Bonilla v. Appeal from Cheshire-Southington Probate Court

Xavier Michael BONILLA, a Minor, BY AND THROUGH his Father and Next Friend Jorge BONILLA v. Appeal from CHESHIRE-SOUTHINGTON PROBATE COURT

No. HHBCV176036455S

Superior Court of Connecticut, Judicial District of New Britain, New Britain

January 12, 2018

UNPUBLISHED OPINION

File Date: January 11, 2018

OPINION

Peter Emmett Wiese, Judge

I PROCEDURAL HISTORY

This matter is an appeal from the Court of Probate pursuant to General Statutes § 45a-186 et seq. The probate court proceedings were not conducted on the record. The complaint is dated February 10, 2017.^[1] In response an answer dated March 27, 2017 was filed with the court.

Briefly stated, the dispute concerns a January 13, 2017 decree from the Court of Probate, Cheshire-Southington Probate District. This decree granted a petition of the minor child’s mother changing the name of the child from Xavier Michael Bonilla to Xavier Michael Bonilla-Wiltse. The father of the minor child Jorge Bonilla, opposed the name change, and this appeal followed.

The appeal trial was held on October 20, 2017. Thereafter, the parties filed post-trial briefs which include proposed findings of fact and applicable law.

II DISCUSSION

A. Applicable Law

General Statutes § 45a-99 provides: " The courts of probate shall have concurrent jurisdiction with the Superior Court as provided in [General Statutes § ] 52-11, as amended by this act, to grant a change of name ..."

" An appeal from probate is not so much an ‘appeal’ as a trial de novo with the Superior Court sitting as a Probate Court and restricted by a Probate Court’s jurisdictional limitations. Kerin v. Stangle, 209 Conn. 260, 264 550 A.2d 1069 (1988). When the Superior Court hears an appeal from a decision of the Probate Court, it acts as the Probate Court. " As such, its jurisdiction was the jurisdiction of a Probate Court and not the jurisdiction of the Superior Court." In re Andrews’ Appeal from Probate, 78 Conn.App. 429, 431, 826 A.2d 1260 (2003); Gardner v. Balboni, 218 Conn. 220, 225, 588 A.2d 634 (1991). " When entertaining an appeal from an order or decree of a Probate Court, the Superior Court takes the place of and sits as the court of probate." Kerin v. Stangle, supra, 264; Satti v. Rago, 186 Conn. 360, 365, 441 A.2d 615 (1982). In the absence of a record of the underlying Probate Court proceedings, the court hears the plaintiff’s appeal de novo. Andrews v. Gorby, 237 Conn. 12, 16, 675 A.2d 449 (1996); In re Andrews’ Appeal from Probate, supra, 431. " In an appeal from probate, the Superior Court retries the issues de novo, and the case is not presented on a transcript of the proceedings in the Probate Court." Miller v. Miller, 158 Conn. 217, 224, 258 A.2d 89 (1969).

Although the Superior Court may not consider events transpiring after the Probate Court hearing; Satti v. Rago, supra, 186 Conn. 369; it may receive evidence that could have been offered in the Probate Court, whether or not it actually was offered. See In re Baskin’s Appeal from Probate, 194 Conn. 635, 641, 484 A.2d 934 (1984); Appeal of Stevens, 157 Conn. 576, 581, 255 A.2d 632 (1969).

" Whether an application for a change of name should be granted is a matter which rests in the sound discretion of the court ... In exercising that discretion, the court should bear in mind that, generally speaking, independently of any court order, a person is free to adopt and use any name he sees fit ... Ordinarily, therefore, an application for a change of name should be granted unless it appears that the use of the new name by the applicant will result in injury to some other person with respect to his legal rights, as, for instance, by facilitating unfair competition or fraud ... When the question presented is whether the name of a minor child should be changed, the court, in line with its universal duty to protect the interests of minors, must take into consideration whether the change of name will promote the child’s best welfare." Don v. Don, 142 Conn. 309, 311-12, 114 A.2d 203 (1955).

" The controlling principle in a determination respecting custody is that the court shall be guided by the best interests of the child ... In determining what is in the best interests of the child, the court is vested with a broad discretion." (Citations omitted; internal quotation marks omitted.) Ford v. Ford, 68 Conn.App. 173, 187-88, 789 A.2d 1104, cert. denied, 260 Conn. 910, 796 A.2d 556 (2002). The court in Shockley v. Okeke, 48 Conn.Supp. 647, 653-54, 856 A.2d 1054 (2004), rev’d on other grounds, 92 Conn.App. 76, 882 A.2d 1244 (2005), appeal dismissed, 280 Conn. 777, 912 A.2d 991 (2007), similarly applied the " best interest of the child" standard. See also Gillette v. Schroeder, Superior Court, judicial district of New London, Docket No. FA-10-4112725 (Feb. 24, 2010, Shluger, J.) . " The well-being of the child rather than the punishment or reward of the parent ought to guide every custody case." Reza v. Leyasi, 95 Conn.App. 562, 567-68, 897 A.2d 679 (2006); Stvan v. Stvan, Superior Court, judicial district of Fairfield, Docket No. FA-14-4045766 (January 12, 2016, Adelman, J.). " The focus is on the child’s welfare, not the sensibilities of the parent ... The respondent’s personal sensibilities are not grounds for a [name] change ..." St. Amour v. Carvalho, Superior Court, judicial district of Windham, Docket No. FA-04-4000030 (August 11, 2005, Driscoll, J.) .

