Anderson v. Dainard

478 S.W.3d 147

Julie Ann Anderson, Appellant

v.Anthony Douglas Dainard, Appellee

NO. 01–15–00081–CV

Court of Appeals of Texas, Houston (1st Dist.).

Opinion issued October 6, 2015

Matthew W. Brown, Houston, TX, for Appellant.

Jessica Burkett, Stafford, TX, for Appellee.

Panel consists of Chief Justice Radack and Justices Bland and Huddle.

OPINION

Rebeca Huddle, Justice

The trial court granted Anthony Dainard's request to change the surname of his daughter, A.A.A., from her mother's surname, Anderson, to his own. The mother, Julie Ann Anderson, argues in a single issue on appeal that the trial court abused its discretion because insufficient evidence supports the trial court's judgment granting the name change. We affirm.

Background

Anderson and Dainard had a brief romantic relationship but never married. After their relationship ended, Anderson told Dainard that she was pregnant with his child. Dainard questioned whether Anderson was pregnant and asked Anderson to consent to a test to establish his paternity, but Anderson did not consent.

In April 2012, Anderson gave birth to A.A.A. and gave her the surname "Anderson." Some months later, the Office of the Attorney General of Texas filed a parentage and child support action against Dainard. The trial court ordered parentage testing, and Dainard was established as A.A.A.'s biological father.

When A.A.A. was 6 months old, Anderson and Dainard agreed to temporary orders that established Dainard's parentage and named Dainard and Anderson joint managing conservators of A.A.A., with Anderson having the right to maintain A.A.A.'s primary residence in Harris or any contiguous county. The agreed temporary orders required Dainard to pay guidelines child support and provide health insurance. They also gave Dainard limited visitation of A.A.A.

After entry of the temporary orders, Dainard retained counsel and filed a Suit Affecting the Parent–Child Relationship, by which he sought to change A.A.A.'s surname to Dainard. This suit was consolidated with the original action, and trial was delayed somewhat due, in part, to Anderson's desire to refer the case to a district court. The parties attended an unsuccessful mediation in June 2013, but their second mediation in June 2014 was more fruitful: Anderson and Dainard entered into a Mediated Settlement Agreement that resolved all issues except for the dispute over A.A.A.'s surname.

The parties proceeded to a trial on that issue in July 2014. On the day of trial, the parties proved up the Mediated Settlement Agreement, which established Anderson and Dainard as joint managing conservators and required Dainard to continue to pay child support and maintain health insurance for A.A.A. The MSA also provided for a "step-up" visitation plan that would, over time, become a standard possession order. Both Anderson and Dainard testified that they believed that these agreements were in A.A.A.'s best interest.

After approving the MSA, the trial court heard testimony from both Anderson and Dainard regarding the name change. Dainard testified that he saw A.A.A. regularly and believed it was in A.A.A.'s best interest to have his surname, because A.A.A. lived primarily with Anderson, and giving A.A.A. the Dainard surname would help create a bond between A.A.A. and Dainard. Dainard conceded on cross-examination, however, that he would "love [A.A.A.] all the same whatever her name is" and that he could bond with her regardless of her name. He also acknowledged that neither surname would cause her any embarrassment.

Anderson testified that A.A.A spent approximately 90% of her time with Anderson during the first 26 months of her life. She testified that A.A.A. is aware of her last name, can speak her full name, and has always used the surname Anderson at her doctor's office and daycare. Anderson also testified that A.A.A. is close to Anderson's mother, who also uses the surname Anderson. Anderson testified that she would not change her own surname even if she married, and that she believed it was in A.A.A.'s best interest to keep her surname. Anderson testified that keeping A.A.A.'s surname would be less confusing and could give A.A.A. some confidence, but she acknowledged that A.A.A. knows that Dainard is her father and that changing A.A.A.'s name to Dainard would not change A.A.A.'s relationship with Anderson.

The trial court granted the name change, and its final judgment ordered that A.A.A. should have her surname legally and officially changed to Dainard for all purposes. Anderson timely appealed.

Discussion

In her sole issue on appeal, Anderson contends that the trial court abused its discretion by ordering A.A.A.'s surname changed because the evidence is legally and factually insufficient to show that the name change is in the child's best interest.

