Werthwein v. Workman

546 S.W.3d 749

Adaline Rose WERTHWEIN, Appellant

v.Craig Edward WORKMAN, Appellee

NO. 01–16–00889–CV

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

Opinion issued February 15, 2018

Rehearing Denied April 26, 2018

Sallee S. Smyth, Attorney at Law, SBN: 18779400, 800 Jackson Street, Richmond, TX, for Appellant.

Aaron M. Reimer, SBN: 24060477, Jenkins & Kamin, LLP, Two Greenway Plaza, Suite 600, Houston, TX, for Appellee.

Panel consists of Justices Jennings, Bland, and Brown.

OPINION

Harvey Brown, Justice

This is a dispute over the name change of a minor. The minor's mother, Adaline Werthwein, contends that the trial court abused its discretion by granting the request of the father, Craig Workman, to change the last name of their two-year-old son (pseudonymously referred to as "Michael") from Werthwein to Workman without legally or factually sufficient evidence that the name change was in Michael's best interest. Werthwein also contends that the trial court erroneously shifted the burden of proof to her to disprove that a name change was in Michael's best interest, and, in doing so, revealed a bias in favor of the father.

Because there is adequate evidence to support the trial court's best-interest determination and there is no indication that the trial court shifted the burden of proof, we affirm.

Background

Werthwein and Workman married in June 2012. Werthwein, who is a real estate agent, continued using Werthwein as her last name during the marriage, both socially and professionally. She listed her last name as Werthwein on real estate signs and in professional and personal documents, including tax documents filed with the government. She listed Workman as her last name on her driver's license.

Approximately six months into the marriage, Werthwein became pregnant with Michael. Werthwein and Workman separated before Michael was born. The two parties testified differently regarding the events leading to their separation, Michael's birth, and the selection of Michael's last name.

The parties dispute what Workman's reaction was to the pregnancy. According to Workman, he doubted that he was the father of the child because he had received a medical opinion that led him to believe he could not have biological children. Workman testified that he confronted Werthwein about the child's paternity and that she said the child would be of a different race than Workman.

Werthwein denied Workman's assertions. She testified that the couple had been actively trying to get pregnant after having an earlier pregnancy end in miscarriage. She said that Workman was "very excited" about the pregnancy and that the couple had happily announced it to friends with an "It's a Boy" sign. According to Werthwein, there was never a conversation between the two about Michael possibly not being Workman's biological child. Werthwein testified that, as the pregnancy progressed in early 2013, Workman unexpectedly began denying paternity to friends and then moved out.

In May 2013, Werthwein filed for divorce, listing herself and Workman as the parents of the unborn child. Workman countersued, denied paternity, and requested genetic paternity testing. Workman did not request in his original counter-petition for divorce that Michael's last name be changed to Workman. At that point, paternity was still undetermined.

In August 2013, according to Werthwein, Workman told her to not contact him again. Communication stopped.

Michael was born the next month, in September 2013. Workman was not at the delivery. There is no indication in the record whether Workman knew Michael had been born.

When Werthwein was presented paperwork at the hospital to obtain Michael's birth certificate, she listed Workman as Michael's father but indicated that Michael's last name would be Werthwein, not Workman. Werthwein testified that she gave Michael her last name because, at that time, "his father was denying him." Upon questioning by the trial court, she stated, "I don't really know many women that are going to name their child after a man that's walked out on the marriage ... [and] denied ... paternity of the child."

A paternity test was later conducted that confirmed Workman is Michael's biological father. Divorce proceedings continued, still without Workman requesting Michael's last name be changed. The divorce became final in June 2014, when Michael was about nine months old.

More than a year later, in September 2015, Workman sought to modify conservatorship to allow more access to Michael. Werthwein filed a counter-petition, seeking additional child support. Workman then amended his petition in January 2016, when Michael was about two and one-half years old, to request Michael's last name be changed to Workman.

According to Werthwein, Workman never mentioned wanting Michael to have his last name until he amended his petition in January 2016, after Michael had accumulated more than two years of experience using the last name Worthwein in his community and on his official documents, including his certificate of baptism and his school and medical records. Werthwein argued that it would cause Michael confusion to change his name after he had begun to identify with the last name Werthwein.

The other modification issues were resolved by the parties; however, they could not agree on the issue of Michael's last name. A hearing was held in June 2016 for the trial court to determine the last name that would be in Michael's best interest. The parents were the only witnesses, and their testimony directly contradicted each other's. The trial court issued a ruling, finding that Michael's last name should be changed to Workman and that it was in Michael's best interest for his last name to be Workman.

Werthwein appeals.

Sufficiency of Evidence to Support Name Change

In her first issue, Werthwein argues that the trial court abused its discretion in granting the name change because there was insufficient evidence that changing Michael's name was in his best interest.

A. Statutory basis for minor name change and standard that applies

Section 45.004 of the Family Code states that a "court may order the name of a child changed if ... the change is in the best interest of the child." TEX. FAM. CODE § 45.004(a)(1) ; see id. § 160.636(e) (providing that courts adjudicating parentage issues may, upon "request of a party and for good cause shown ... order that the name of the child be changed"). Parental interests are irrelevant; the child's best interest is determinative. Anderson v. Dainard , 478 S.W.3d 147, 151 (Tex. App.–Houston [1st Dist.] 2015, no pet.).

To evaluate the best interest of the child in connection with a requested name change, we consider six nonexclusive factors, keeping in mind that their "relative importance ... will depend on the unique facts and circumstances of each case." Anderson , 478 S.W.3d at 151 (quoting In re H.S.B. , 401 S.W.3d 77, 84 (Tex. App.–Houston [14th Dist.] 2011, no pet.). The nonexclusive factors are

(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 last name the child will bear that the parent will not change his or her last name at a later time;

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

(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.

Anderson , 478 S.W.3d at 151.

Because changing a child's last name may cause disruption and confusion, courts have recognized the benefits inherent in maintaining the status quo and the need for a petitioner to demonstrate that a different last name is in the child's best interest. See Anderson , 478 S.W.3d at 152–53 (noting that both parents provided best-interest evidence in support of their preferred disposition and concluding that, on mixed evidence, trial court did not abuse discretion in ordering name change); In re A.E.M. , 455 S.W.3d 684, 692 (Tex. App.–Houston [1st Dist.] 2014, no pet.) (holding that "slight evidence" presented by father did not meet burden for changing child's last name); In re Guthrie , 45 S.W.3d 719, 724 (Tex. App.–Dallas 2001, pet. denied) (stating that courts will change child's name reluctantly and only for good reason); cf. In re H.S.B. , 401 S.W.3d at 83 n.7 (noting that analysis in suits to change minor's name generally favors status quo).

B. 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 at 689. A trial court abuses its discretion when it acts in an arbitrary or unreasonable manner or without reference to any guiding rules or principles. Id. When reviewing the sufficiency of the evidence under an abuse-of-discretion standard, evidentiary sufficiency is not an independent issue. Id. It is incorporated into the abuse-of-discretion review. Id. The analysis is two pronged: (1) whether the trial court had sufficient information to exercise its discretion¹ and (2) whether the trial court erred in its application of its discretion. Id.

The factfinder is the sole judge of a witness's credibility and the weight to be given each witness's testimony. City of Keller v. Wilson , 168 S.W.3d 802, 819 (Tex. 2005) ; Anderson , 478 S.W.3d at 152.

C. Trial court determines credibility and weight of witness testimony

To change a child's last name, the trial court must determine that the change is in the child's...