                                                                         FILED
                                                                   May 11 2016, 8:26 am

                                                                         CLERK
                                                                    Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEY FOR APPELLEE
Jonathan M. Young                                         Warren C. Mathies
Law Office of Jonathan M. Young,                          Long & Mathies Law Firm, P.C.
P.C.                                                      Boonville, Indiana
Newburgh, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Korie M. Leslie,                                          May 11, 2016
Appellant-Respondent,                                     Court of Appeals Case No.
                                                          87A01-1508-JP-1164
        v.                                                Appeal from the Warrick Superior
                                                          Court
Jeremy D. Farmer,                                         The Honorable Robert R.
Appellee-Petitioner.                                      Aylsworth, Judge
                                                          Trial Court Cause No.
                                                          87D02-1002-JP-4



Brown, Judge.




Court of Appeals of Indiana | Opinion 87A01-1508-JP-1164| May 11, 2016                      Page 1 of 13
[1]   Korie M. Leslie (“Mother”) appeals the trial court’s order granting the request

      of Jeremy D. Farmer (“Father”) to change the last name of B. (“Child”) to

      Father’s last name. Mother raises one issue which we revise and restate as

      whether the court abused its discretion in granting Father’s request. We affirm.


                                       Facts and Procedural History

[2]   Father filed a petition to establish paternity on February 5, 2010, requesting an

      order for testing to determine if he was the biological father of Mother’s unborn

      child. Child was born on August 30, 2010. An entry in the chronological case

      summary (“CCS”) in February 2011 states the court was advised that one issue

      remained unresolved and that, by agreement of the parties, a hearing was

      scheduled on the issue of who will supervise Father’s parenting time. On July

      20, 2011, the court entered an Agreed Order stating that, based on DNA

      testing, Father is the biological father of Child, ordering that Mother have

      primary physical and sole legal custody of Child, setting Father’s parenting

      time, determining that Father shall pay Mother child support of seventy-one

      dollars per week effective September 3, 2010, acknowledging that the parties’

      agreement that Father’s support arrearage was $3,266 as of July 15, 2011, and

      ordering Father to pay Mother $1,629.63 for childbirth expenses and $1,500 for

      her attorney fees.


[3]   Mother filed an information for contempt in September 2011, and a CCS entry

      on October 18, 2011, states: “Mother and attorney appear. Father, appears pro

      se. Agreement recited. Father has paid money due. No sentence on I/C

      ordered and father to pay as recited.” Appellant’s Appendix, Volume 1, at 6.
      Court of Appeals of Indiana | Opinion 87A01-1508-JP-1164| May 11, 2016   Page 2 of 13
      An entry on October 20, 2011, states: “Agreed order on contempt entered. . . .

      Court clarifies 10-18 minute to confirm father has made payments toward

      amounts due, but all amounts due have not been made.” Id.


[4]   Mother filed a petition to modify on February 14, 2012, and Father filed a

      petition to modify on March 8, 2012. On April 17, 2012, the court entered an

      Agreed Order of Modification stating that the parties withdrew their petitions

      and would remain as joint legal custodians of Child, and setting forth Father’s

      regular and holiday parenting time.


[5]   In August 2014, Father sent an email message to Mother regarding changing

      Child’s last name, stating that, with Child starting preschool and Mother about

      to be married, he wanted Child’s last name changed from Mother’s last name

      (“Maternal Name”) to Father’s last name (“Paternal Name”) since he expected

      Mother to accept her new husband’s last name. Mother replied that Child’s last

      name would not be changed. An entry in the CCS on October 15, 2014, reflects

      that Mother filed an information for contempt, an entry in the CCS the

      following day shows a hearing scheduled, and a later entry shows the hearing

      was rescheduled for May 6, 2015.


