In re Interest of I.D.Z.

602 S.W.3d 1

In the INTEREST OF I.D.Z., a Child

No. 08-18-00202-CV

Court of Appeals of Texas, El Paso.

April 30, 2020

ATTORNEY FOR APPELLANT, Marlene Gonzalez, 912 Magoffin Ave., El Paso, TX 79901.

ATTORNEY FOR APPELLEE, G. Daniel Mena, Attorney at Law, 3233 N. Piedras, El Paso, TX 79930.

Before Alley, C.J., Rodriguez, and Palafox, JJ.

OPINION

JEFF ALLEY, Chief Justice J.A.R., Jr. ("Father") and V.R. ("Mother") are the parents of I.D.Z., a minor child (the "child"), who Mother named before Father's paternity was established. After Father's paternity was established, the trial court granted his request to change the child's name to J.A.R., III. Mother does not challenge the trial court's decision to change the child's surname to Father's surname, but contends that Father did not meet his burden of demonstrating that it was in the child's best interest, or that good cause existed to change his first and middle names.¹ Because we agree that Father did not meet his burden, we reverse the trial court's order changing the child's name. We decline to affirm the part of the order changing the child's surname. Children are not named in a piecemeal fashion. And because Mother made her own request for a change of the child's first name, we remand the matter to the trial court to consider that request in light of our opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND

Mother, who was in a dating relationship with Father, advised him in October of 2015, that she was pregnant with his child. When Father asked Mother to consider getting an abortion, Mother broke up with Father, and falsely told him that the child was not his. Mother then rekindled a relationship with an ex-boyfriend (I.Z.), who informed her that he wished to marry Mother and raise a family with her. When the child was born in May of 2016, Mother named the child after I.Z., giving the child his first and last name. However, she chose the middle name of "Damian" for the child and has consistently called the child by his middle name since the time of his birth. Shortly after the child's birth, Mother broke up with I.Z., and in 2016, Mother contacted Father to inform him that he was the biological father, a fact subsequently confirmed by DNA testing. At first, Mother allowed Father to visit with the child, but upon advice of counsel, she terminated Father's access to the child shortly after he filed a petition seeking (1) to establish paternity, (2) appointment as the managing conservator of the child, and (3) to change the child's name. Specifically, Father requested that the child's name be changed to J.A.R., III., but cited no reasons for the request. Mother filed a counterpetition, asking to be appointed as the sole managing conservator, and seeking child support. Mother did not address the issue of the child's name in her counterpetition.

The parties subsequently entered into an agreement in which Father acknowledged paternity, and the parties agreed to be appointed joint managing conservators, with Mother having the exclusive right to designate the child's residence. In addition, the parties agreed to a visitation schedule for Father, and agreed upon the amount of Father's child support obligation. However, the parties did not agree on the issue of the child's name change.

A. The Associate Judge's Proposed Order

Upon referral from the trial court, an associate judge heard the parties' petitions.² At the hearing, the associate judge accepted the parties' agreement with regard to paternity, conservatorship, and child support issues, noting that the only issue to be decided was whether to change the child's name.

Father testified at the hearing that he wanted the child's name changed to J.A.R., III, as he wished to have the family name "carry on," adding that he had always wanted to have a "namesake." Mother, on the other hand, requested that the child's first name be changed to his current middle name, "Damian," and that his last name be changed to her surname. In support of her request, Mother testified that the child, who was 19 months old at the time of the hearing, had always been called "Damian," and that the child responded to that name. She further expressed her belief that the child should not bear the Father's surname, given Father's lack of interest in her pregnancy and his failure to give her adequate financial support after the child's birth.³

The associate judge split the proverbial baby, and issued a proposed order, which would have changed the child's first name to "Damian," as Mother requested, but would have given the child the Father's surname, thereby proposing the name, D.R. Both parties were dissatisfied with this ruling. Father filed a "Motion for De Novo Hearing," requesting that the trial court reconsider the issue of the child's name change, again contending that the child's name should be changed to J.A.R., III. Mother filed a response to the motion, opposing Father's name-change request, and reiterating her request that the child be named "Damian," but with her surname.