A. Standard of Review

We review a trial court's ruling on a request to change the name of a child for an abuse of discretion. In re A.E.M., 455 S.W.3d 684, 689 (Tex.App.–Houston [1st Dist.] 2014, no pet.) ; In re Guthrie, 45 S.W.3d 719, 723 (Tex.App.–Dallas 2001, pet. denied). A trial court abuses its discretion when it acts in an arbitrary or unreasonable manner, or if it acts without reference to any guiding rules or principles. In re A.E.M., 455 S.W.3d at 689 (citing In re H.S.B., 401 S.W.3d 77, 81 (Tex.App.–Houston [14th Dist.] 2011, no pet.) ).

When reviewing the sufficiency of the evidence under an abuse-of-discretion standard, evidentiary insufficiency is not an independent issue. In re A.E.M., 455 S.W.3d at 690 ; Moreno v. Perez, 363 S.W.3d 725, 735 (Tex.App.–Houston [1st Dist.] 2011, no pet). Instead, the sufficiency challenge is incorporated into the abuse-of-discretion review. Moreno, 363 S.W.3d at 735 ; see In re H.S.B., 401 S.W.3d at 81–82. In this situation, "[o]ur analysis employs a two-pronged inquiry: (1) whether the trial court had sufficient information upon which to exercise its discretion; and (2) whether the trial court erred in its application of discretion." Moreno, 363 S.W.3d at 735 (citing McGuire v. McGuire, 4 S.W.3d 382, 387 (Tex.App.–Houston [1st Dist.] 1999, no pet.) ).

Legally insufficient evidence supports a finding if (1) there is a complete absence of evidence of a vital fact, (2) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a mere scintilla, or (4) the evidence conclusively establishes the opposite of the vital fact. City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex.2005). Where, as here, a trial court does not issue findings of fact and conclusions of law, all facts necessary to support the judgment and supported by the evidence are implied. Retamco Operating, Inc. v. Republic Drilling Co., 278 S.W.3d 333, 337 (Tex.2009).

B. Applicable Law

Section 45.004 of the Texas Family Code provides, in pertinent part, that "[t]he court may order the name of a child changed if the change is in the best interest of the child...." TEX. FAM.CODE ANN. § 45.004 (West 2014). And Section 160.636(e) of the Family Code, which governs orders adjudicating parentage, states that the court may order that the name of the child be changed "[o]n request of a party and for good cause shown."¹

The child's best interest is the determinative issue; the interests of the parents are irrelevant. In re A.E.M., 455 S.W.3d at 690. We consider the best interest of the child in light of the following non-exclusive factors:

(1) the name that would best avoid anxiety, embarrassment, inconvenience, confusion, or disruption for the child, which may include consideration of parental misconduct and the degree of community respect (or disrespect) associated with the name;

(2) the name that would best help the child's associational identity within a family unit, which may include whether a change in name would positively or negatively affect the bond between the child and either parent or the parents' families;

(3) assurances by the parent whose surname the child will bear that the parent will not change his or her surname at a later time;

(4) the length of time the child has used one surname and the level of identity the child has with the surname;

(5) the child's preference, along with the age and maturity of the child; and

(6) whether either parent is motivated by concerns other than the child's best interest—for example, an attempt to alienate the child from the other parent.

Id. (quoting In re H.S.B., 401 S.W.3d at 84 ). These are not the only factors that the trial court may consider, and the "relative importance of these factors, and other possible factors, will depend on the unique facts and circumstances of each case." In re H.S.B., 401 S.W.3d at 84. As these factors suggest, the determination of the child's best interest in a name change is fact specific. In re Guthrie, 45 S.W.3d at 726.

C. Analysis

The uncontroverted testimony shows that neither parent's name would cause A.A.A. embarrassment, and there was no evidence that either name was accorded any particular respect in the community. Nor was there evidence of parental misconduct or neglect. Anderson testified that A.A.A. spent 90% of her time with Anderson, and Dainard testified that he had been providing support and health insurance and visiting A.A.A. regularly, in accordance with the temporary orders. Anderson offered evidence from which the trial court could have inferred that Dainard did not prioritize A.A.A. as highly as Anderson did—she testified that Dainard had asked to reschedule visitation due to problems with his home, pet, job, or for "no excuse at all," and she also stated that Dainard did not get involved in A.A.A.'s life as early as he should have. But the trial court could have...