a fictitious payee and mortgagee is named in the note and mortgage. Barbara M. Rhyner is not a fictitious person, but a person in esse. True, since her marriage she is entitled to the name of her husband, Zentner, but we are aware of no law that will invalidate obligations and conveyances executed by and to her in her baptismal name, if she choose to give or take them in that form. . . .” (Emphasis supplied.)5
The italicized portions of the Lane decision, in this writer‘s opinion, make clear that three conclusions as to the rights of married women in this state cannot be escaped or avoided:
(1) That a married woman in this state, as “a person in esse,” does not lose her right to use her maiden name.
(2) That a married woman in this state “is entitled to the name of her husband,” the legal name of the family unit.
(3) That a married woman in this state has the option to use either her married name or her maiden name, “if she choose to give or take them in that form.”
The writer would follow and apply here the Lane holdings, quoted above, finding them to be wine that has mellowed, not soured, over the passing years. While some may disagree with the public policy and rights then established, with the decision standing without judicial or legislative modification since 1889, the writer
“. . . a change of name results from marriage only if, in accordance with common law principles, the surname of a married woman‘s husband is habitually used by her. . . .” (Emphasis supplied.)
The new “habitual user” test replaces the options granted to married women under Lane. For now the majority opinion makes clear that a married woman in this state acquires her husband‘s surname only if, as and when it is “. . . the result of usage and her holding out to the world that the surname is the same as the husband‘s.” If she doesn‘t use it, she doesn‘t get it. If she blurs the situation by using both her maiden name and her married name, she will be hard put to qualify as an “habitual user” under the new test.
What does this new “habitual user” test do to the options granted to married women in this state by the Lane decision?
(1) It ends the right of a married woman in this state to use either her married name, or her maiden name, or both. For the “either-or” of Lane, it substitutes “one-or-the-other.” Since the petitioner here for a change of name never did “. . . in fact adopt the surname Kruzel [her husband‘s name] by usage, . . .” her petition, the majority holds, was not really for change of name but “. . . a request for judicial recognition that she had been correct in using her maiden surname in the past.” The majority presumably excepts and excuses her signature on the change-of-name petition, stating her name, the one she wanted changed, to be Kathleen Rose Kruzel. She could have one name or the other, but not both. But
(2) It finds unnecessary the existence of a legal name for the family unit, available to husband and wife, and prescribed for their children. Under the Lane holding the married woman‘s use of her maiden name did not bar or affect her right to also use her married name, the court there holding that she could use her maiden name and that, nonetheless, “since her marriage she is entitled to the name of her husband, Zentner.” However, now, under the majority‘s rule, if the wife is an “habitual user” of her maiden name, she does not acquire her husband‘s name. She is not entitled to use the name of her husband and their children. Folks may differ on what that family name ought be. By law and custom it certainly has been the surname of the husband.6 But the
In 1889, the year of the Lane decision, the Wisconsin legislature recognized the existence of a family name, created by the fact of marriage, in empowering courts in divorce judgments “. . . to change the name which the wife acquired by marriage to that by which she was known and called prior to entering into the contract of marriage.” (Emphasis supplied.)9 That statute, renumbered, now provides that the court in such divorce judgment “. . . may allow the wife to resume her maiden name or the name of a former deceased husband, or the name of a husband of a former marriage of which there are children in her custody, unless there are children of the current marriage as to whom the parental rights of the wife have not been terminated.” (Emphasis supplied.)10 The legislature thus recognizes the ex-
(3) It eliminatеs the married women‘s prerogative to change her mind. Under the Lane option a married woman in this state could, at her option, use either her maiden name or her married name. The right to use what the court then called her baptismal name was hers to exercise whenever “she choose to give or take it in that form.” Under the majority‘s “habitual user” test, it is only through usage that a married woman secures the right to use the family name, that of her husband. If there is “habitual use” of her married name, and only
The petitioner-schoolteacher here came to court seeking a change of name in order that she might teach her classes under her maiden name. The writer would affirm the trial court here and hold that the right she sought to secure was hers before she came to court. The majority vacates and remands, with directions to the trial court to enter an order that the petitioner never acquired her married name because she never was an “habitual user” of it. When she leaves the courtroom with that order she will have won only what was her right to do before she came to court. In the winning she will have lost for herself and others entitlement to the family name, the right to use either her maiden name or her married name or both, and the right to ever change her mind. The thought occurs that she might have been better off if she had never gone to that courthouse at all.
The writer is authorized to state that Mr. Justice BRUCE F. BEILFUSS and Mr. Justice LEO B. HANLEY join in this dissent.
Notes
“296.36 Changing names, court procedure. Any resident of this state, whether a minor or of full age, may upon petition to the circuit court or county court of the cоunty where he resides and upon filing a copy of the notice, with proof of the publication thereof, as required by
The New York court held that the default could be set aside because of insufficient notice, i. e., no person such as Verina Moore existed after marriage, only Verina Chapman. It therefore held there was no jurisdiction over the defendant. The case stands as an example of legal fabrication designed to effect a good result. Justice was done in the particular case, but it ought have no precedential value. It should be noted, moreover, that its holding, that a married woman can only sue or be sued in her married name, is directly contrary to Lane v. Duchac (1889), 73 Wis. 646, 41 N. W. 962. Id. at page 289.