While there is no authority on what entails the best interests of a minor child for purposes of a name change, the court will determine such factors by using child custody cases as guidance. See McKechnie v. McKechnie, 130 Conn.App. 411, 418 n.6, 23 A.3d 779, cert. denied, 302 Conn. 931, 28 A.3d 345 (2011).

The parent moving for a change of a minor’s name has the burden of proof of proving that the change is in the child’s best interests. Gardner v. Balboni, supra, 218 Conn. 225; Wheat v. Wheat, 156 Conn. 575, 578, 244 A.2d 359 (1968); Gillette v. Schroeder, supra, Superior Court, Docket No. FA-10-4112725; Shockley v. Okeke, supra, 48 Conn.Supp. 654.

Courts have rejected the clear and convincing evidence test and applied the fair preponderance of the evidence test in making change of name decisions. Gillette v. Schroeder, supra, Superior Court, Docket No. FA-10-4112725; Shockley v. Okeke, supra, 48 Conn.Supp. 654; Peterson v. Peterson, Superior Court, judicial district of Danbury, Docket No. CV-99-0337876-S (May 22, 2000, Axelrod, J.), aff’d, 63 Conn.App. 909, 776 A.2d 1200, cert. denied, 258 Conn. 905, 782 A.2d 138 (2001).

B. Facts

Based upon the credible evidence presented at trial, the court finds the following relevant facts.

The minor child, Xavier, was born on October 2, 2011. The child’s mother is Brittany Wiltse, and his father is Jorge Bonilla. The parents of Xavier dated for several years, but had an on and off relationship. Throughout the pregnancy and early in Xavier’s life, his parents attempted to resolve relationship issues. At a point in time, early in Xavier’s life the parents decided to raise the child separately. Xavier is now six years old and attends kindergarten at the Derynoski Elementary School in Southington, Connecticut.

Ms. Wiltse’s birth name is Keegan. At the time of Xavier’s birth, Mr. Bonilla’s name was placed on the birth certificate and the child was named Xavier Bonilla. The parties did not consider a hyphenated name for Xavier of Keegan-Bonilla.

The parties have a child custody and visitation plan in place. The child’s primary residence is with his mother in Southington. They jointly share legal custody. Mr. Bonilla has Xavier on Wednesday evenings and every other weekend. Xavier is Mr. Bonilla’s only child. He resides in Dayville, Connecticut. Although the parties live a significant distance apart, they have worked together to make the visitation plan successful.

Xavier knows and interacts with the families of both parents. All family members have a loving relationship with Xavier. He is a very happy, intelligent and well adjusted child. Xavier has never been in need of professional therapy or counseling. He has not exhibited anxiety over his birth name. Xavier has experienced a good relationship with the adults in his life. He has not experienced any negative situations with his peers over his name.

Ms. Wiltse began dating her current husband, Anthony Wiltse, in January 2013. They were married in June 2015. Xavier was approximately sixteen months old when the dating relationship began. Xavier and Mr. Wiltse have had a good relationship. When Ms. Wiltse married, she did not raise the issue that Xavier would have a different last name than herself.

Ms. Wiltse’s second son was born in August 2016. The child’s name is Emmons Wiltse. Xavier was approximately five years of age when his brother was born. After his brother’s birth, Xavier inquired as to why his last name was different than Emmons’. Ms. Wiltse explained to Xavier that Bonilla is his last name, because it is his father’s name. She made it clear to him that he and Emmons have different fathers and, therefore, different last names.

Ms Wiltse also told Xavier that he will always be a part of the Wiltse family. She wants Xavier to identify with her new family. The reason Ms. Wiltse wants to change Xavier’s last name is because she wants him to feel a part of the Wiltse family and to identify with the other members of the Wiltse family. However, there has been no event in Xavier’s life that has made him feel excluded or left out of the Wiltse family. Mr. Bonilla and Ms. Wiltse never did anything to make Xavier feel left out of the Wiltse or Bonilla families. Xavier did not exhibit any inappropriate or negative behaviors following the birth of Emmons. He was in fact very happy to have a brother. Xavier...