                                                                           Sep 19 2013, 5:33 am


FOR PUBLICATION

ATTORNEY FOR APPELLANT:                         ATTORNEY FOR APPELLEE:

THOMAS C. ALLEN                                 SARA L. SEIBERT
Fort Wayne, Indiana                             Eberhard & Weimer, P.C.
                                                Angola, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

IN RE: THE PATERNITY OF:                        )
N.C.G.                                          )
                                                )
B.G.,                                           )
                                                )
        Appellant-Respondent,                   )
                                                )
               vs.                              )        No. 02A04-1301-JP-21
                                                )
N.G.,                                           )
                                                )
        Appellee-Petitioner.                    )


                      APPEAL FROM THE ALLEN SUPERIOR COURT
                         The Honorable Eve S. Scott, Judge Pro Tem
                              Cause No. 02D07-1006-JP-381



                                    September 19, 2013

                               OPINION – FOR PUBLICATION

BAKER, Judge
       In the instant case, after appellant-respondent B.G. (Father) established paternity

over his son, he and appellee-petitioner N.G. (Mother), through mediation, agreed on

almost every issue except N.C.G.’s surname, which was fervently contested. The issue of

N.C.G.’s surname was deferred until Father filed a verified petition to change his name.

After a hearing on the petition, the trial court entered findings of fact, essentially

determining that the parents were in equipoise but denying Father’s petition because the

child had been known by Mother’s surname for about two and one-half years, which was

the approximate time that the issue had been under some form of mediation between the

contentious parties.

       An examination of our evolving caselaw indicates that so long as a father pays

child support, exercises parenting time, and actively participates in the child’s life, then

the best interests of the child may be served by giving the child the father’s surname to

reinforce the bond between father and his nonmarital child, particularly if father is the

noncustodial parent. Because Father has paid child support, exercised parenting time,

actively participated in N.C.G’s life, and demonstrated that he wants his son to have his

name to solidify the bond that Father has with his noncustodial son, we reverse the

judgment of the trial court.

                                          FACTS

       N.C.G. was born on May 13, 2010. At the time of N.C.G.’s birth, he was given

Mother’s surname. On August 3, 2010, the trial court issued an order establishing

Father’s paternity. In the order, Mother was granted sole legal custody and primary

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physical custody of N.C.G., and Father was ordered to pay $155 per week in child

support. Father was granted visitation to be supervised by a third party. Father and

Mother were ordered to attend mediation for all other issues.

      On September 23, 2010, Mother and Father attended mediation and submitted a

proposed agreement to the trial court. This agreement was made an order of the trial

court on October 27, 2010. Under the agreement, Mother retained sole legal custody of

N.C.G. and Father was granted parenting time pursuant to the Indiana Parenting

Guidelines with the following limitations:

      (a) Father shall immediately enroll in a parenting class for infant care.
          Upon completion, he shall provide the Court and Mother with a copy of
          his certificate of completion.

      (b) Father shall insure he has the items needed for an infant including, but
          not limited to, a crib, mattress, car seat, toys, and high chair. Father
          shall provide Mother with a picture of said items within 10 days of the
          date of this agreement.

      (c) Until such time as Father completes his parenting class, his parenting
          time shall be each Monday and Wednesday from 5:30 p.m. to 8:30 p.m.
          at the home of Mother which shall be supervised by the maternal
          grandmother . . . and each Sunday from 5:00 p.m. to 8:00 p.m. The
          Sunday parenting time shall not be supervised and will take place
          outside Mother’s home. Father’s parenting time shall not be supervised
          after he completes his parenting class.

      (d) The above schedule will continue until the child is one (1) year old. At
          one (1) year Father shall have one (1) overnight per week on one of his
          scheduled days.

Appellant’s App. p. 14.




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         Father’s child support was modified to $120 per week effective September 24,

2010, and he was ordered to provide health insurance for the child. Father was also

ordered to pay 61% of the uninsured medical expenses. The determination of N.C.G.’s

surname was deferred.

         On May 29, 2012, Father filed his verified petition for change of name of minor

child.      On September 17, 2012, Mother filed a verified petition for contempt for

nonpayment of uninsured medical expenses.

         On December 14, 2012, the trial court held a hearing on Father’s petition for

change of name. At the beginning of the hearing, Father was served in open court with

Mother’s petition for contempt along with copies of medical bills allegedly owed by

Father. A hearing on Mother’s petition was scheduled for February 11, 2012.

         During the hearing, Father testified that he had been paying child support and

visiting with N.C.G. Tr. p. 8. Additionally, Father stated that he wanted N.C.G. to have

his surname because it would “help cement in [N.C.G’s] mind who his biological father

is.” Id.

         Mother testified that because she had “full and physical custody,” of the child, she

thought that the child’s surname should remain the same. Id. The trial court then asked

if N.C.G.’s name was the name that he was given in the hospital, to which Mother replied

that it was. Father explained that there were questions surrounding the child’s paternity

and that he had been waiting on the results of a DNA test before establishing paternity.

Id. at 9.

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       Further, Father explained that he had been trying to work with Mother for the past

two years to get N.C.G.’s name changed but that the relationship was very contentious.

Instead of refuting this claim, Mother immediately tried to negate Father’s attempt to

establish that he is involved in the child’s life. She pointed out that Father had gotten

married and had not requested the child’s presence at the wedding.

