In rе the Name Change of John William RESNOVER, Appellant-Petitioner, and In re the Name Change of John Arthur Herron, Appellant-Petitioner.
No. 49A02-1205-MI-364.
Court of Appeals of Indiana.
Dec. 5, 2012.
979 N.E.2d 668
RILEY, Judge.
Crystal Francis, Tracy Pappas, Carrie Lynn, Indianapolis, IN, Attorneys for Appellants. Gregory F. Zoeller, Attorney General of Indiana, Thomas M. Fisher, Solicitor General of Indiana, Elizabeth A. Murphy, Indiana Bureau of Motor Vehicles, Indianapolis, IN, Attorneys for the State of Indiana as Amicus Curiae in Support of Neither Party.
In this case, Empire’s bodily injury liability limit was $5,000,000, so that would be Werner Transportation’s required UM/UIM liability coverage under Indiana law if it had not rejected such coverage. In order to reject UM/UIM coverage, the rejection must be in writing and specify:
(1) that the named insured is rejecting:
(A) the uninsured motorist coverage;
(B) the underinsured motorist coverage; or
(C) both the uninsured motorist coverage and the underinsured motorist coverage;
that would otherwise be provided under the policy; and
(2) the date on which the rejection is effective.
Id. Werner signed a form rejecting the full UM/UIM coverage under Werner Transportation’s Empire insurance policy each April before the policy period began on May of that year. Appеllee’s App. p. 14-20. He elected to maintain coverage in the amount of $75,000 instead of $5,000,000, and he signed, dated and returned the form, indicating the time at which the rejection of the full policy was to be effective. These rejections were explicit and in accordance with
1) secure[ ] the written waiver of coverage required under the statute and include[ ] the waiver within the policy prior to the commencement of coverage; or 2) if [the insurance company wants] to remove UM/UIM coverage during the policy’s term, it should [ ] propose[ ] a modification to such effect and offer[ ] to reduce the premium to reflect the removed coverage. In either case, it would be clear that the existence or nonexistence of UM/UIM coverage was a negotiated term of the policy.
Liberty Mut. Fire Ins. Co. v. Beatty, 870 N.E.2d 546, 551 (Ind.Ct.App.2007). Here, the rejection of the UM/UIM coverage took place before the policy period began, allowing it to be considered a negotiated term of the policy, as required by Indiana case law.
We therefore find that the trial court did not err in granting summary judgment to Empire and finding that its UM/UIM coverage limit was $75,000.
Affirmed in part and reversed in part.
MATHIAS, J., and BARNES, J., concur.
Crystal Francis, Tracy Pappas, Carrie Lynn, Indianapolis, IN, Attorneys for Appellants.
OPINION
RILEY, Judge.
STATEMENT OF THE CASE
In this consolidated case, Appellant-Petitioner, William Resnover (Resnover) and Appellant-Petitioner, John Arthur Herron (Herron), appeal the trial court’s denial of their petitions to change their names.
We reverse and remand for further proceedings.
ISSUE
Resnover and Herron raise two issues on appeal, one of which we find dispositive and which we restate as: Whether the trial court erred when it required a valid driver’s license or valid state identification card as a prerequisite to grant the petition for name change pursuant to
FACTS AND PROCEDURAL HISTORY
Both appellants in this consolidated case cannot obtain a valid Indiana driver’s license due to discrepancies between the names commonly used in their everyday lives and the names listed on their birth certificates.
I. Resnover
Resnover was born on February 13, 1936 in Nashville, Tennessee, and is seventy-six years old. He was born to his mother, Johnnie Mae Cheatham, and his birth certificate lists his name as John Willie Cheatham. No father’s name is listed. Throughout his life, Resnover believed his name to be John William Resnover. In the past, state and federal agencies issued identification documents to him in that name, including an Indiana drivеr’s license, a social security card, and a pension.
