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State ex rel. Connor H. v. Blake G.

Supreme Court of Nebraska

October 10, 2014

STATE OF NEBRASKA ON BEHALF OF CONNOR H., A MINOR CHILD, APPELLEE,
v.
BLAKE G., APPELLEE, AND AMANDA H., NOW KNOWN AS AMANDA G., THIRD-PARTY DEFENDANT AND APPELLANT. IN RE CHANGE OF NAME OF CONNOR H., BY AND THROUGH HIS NEXT FRIEND, AMANDA G. AMANDA G., APPELLANT,
v.
BLAKE G., APPELLEE

Appeals from the District Court for Johnson County: DANIEL E. BRYAN, JR., JUDGE.

Page 296

Marc J. Odgaard, of Hanson, Hroch & Kuntz, for appellant.

Diane L. Merwin, of Fankhauser, Nelsen, Werts, Ziskey & Merwin, P.C., for appellee Blake G.

HEAVICAN, C.J., WRIGHT, CONNNNOLLY, STEPHAN, MCCORMACK, MILLER-LERMAN, AND CASSEL, JJ. MILLER-LERMAN, J., concurring.

OPINION

Page 297

[289 Neb. 247] Cassel, J.

INTRODUCTION

This appeal addresses the surname of a child born out of wedlock and given his mother's maiden surname. After the mother married and began using her husband's surname, both parents sought to change the child's surname--the father pro-posing his surname and the mother requesting her married surname. The district court granted the father's request, giving preference to the paternal surname and using a " substantial evidence" standard. But the child's best interests, without any presumption favoring either parent's surname, is the controlling standard. Upon our de novo review, we conclude that the evidence was insufficient to show that a change in the child's surname was in his best interests.

BACKGROUND

Connor H. was born out of wedlock to Blake G. and Amanda H., now known as Amanda G., in October 2008. Blake signed the birth certificate, which listed Amanda's maiden surname as Connor's surname. Amanda made the decision to

Page 298

use her maiden surname as Connor's surname, and Blake testified that he was " [n]ot really" allowed any input in that decision. Blake and Amanda ceased living together prior to Connor's [289 Neb. 248] birth, and Amanda has been Connor's custodial parent since his birth.

Blake and Amanda entered into a stipulation regarding paternity, child support, and other matters. On December 1, 2009, the district court entered a judgment, styled as an order, granting Amanda sole legal and physical custody of Connor, granting Blake reasonable rights of visitation, and ordering Blake to pay child support.

In December 2011, Amanda married. She then changed her surname to that of her husband.

On January 28, 2013, Blake filed a complaint to modify the December 2009 judgment. He alleged that a material change in circumstances had occurred and requested, among other things, that Connor's surname be changed to Blake's surname.

On August 12, 2013, Amanda initiated a separate case by filing a petition for name change. She alleged that it was in Connor's best interests to change his surname from Amanda's maiden surname to her married surname.

The district court heard both matters in October 2013. At that time, Connor was 4 years old and enrolled in preschool. Evidence established that Connor had leukemia and that he was covered under Amanda's insurance. Both parents were involved in his medical care.

Blake was able to build a strong relationship with Connor despite their different surnames. Connor referred to Blake as " 'Dad.'" Amanda was supportive of Blake's relationship with Connor and allowed Blake additional visitation at times. Blake testified that he exercised his visitation rights and paid child support. At the time of trial, he was current on child support, but he had been in arrears until approximately May 2011. Blake attended Connor's T-ball games and school activities. Blake also took Connor hunting and fishing and to watch football games. Connor knew his paternal grandparents and was involved with both of Blake's brothers.

Amanda wished to change Connor's surname to match her married surname. Because Amanda, Connor's stepfather, and Connor's half sister have the same surname, Amanda thought that Connor " would feel more part of the family and feel like he belongs if he could have the same last name as everybody [289 Neb. 249] that he lives with." Amanda testified that Connor asked about her last name and that of his half sister and that he knew he had a different last name. As it pertained to Amanda's state of mind and not for the truth of the matter, the court allowed Amanda to testify that Connor had told her that he would like his last name to be Amanda's married surname. Amanda testified that Connor loves his stepfather and that Connor has a great relationship with his stepgrandparents, who live in the same town.

Following the presentation of evidence, the district court stated:

Well, the Court doesn't find that there's evidence to change [Connor's surname] to [Amanda's married surname]. I think that's like a de facto adoption. I'm not going to do that; that would just simply be wrong.
Now, the evidence here is that the dad has had a good contact with the child, the natural father, and he's kept contact with the child. There's no reason to be ...

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