[6]   An entry on October 16, 2014, states that Father by counsel filed a petition for

      change of name.1 An entry in the CCS which was input on May 7, 2015, states

      that the parties and counsel appeared at a hearing on miscellaneous issues on




      1
          The petition is not included in the record.

      Court of Appeals of Indiana | Opinion 87A01-1508-JP-1164| May 11, 2016   Page 3 of 13
      May 6, 2015, that the information for contempt had been satisfied with the

      payment of $1,450 paid by Father on that date, that the parties stipulated that

      Father overpaid ninety-six dollars on his regular child support, and that the

      court, upon request by Mother’s counsel, ordered Father to pay $500 toward

      Mother’s attorney fees.


[7]   On July 16, 2015, the court held a hearing on Father’s petition for change of

      name. He testified that he had to fight to establish paternity, that he was

      current on his child support, and that, throughout Mother’s different fiancés

      and the different places where Child has lived, he has consistently exercised his

      parenting time. He testified that Child would turn five years old on August

      30th, that, at the time Child was born, Mother was with a man and they later

      broke up, that Mother then became engaged to another man and they lived

      together, and that she then became engaged to her current husband. Father

      testified he had taken Child to Orlando, Florida three times in the last three

      years, that he exercises parenting time every other weekend and every

      Wednesday from 3:00pm to 7:00pm, and that he attended Child’s games.


[8]   On cross-examination, Father indicated he had not had any problems with

      access to Child’s school records due to having a different last name than Child.

      When asked if he thought Mother was “a good mom,” Father replied “100%.”

      Transcript at 14. He stated that he had worked with Child on writing her

      Paternal Name just as Mother had worked with her on writing her Maternal

      Name. When asked if he thought that was confusing to Child, he replied “[n]ot

      any more confusing than having three different fiancés in four years,” and when

      Court of Appeals of Indiana | Opinion 87A01-1508-JP-1164| May 11, 2016   Page 4 of 13
      asked if both were confusing, Father answered “[y]es . . . they are both

      confusing at different levels.” Id. at 16-17. When asked if the only time he had

      been current in child support in Child’s life was from May 2015 until the

      hearing, Father answered that, since he was unable to see Child for the first six

      months of her life, he had started out in arrears, that he had to pay Mother’s

      attorney fees, and that he had been paying his arrearage until a year earlier. He

      stated that his parents, grandparents, brother, sister, and an aunt and two uncles

      have the Paternal Name, and that, except for one uncle, they all lived in the

      Evansville area. Father indicated that he had been arrested four times, he had

      two DUIs, and that a charge of battery resulting in bodily injury as a class A

      misdemeanor from May 2013 was set for trial. He also acknowledged a

      collection matter involving a $500 credit card bill. When asked if he had two

      other opportunities to ask for Child’s name to be changed, Father answered that

      he was “advised by [his] lawyer the first time that we agreed to . . . the order

      that since she was dating a guy and gonna be married to him soon that we

      should do what we could to get as much time with her as we could,” that “then

      once they got married her name changed and we’d switch,” and that “[t]he

      same thing has happened two more times since then.” Id. at 25.


[9]   Mother testified that Child was enrolled in preschool under the Maternal

      Name, she has health insurance for Child under the Maternal name, Child is

      known in the community and identified by her doctor by that name, Child has

      savings bonds in that name which were purchased by Mother’s grandmother,

      and that Child’s birth certificate bears her Maternal Name. Mother further


      Court of Appeals of Indiana | Opinion 87A01-1508-JP-1164| May 11, 2016     Page 5 of 13
       testified that she married her current husband in September 2014 and that her

       last name is hyphenated, using Maternal Name as the first portion and her

       current husband’s name as the second portion. She also indicated that she uses

       the Maternal Name on her business cards and that she had no criminal record

       above an infraction.


[10]   On cross-examination, when asked if the new baby she was carrying was going

       to take the name of Maternal Name, or a hyphenated name, Mother answered

       that “[w]e’re still deciding the child’s name.” Id. at 45. When asked why she

       did not take her current husband’s name, Mother testified that she kept the

       Maternal Name because it was Child’s last name and that she kept the Maternal

       Name on her business card because she was known by that name in connection

       with her job and it was just simpler.