       After hearing testimony from Mother and Father, the trial court observed that

       I totally understand the father’s position regarding wanting his first-born
       son to carry his name. However, I think in light of the fact that I need to
       look at it for what’s best for the child, not what’s best for you or the
       mother, and since the child is 2 and a half years old and has gone by the
       name [N.C.G.], I think I’m going to deny, I’m going to deny the Petition
       for Change of Name and leave his name as [N.C.G.]

Tr. p. 12.

       In the trial court’s written order, it made the following findings:

       C. The Court finds that the minor child is Father’s first-born and only son.
       D. The Court finds that Father has been paying child support since 2010.
       E. The Court finds that Father has exercised regular parenting time with the
       minor child.
       F. The Court finds that the minor child is two (2) years of age and is
       Mother’s first born and her only son.
       G. The Court finds that Mother is not in agreement that the minor child’s
       surname be changed.

Appellant’s App. p. 11.

       As in open court, the trial court denied Father’s petition in the written order.

Father now appeals.




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                             DISCUSSION AND DECISION

       Father’s sole argument on appeal is that although “the court’s findings of fact were

adequately supported by evidence[,] . . . the conclusions derived from the findings of fact

are clearly erroneous” such that the trial court erred by not changing N.C.G.’s name.

Appellant’s Br. p. 6. 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 M.O.B., 627 N.E.2d 1317, 1318 (Ind. Ct. App. 1994). An abuse of discretion

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

circumstances before the court. In re Paternity of Tibbitts, 668 N.E.2d 1266, 1268 (Ind.

Ct. App. 1997). Additionally, a biological father seeking to change the name of a non-

marital child has the burden of persuading the court that the change is in the best interests

of the child. M.O.B., 627 N.E.2d at 1318.

       Here, the trial court entered findings of fact pursuant to Trial Rule 52(A), which

we may not set aside unless they are clearly erroneous. Menard, Inc. v. Dage-MTI, Inc.,

726 N.E.2d 1206, 1210 (Ind. 2000). Findings of fact are clearly erroneous when the

record contains no evidence to support them directly or indirectly. Quillen v. Quillen,

671 N.E.2d 98, 102 (Ind. 1996). 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.

       Indiana Code section 16-37-2-13 provides, in relevant part, that “[a] child born out

of wedlock shall be recorded . . . under the name of the mother.” Nevertheless, “a

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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.”

MOB, 627 N.E.2d at 1318.

       In M.O.B., paternity was established when the child was about five months old,

but a hearing was not scheduled until one year later on the contested issue of the child’s

surname. 627 N.E.2d at 1318. The mother presented evidence that United States Savings

Bonds, health insurance coverage, and a social security card had all been obtained under

her surname. Id. at 1319. The mother also stated that the child was identified in the

community, by his family, and by certain organizations by her surname. Id. Finally, the

mother asserted that she would be the parent to enroll him in school and obtain medical

treatment on his behalf and a written recommendation from a doctor stated that the child

should retain the mother’s surname. Id.

       The father, on the other hand, testified that the child was his only son and that his

surname was an honorable one that he truly wanted to have carried on. Id. On appeal, a

panel of this Court concluded:

       Father clearly failed to sustain his burden of persuasion that a name change
       was in the best interests of M.O.B. Therefore, the trial court abused its
       discretion as a matter of law when it erroneously ordered that M.O.B.
       assume Father’s surname.

Id. at 1319. Thus, the M.O.B. Panel reversed the trial court’s order changing the child’s

name to Father’s surname. Id.


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       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”); 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”).

       This Court has noted that this is conduct that society wants to encourage.

Peterson, 871 N.E.2d at 1029.        More particularly, The Petersen Panel reasoned that as

applied to that case, the father’s testimony reflected his belief that his son would feel a

greater connection to him as his father by sharing his name. Id. at 1031. Thus, the panel

affirmed the trial court’s decision to change the child’s surname to that of the father. Id.

       In the instant case, even though N.C.G. was given Mother’s name at the hospital,

Father explained that he had been trying to effect a name change almost since the child’s

birth. Tr. p. 11. Likewise, although the trial court reasoned that N.C.G. had been using

his mother’s surname for over two years, it also recognized that the issue of the child’s

surname had to be taken through a lengthy mediation process. Tr. p. 7. These facts

                                               8
highlight the contentious relationship between Father and Mother rather than the best

interests of the child.

       Furthermore, Father testified that giving N.C.G. his surname would cement the

parental bond between himself, as the noncustodial parent, and the child. Tr. p. 8. This

is unlike the father in M.O.B. who merely wanted to change his child’s surname because

it was an honorable one that he wanted to pass on. 627 N.E.2d at 1319. The distinction

is that the latter has nothing to do with the child’s best interest, but rather, concerns only

the father’s interest. Id.

       Similarly, as observed in C.B., having a father’s surname under circumstances

such as those presented in the instant case is in a child’s best interest because it is a

tangible reminder that the child has two parents. 985 N.E.2d at 348. This is particularly

true when the father is the noncustodial parent. Id. Accordingly, we conclude that the

trial court erred by not granting Father’s petition to change N.C.G.’s surname. Thus, we

reverse the trial court’s order and remand with instructions to the trial court to enter an

order changing N.C.G’s surname to Father’s surname.

       The judgment of the trial court is reversed.

FRIEDLANDER, J., and VAIDIK, J., concur.




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