On February 14, 2008, Resnover’s driver’s license expired. When he attempted to renew it some years later, the Bureau of Motor Vehicles (BMV) required him to present a birth certificate in compliance with State laws implementing federal real ID standards,
On October 21, 2011, Resnover filed a petition to change his name in accordance with
II. Herron
Herron was born on March 27, 1940 in Indianapolis, Indiana, and is seventy-two years old. His birth certificate lists his name as “Infant Male Payne.” (Herron’s App. p. 12). His parents names are John and Margaret Payne. However, according to Herron, his parents were never married and he believes Payne was his mother’s maiden name, while his father’s last name was Herron. Herron’s siblings carry the name Herron. Throughout his life, Herron has consistently used John Arthur Herron as his legal name. He attended
Herron has been diagnosed with liver cancer and his course of treatment includes radiation or chemotherapy. In 2011, he received a limited monthly income consisting of social security benefits in the amount of $776 and must rely on Medicaid to pay his treatment. Because Herron believed that he could not apply for Medicaid without a birth certificate that confirmed his name and because the application of certain public services requires a valid means of identification,1 Herron filed a petition for change of name on December 12, 2011. On March 5, 2012, the trial court conducted a hearing on Herron’s petition. On March 9, 2012, Herron filed a request to stay the ruling on his petition as well as a petition to establish a public record of time and place of birth pursuant to
Both Resnover and Herron appealed. On June 18, 2012, we consolidated their appeals. On August 2, 2012, the State of Indiana filed as Amicus Curiae in support of neither party.
Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Standard of Review
When the trial court enters findings sua sponte, the specific findings control only as to the issues they cover, while a general judgment standard applies to any issue upon which the court has not found. Brinkmann v. Brinkmann, 772 N.E.2d 441, 444 (Ind.Ct.App.2002). The specifiс findings will not be set aside unless they are clearly erroneous, and we will affirm the general judgment on any legal theory supported by the evidence. Hanson v. Spolnik, 685 N.E.2d 71, 76 (Ind.Ct.App.1997), trans. denied. A finding is clearly erroneous when there are no facts or inferences drawn therefrom to support it. Id. at 76-77. In reviewing the trial court’s findings, we neither reweigh the evidence nor judge the credibility of the witnesses. Id. at 77. Rather, we consider only the evidence and reasonable inferences drawn therefrom that support the findings. Id.
II. Petition for Change of Name
“The purpose of a name is to identify the person.” Schofield v. Jennings, 68 Ind. 232, 234 (1879). It has long been the standing law of our state that:
By the common law, ..., a full name consists of one Christian or given name, and one surname or patronymic. The two, using the Christian name first and the surname last, constitute the legal name of the person.... No person is bound to accept his patronymic as a surname, nor his Christian name as a given name, though the custom to do so is almost universal amongst English speaking people, who have inherited the
common law. A person may be known by any name in which he may contract, and in such name he may sue and be sued, and by such name may be criminally punished.
Id. at 234-35. Under common law, a person may lawfully change his or her name without resort to any legal proceedings where it does not interfere with the rights of others and is not done for a fraudulent purpose. Leone v. Commissioner, 933 N.E.2d 1244, 1252 (Ind.2010). A person effects a common-law change of name by usage or habit. Id. Therefore, the very nature of the name change means that it can be effected without court approval. Such a system includes both the advantages of great flexibility and the disadvantage of the difficulty in verifying a name change, especially when the change occurs outside the traditional times in life, such as adoрtion, marriage, or divorce. Id.
In 1852, the Legislature instituted a new procedure for “an orderly record of the change of name in order to avoid future confusion.” 2 R.S. 1852, Ch. VII §§ I-V (Gavin and Hords, eds., 1862 ed.). In analyzing whether this legislative enactment of a common law practice signaled the abrogation of the common law, our supreme court decided in In re Hauptly, 262 Ind. 150, 312 N.E.2d 857, 859 (1974) that Indiana courts must grant a name change where no evidence of fraud exists but this does not mean that the State must recognize an informal common law name change. Thus, only after a court grants this imprimatur to the name change must a state agency recognize it. Leone, 933 N.E.2d at 1253. In other words, “under the common law only a statutorily authorized court order gives legal sanction to a name change.” Id. at 1254.