[11]   Following arguments by counsel, the court stated:


               I think that current state of the law basically settles the issue for
               the court. The facts of this case are very similar, I think to [In re
               Paternity of N.C.G., 994 N.E.2d 331 (Ind. Ct. App. 2013),] where
               the court of appeals unanimously reversed the Allen County
               court that refused to change the name to the father’s surname.
               Judge Baker’s opinion appears very clear as to the current state of
               the law when the father pays his child support, there is no
               evidence other than [Father] is currently current in the payment
               of his support, has been actively involved in the child’s life and
               demonstrated that he wants to solidify his bond with the child.
               Judge Baker . . . writes that . . . an examination of our evolving
               case law indicates that so long as the father pays child support,
               exercises parenting time and actively participates in the child’s
               life, then the best interest of the child may be served by giving the

       Court of Appeals of Indiana | Opinion 87A01-1508-JP-1164| May 11, 2016      Page 6 of 13
        child the father’s surname to reinforce the bond between the
        father and his non-marital child, particularly if the father is the
        non-custodial parent such as we have here. Because the father
        has paid child support, exercised parenting time, actively
        participated in NCG’S life and demonstrated that he wants his
        son to have his name to solidify the bond that father has with his
        non-custodial son, we reverse the judgment of the trial court that
        refused to grant the father’s petition.
        The father in this case in fact filed the petition to establish his
        own paternity over [Child] and has pursued his rights throughout
        the case regarding his daughter. The parties[’] relationship has
        been difficult throughout, sometimes that may be an
        understatement but has been and continues to be difficult
        between [M]other and [F]ather of [Child] here. [Father] has
        proved that the change is in [Child’s] best interest at this time.
        The court would grant [Father’s] petition for the change of name
        to [Paternal Name], and [Child’s] birth records should be
        amended to reflect the order change of the surname to [Paternal
        Name]. The court of appeals in the NCG on a subsequent page
        indicated that the change of name was a tangible reminder that a
        child has two parents, and not just one parent, I think that applies
        in this case as well especially because of the difficult relationship
        between the parties. It’s the right time to do this before [Child]
        enters public school and with the parties[’] help she should adjust
        quickly, so, I think under the current state of the law as I
        understand it to be and based upon the facts and circumstances of
        the case, [Father] has proved it is in his daughter’s best interest to
        have the change of name be done to [Paternal Name] and the
        court will grant the petition, enter the order accordingly. . . .

Id. at 55-57. The court entered a written order dated July 16, 2015, granting

Father’s request that Child’s last name be changed to the name of Paternal

Name.




Court of Appeals of Indiana | Opinion 87A01-1508-JP-1164| May 11, 2016      Page 7 of 13
                                                    Discussion

[12]   The issue is whether the trial court abused its discretion in granting Father’s

       request to change the last name of Child to the name of Paternal Name. We

       review a trial court’s order granting or denying a biological father’s request to

       change the name of a nonmarital child for an abuse of discretion. In re Paternity

       of N.C.G., 994 N.E.2d 331, 334 (Ind. Ct. App. 2013). An abuse of discretion

       occurs when the decision is clearly against the logic and effect of the facts and

       circumstances before the court. Id. Findings of fact are clearly erroneous when

       the record contains no evidence to support them directly or indirectly. Id. at

       334-335. A judgment is clearly erroneous when the findings of fact do not

       support the conclusions of law or the conclusions of law do not support the

       judgment. Id. at 335.