B. The Trial Court Hearing

The trial court thereafter held a de novo hearing at which Father testified that he wished to have the child's name changed to J.A.R., III, so that the child would share his own father's name. Mother continued to oppose Father's request, again expressing her belief that Father did not have the right to name the child given his initial lack of interest in the child, and his failure to provide her with adequate financial assistance. And once again, Mother reiterated her request that the child's first name be changed to "Damian," and that his last name be changed to her surname.

At the close of the hearing, the trial court ordered the child's name changed to J.A.R., III.⁴ Although the trial court did not state its reasons for the name change, the court advised Mother that she could file a motion to modify the child's name in a year if Father did not, as Mother alleged, show "interest in the child" during that time.

Mother thereafter filed a motion to reconsider, arguing that Father did not present any evidence to support a finding that it was in the child's best interest to change the child's first and middle names, or that there was good cause for the change. However, Mother did not complain about the change of the child's surname, and requested that the trial court use the name, D.R., as proposed by the associate judge. The trial court denied Mother's motion and this appeal follows.⁵

II. DISCUSSION

In her sole issue on appeal, Mother contends that the trial court abused its discretion by changing the child's first and middle names, without any evidence that the name change was in the child's best interest or that there was good cause for the name change. Mother further contends that upon reversing the trial court's order, we should "reinstate" the associate judge's decision, and thereby find that the child's legal name is D.R. Although we agree with Mother that the trial court abused its discretion in changing the child's first and middle names, we conclude that there is no legal basis for "reinstating" the associate judge's decision.

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 Interest of C.M.V. , 479 S.W.3d 352, 358 (Tex.App.--El Paso 2015, no pet.). A trial court abuses its discretion by ruling (1) arbitrarily, unreasonably, or without regard to guiding legal principles, or (2) without supporting evidence. Id., citing Ford Motor Co. v. Garcia , 363 S.W.3d 573, 578 (Tex. 2012). To determine whether the trial court has abused its discretion, we engage in 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. In Interest of C.M.V. , 479 S.W.3d at 358, citing In re T.M.P. , 417 S.W.3d 557, 562 (Tex.App.--El Paso 2013, no pet.). The operative inquiry in the first question is the sufficiency of the evidence. Id. We must then decide whether, based on the elicited evidence, the trial court made a reasonable decision. Id.

In determining whether the trial court had sufficient information from which to make its decision, we keep in mind that the trial court was entitled to consider both the evidence presented at the de novo hearing, as well as the evidence that was presented to the associate judge. See Interest of A.L.M.-F. , 593 S.W.3d 271, 276-77 (Tex. 2019) (recognizing that unlike a trial de novo, which is an entirely new and independent proceeding, when a referring court holds a de novo hearing under the Family Code, the trial court may consider the record presented to the associate judge in making its ruling). We therefore consider the records from both hearings in conducting our review.

B. Relevant Law

A father does not have a constitutional right to have his name borne by his child. See In Interest of C.M.V. , 479 S.W.3d at 358, citing Newman v. King , 433 S.W.2d 420, 424 (Tex. 1968) ; In re Guthrie , 45 S.W.3d 719, 723 (Tex.App.--Dallas 2001, pet. denied) ; Concha v. Concha , 808 S.W.2d 230, 232 (Tex.App.--El Paso 1991, no writ). Further, as parents must be treated equally under both the Family Code and the Constitution, it is generally recognized that a father has no greater right to have a child bear his surname than does the mother. See Newman , 433 S.W.2d at 423 (because Texas law recognizes equality between parents, any argument "that the child of unmarried persons should bear the surname of the father because of custom is another way of permitting illegal inequality."); see also In re Guthrie , 45 S.W.3d at 724 (recognizing that any customs or traditions that favor giving a child the father's name reflect a "constitutionally prohibited inequality," and therefore must not be considered in determining whether to change a child's name).

Nevertheless, the Texas Family Code allows a father to move for a change of a child's name upon a...