While the courts have unique power to certify a name change, Hoosiers still may refer to themselves by any name they like. Id. They may not, however, demand that government agencies begin using their new names without a court order. Id. This dual structure recognizes the reality that names serve multiple purposes, both private and public. Id. As our supreme court pointed out in Leone:
The mоdern tendency toward use of government-issued identification in both private and public settings may shrink the field governed by the common law, but both common law and statutory processes have long coexisted with respect to names, as they do in other fields of law. Statutes obliging citizens to engage in some formality when they invoke government processes by applying for benefits or identification cards neither obliterate common law usage nor are they driven by them.
For both Resnover and Herron—and no doubt numerous others similarly situated—сommon law usage and Legislative enactment have reached a collision point once again. In 2010, the Indiana General Assembly issued Public Law 61 amending the procedures to effect a legal name change. The amendment imposed additional requirements purported to “help reduce the amount of identity theft from people who create new identities. It also would make is [sic] more difficult for illegal immigrants to create new identities, since the documentation to prove a person’s current identity would be much stricter.” (Press Release, Democratic Caucus, Cheatham Outlines Agenda for 2010 Legislative Session (Dec. 9, 2009)). Currently, the procedure to effect a name change involves the filing of a petition with the trial court:
Filing petition; procedure for change of name of minor
Sec. 2. (a) The petition described in section 1 of this chapter must:
(1) if applicable, include the information required by section 2.5 of this chapter;
(2) in the case of a petition filed by a person described in section 2.5 of this chapter, be subscribed and sworn to (or affirmed):
(A) under the penalties of perjury; and
(B) before a notary public or other person authorized to аdminister oaths; and
(3) be filed with the circuit court of the county in which the person resides.
(b) In the case of a parent or guardian who wishes to change the name of a minor child, the petition must be verified, and it must state in detail the reason the change is requested. In addition, except where a person’s consent is not required under [
I.C. § ] 31-19-9 , the written consent of a parent, or the written consent of the guardian if both parents are dead, must be filed with the petition.(c) before a minor child’s name may be changed, the parents or guardian оf the child must be served with a copy of the petition as required by the Indiana trial rules.
Contents of petition
Sec. 2.5. (a) if a person petitioning for a change of name under this chapter is at least seventeen (17) years of age, the person’s petition must include at least the following information:
(1) The person’s date of birth.
(2) The person’s current address; and
(A) residence address; and
(B) if different than the person’s residence address, mailing address.
(3) The person’s valid:
(A) Indiana driver’s license number; or
(B) Indiana identification card (as described in [
I.C. ch.] 9-24-16 ) number.(4) A list of all previous names used by the person.
(5) Proof that the person is a United States citizen.
(6) A statement concerning whether the person holds a valid United States passport.
(7) A descriрtion of all judgments of criminal conviction of a felony under the laws of any state or the United States that have been entered against the person.
Thus,
When Resnover and Herron presented themselves at the BMV requesting, respectively, a driver’s license and an identification card in their common law names, they were turned down because the birth certificates used to prove their identities indicated a different legal name.2 Pursuant to
As such, both Resnover and Herron are in a dilemma. Unable to change their birth certificates to their common law names means that they are unable to prove their identities to receive a driver’s license or identification card. Without a valid driver’s license or identity card even the most basic daily tasks present an insurmountable burden: they cannot purchase certain over-the-counter allergy medicine that contains ephedrine or pseudoephedrine, purchase alcohol or tobacco, they cannot enter federal facilities or board a commercial airplane, and cannot receive free assistancе with their income taxes. In order to provide a solution to this conundrum, we have to interpret
The interpretation of a statute is a legal question that is reviewed de novo. Sun Life Assur. Co. of Canada v. Ind. Dept. of Ins., 868 N.E.2d 50, 55 (Ind.Ct.App.2007), trans. denied. Statutory interpretation is the responsibility of the court and within the exclusive province of the judiciary. Id. The first and often the last step in interpreting a statute is to examine the language of the statute. Id. When confronted with an unambiguous statute, we do not apply any rules of statutory construction other than to give the words and phrases of the statute their plain, ordinary, and usual meaning. Id. We review the statute as a whole and presume the legislature intended a logical application of the language used in the statute, as to avoid unjust or absurd results. New Albany Historic Preservation Comm’n v. Bradford Realty, Inc., 965 N.E.2d 79, 88 (Ind.Ct.App.2012).