[13]   Mother contends that the change of Child’s name is not in Child’s best interests,

       that Father only became current on child support in May 2015 after filing his

       petition for name change, and that his support payment history was sporadic

       prior to catching up just prior to the hearing. She argues that Father has a

       criminal history, Child would be confused if her name were to change, Child

       holds property in the name of Maternal Name, and that Child is known in her

       community and school by that name. Mother further argues that “[t]here has to

       be consideration for the child’s age and whether the child’s confusion resulting

       from changing its identity would outweigh any benefit associated with

       strengthening the child’s bond with the Father,” Appellant’s Brief at 10, that

       claim preclusion applies as the parties already agreed Child’s last name was that

       Court of Appeals of Indiana | Opinion 87A01-1508-JP-1164| May 11, 2016    Page 8 of 13
       of Maternal Name in the July 20, 2011 Agreed Order Entry, and that the

       doctrine of laches applies as Father inexcusably delayed in filing his petition.

       She also claims this case presents the perfect opportunity for this court to

       impose a requirement that Father should be required to show a substantial

       change in circumstances warranting the name change similar to the standard of

       seeking to modify child support.


[14]   Father maintains that he has always exercised as much parenting time as

       allowed, he actively participates in Child’s life, he is current on his support

       payments, and that Child having Paternal Name serves her best interests.

       Father asserts that Child sharing his name reinforces her bond with him as the

       noncustodial parent, that the reinforcement is needed because of Mother’s

       repeated attempts to alienate Father from Child, that Mother has lived with

       four boyfriends since Child’s birth and has been engaged to three of them, and

       that he has had to fight to be recognized as Child’s father and for every minute

       of parenting time.


[15]   Ind. Code § 16-37-2-13 provides in part that “[a] child born out of wedlock shall

       be recorded . . . under the name of the mother; or . . . as directed in a paternity

       affidavit . . . .” “Nevertheless, a biological father seeking to obtain a name

       change of his non-marital child bears the burden of persuading the court that

       the change is in the child’s best interests. Absent evidence of the child’s best

       interests, the father is not entitled to obtain a name change.” In re Paternity of

       N.C.G., 994 N.E.2d at 335 (internal quotation marks, brackets and citation

       omitted).

       Court of Appeals of Indiana | Opinion 87A01-1508-JP-1164| May 11, 2016     Page 9 of 13
[16]   In In re Paternity of N.C.G., this Court stated:


               In what appears to be an effort to encourage a paternal
               connection with a father’s nonmarital and noncustodial child,
               recent cases have concluded that it is in the child’s best interest to
               give the child the father’s surname when certain indicators are
               present such as the father pays child support, exercises parenting
               time, and participates in the child’s life. See C.B. v. B.W., 985
               N.E.2d 340, 348 (Ind. Ct. App. 2013) (stating that “Father’s
               surname will connect the child with his non-custodial parent and
               is a tangible reminder to the child that the child has two parents
               who care for him, which is in the child’s best interests”)[, trans.
               denied]; see also Petersen v. Burton, 871 N.E.2d 1025, 1029 (Ind. Ct.
               App. 2007) (opining that “the indicators that complying with
               Father’s request [for a name change] is in the child’s best interest
               are that he does pay support, has visitation and participates in the
               life of his child”).

       Id. We further indicated that, as observed in C.B., having a father’s surname

       under certain circumstances may be in a child’s best interest because it is a

       tangible reminder that the child has two parents and that this is particularly true

       when the father is the noncustodial parent. Id. at 336 (citing C.B., 985 N.E.2d

       at 348).


[17]   In C.B., we observed that, when a surname change is sought in a paternity

       action, among other factors the trial court may properly consider are whether

       the child holds property under a given name, whether the child is identified by

       public and private entities and community members by a particular name, the

       degree of confusion likely to be occasioned by a name change, the child’s

       desires if the child is of sufficient maturity, the birth and baptismal records of


       Court of Appeals of Indiana | Opinion 87A01-1508-JP-1164| May 11, 2016      Page 10 of 13
       the child, the school records of older children, health records, and the impact of

       a name change when there are siblings involved whose names would not be

       changed. C.B., 985 N.E.2d at 343. We concluded that, “like all children, a

       child born out of wedlock is better served when he knows and is identified with

       both parents, and both parents are engaged in his upbringing” and that “[a]

       child’s surname connects the child with the parent.” Id. at 348. We held that

       the mother would “have physical custody of the child and, as such, the child

       will continue to be identified with her and will be connected with her in

       countless ways, large and small, on a daily basis” and that the father’s

       “surname will connect the child with his non-custodial parent and is a tangible

       reminder to the child that the child has two parents who care for him, which is

       in the child’s best interests.” Id.


[18]   The record reveals that, while Child was given the last name of Maternal Name

       at birth, Father filed his petition seeking to establish paternity over six months

       prior to the birth of Child, and the court subsequently entered the July 20, 2011

       Agreed Order which established Father as the father of Child, granted him

       parenting time, and ordered him to pay support of seventy-one dollars per week

       effective September 3, 2010. The July 20, 2011 and April 17, 2012 orders did

       not indicate that Father had made a request, or that the court had made a

       determination, with respect to a change of Child’s last name from that of

       Maternal Name to that of Paternal Name, and Father testified that he had

       focused on obtaining parenting time and had decided to wait until Mother was

       married to request that Child’s last name be changed.


       Court of Appeals of Indiana | Opinion 87A01-1508-JP-1164| May 11, 2016     Page 11 of 13
[19]   The record further reveals that Father consistently exercised his parenting time,

       took Child on other trips and attended Child’s games, that Father’s parents,

       grandparents, and siblings have the Paternal Name and live in the Evansville

       area, and that Father and Mother share joint legal custody of Child.


[20]   As to Father’s payment of child support, at the July 16, 2015 hearing, the court

       took judicial notice of two exhibits admitted at the May 6, 2015 hearing, one of

       which was a receipt for Father’s payment of $1,450 on May 6, 2015, to bring

       him current on his support, and the other of which contained a history of his

       support payments showing total distributions of $15,828 and that his first

       payment was made on September 1, 2011.


[21]   The court found Father was current in the payment of his support, is the

       noncustodial parent, is actively involved in Child’s life, demonstrated that he

       wants to solidify his bond with Child, and had filed the petition to establish his

       paternity and pursued his rights throughout the case. The court further

       indicated that the idea in In re Paternity of N.C.G. that a change of name was a

       tangible reminder that a child has two parents is applicable in this case and that

       it was the right time to change Child’s name before she entered public school

       and with the parties help should adjust quickly. The court found that, based

       upon the facts and circumstances of the case, Father has demonstrated it is in

       Child’s best interest to have the last name of Paternal Name.


[22]   The trial court, in the exercise of its discretion, considered the totality of the

       circumstances in determining what was in Child’s long-term best interest.


       Court of Appeals of Indiana | Opinion 87A01-1508-JP-1164| May 11, 2016      Page 12 of 13
       Based upon the factors discussed above and the evidence in the record, we

       cannot say the trial court’s decision is clearly against the logic and effect of the

       facts and circumstances before it. Accordingly, the court did not abuse its

       discretion in granting Father’s request for a name change for Child. See In re

       Paternity of N.C.G., 994 N.E.2d at 334-336 (noting the trial court had found that

       the father had been paying child support and exercised regular parenting time

       and holding that the father’s petition to change his child’s surname should have

       been granted); C.B., 985 N.E.2d at 347-348 (noting the father filed a petition to

       establish paternity, paid support, exercised visitation, participated in the life of

       the child, and shared joint legal custody of the child, and concluding that the

       father’s surname would connect the child with his noncustodial parent, which is

       in the child’s best interests).


                                                    Conclusion

[23]   For the foregoing reasons, we affirm the court’s order granting Father’s petition

       and ordering that Child’s last name shall be that of Paternal Name.


[24]   Affirmed.


       Baker, J., and May, J., concur.




       Court of Appeals of Indiana | Opinion 87A01-1508-JP-1164| May 11, 2016     Page 13 of 13