In its Amicus Curiae Brief, the State suggests that the plain wording of the statute merely requires a valid license number or identification number to support a petition for name change, not an actual license or identification card. We agree.
An identification card number is the “[u]nique identification number” that must be written on the front of an identification card issued under
The practice of using a driver’s license number as identifying information is commonplace in Indiana’s statutes. See, e.g.,
Recеntly, the United States District Court for the Southern District of Indiana in a factually similar case interpreted the statute to require that petitioner only provide a valid license number or identification card number. Worley v. Waddell, 2012 WL 4794654 (S.D.Ind.2012). In Worley, the petitioner asserted federal due process arguments when the BMV refused to issue him an identification card in his common law name. Id. at 1. In discussing whether a state law remedy was available or was inadequate as part of Worley’s procedural due process claim, the district court explicitly took judicial noticе of the proceedings in this consolidated case. Id. at 4.
A. Resnover
Interpreting the statute as we do today—requiring the submission of a driver’s license number or identity card number—will solve the dilemma Resnover found himself in. More importantly, during the court proceedings, Resnover had already presented the trial court with a copy of his expired driver’s license, which included his unique license number.
B. Herron
Although the State in its Amicus Curiae brief indicates that the record is ambivalent as to whether Herron had ever received a driver’s license or identification card, the trial court, in its Order, noted that Herron “never had an Indiana driving license or an identification card issued by the BMV.” (Herron’s App. p. 4). During the proceedings, Herron testified that the only identification he had was a social security card and an identification issued by the Department of Correction, both of which were lost when his billfold was stolen. Because Herron never applied for an Indiana driver’s license or identification card, he was never assigned a number that must be included in the petition when requesting the trial court for a change of name. Therefore, he will never be able to аmend the name on his birth certificate, a mandatory prerequisite to establish the identity requirement for receiving an Indiana driver’s license or identification card.
To avoid the rigid requirements of
Filing petition; procedure for change of name of minor
Sec. 2. (a) The petition described in section 1 of this chapter must:
(1) if applicable, include the information required by section 2.5 of this chapter;
The interrelationship between
Although Section 2.5 propones the mandatory language that the petition “shall” include these documents, we are mindful that “[w]hen the word ‘shall’ appears in a statute, it is construed as mаndatory rather than directory unless it appears clear from the context or the purpose of the statute that the legislature intended a different meaning.” United Rural Elec. Membership Corp. v. Indiana & Michigan Elec. Co., 549 N.E.2d 1019, 1022 (Ind.1990). This is one of the rare instances where the Legislature intended a directory language. If we were to follow Amicus’ suggestion and mandate a driver’s license number or identification card number, it raises the question how a petitioner older than seventeen, having never received a driver’s license or identity card will be able to get his or her name changed on a birth certifiсate.3
In sum, today we hold that to effect a name change, a petitioner must submit with the petition for a name change the documents requested in
CONCLUSION
Based on the foregoing, we hold that the trial court trial court erred when it re-
Reversed and remanded for further proceedings.
BAILEY, J. concurs.
CRONE, J. concurs in part and dissents in part with separate opinion.
In re the Name Change of John William RESNOVER, Appellant-Petitioner, and In re the Name Change of John Arthur Herron, Appellant-Petitioner.
No. 49A02-1205-MI-364.
Court of Appeals of Indiana.
Dec. 5, 2012.
I concur in the majority’s disposition of Resnover’s appeal.
As for Herron, I respectfully disagree with the majority’s interpretation of “if applicable” in
“Statutes relating to the same general subject matter ‘are in pari materia [on the same subject] and should be construed together so as to produce a harmonious statutory scheme.’ ” Klotz v. Hoyt, 900 N.E.2d 1, 5 (Ind.2009) (quoting Sanders v. State, 466 N.E.2d 424, 428 (Ind.1984)). “The legislature is presumed to have intended the language used in the statute to be applied logically and not to bring about an unjust or absurd result.” Bd. of Comm’rs of Hendricks Cnty. v. Town of Plainfield, 909 N.E.2d 480, 489-90 (Ind.Ct.App.2009). In my view, a plain reading of both statutes indicates that the “if applicable” in
According to