               In the Missouri Court of Appeals
                                 Western District

STATE OF MISSOURI ex rel. N.N.H.,  )
By His Next Friend, R.S.A.,        )
                            Relator,
                                   )                 WD79773
v.                                 )
                                   )
HONORABLE R. MICHAEL WAGNER,       )                 FILED: November 29, 2016
JUDGE, 17th JUDICIAL CIRCUIT,      )
CASS COUNTY, MISSOURI,             )
                       Respondent. )

                  ORIGINAL PROCEEDING IN PROHIBITION

       BEFORE WRIT DIVISION: LISA WHITE HARDWICK, PRESIDING JUDGE,
             KAREN KING MITCHELL AND GARY D. WITT, JUDGES

      N.N.H. (Relator), by and through his next friend, R.S.A., filed a writ petition

seeking to prohibit the Honorable R. Michael Wagner, judge of the 17th Judicial

Circuit Court of Missouri (Respondent), from enforcing his order that Relator submit

to a mental examination in relation to his request for a name change. We issued a

preliminary writ of prohibition, which we now make absolute.


                          FACTUAL AND PROCEDURAL HISTORY

      Relator is a transgender minor whose gender identity is male. In July 2015,

Relator filed a petition for change of name through his next friend, R.S.A., his
biological mother. The petition sought to change his name from Natalie to Nathan.

Additionally, R.S.A. filed a consent to change of name.

      On August 13, 2015, Respondent requested to speak with counsel for

Relator in chambers. Respondent informed counsel that he would require the

appointment of a guardian ad litem before setting the matter for a hearing. After

Relator refused to consent to the appointment of a guardian ad litem, Respondent

scheduled a hearing date.

      At the hearing, Relator testified that he was fourteen years old and desired

to change his name to Nathan. He felt the name change was in his best interest

and would not be detrimental to the interests of any other person. He also stated

that his father was deceased. R.S.A. testified that Relator had gone by the name

Nathan for approximately two years and was known by that name at school. She

stated that the requested name change was in Relator’s best interest and would

not be detrimental to the interests of any other person.

      Following the testimony, Respondent engaged in colloquy with counsel,

Relator, and R.S.A. Respondent restated his desire to appoint a guardian ad litem

and confirmed that Relator was opposed to such appointment. In response to

Respondent’s question as to whether the name change was “the child’s idea,”

Relator responded, “Yes, this is fully my idea.” Respondent then stated that,

without a guardian ad litem, he would need more information to determine whether

the name change was in the child’s best interest. Respondent ordered Relator to

submit to a mental examination, stating:

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      I wanted a guardian ad litem appointed to do that investigation, but
      that wasn’t -- again, that was objected to and that’s your guys’ right
      to object, so what I am going to do is order that the child submit to a
      mental evaluation . . . .

      Relator subsequently filed a writ petition to prohibit Respondent from

enforcing his order that Relator submit to a mental examination. Alternatively,

Relator filed a petition for writ of mandamus to require Respondent to enter a

judgment granting the name change. We issued a preliminary writ of prohibition.

                                 STANDARD OF REVIEW

      The extraordinary remedy of a writ of prohibition is available:

      (1) to prevent the usurpation of judicial power when the trial court
      lacks authority or jurisdiction; (2) to remedy an excess of authority,
      jurisdiction or abuse of discretion where the lower court lacks the
      power to act as intended; or (3) where a party may suffer irreparable
      harm if relief is not granted.

State ex rel. Mo. Pub. Def. Comm’n v. Pratte, 298 S.W.3d 870, 880 (Mo. banc

2009). “‘Prohibition may be used to ‘undo’ acts done in excess of a court’s

authority ‘as long as some part of the court’s duties in the matter remain to be

performed’ and may be used ‘to restrain further enforcement of orders that are

beyond or in excess of a [court’s] authority. . . .’” Id. (quoting State ex rel.

Robinson v. Franklin, 48 S.W.3d 64, 67 (Mo. App. 2001)).

      Relator has the burden of establishing that Respondent exceeded his

jurisdiction and that no adequate remedy is available by way of appeal. State ex

rel. Rosenberg v. Jarrett, 233 S.W.3d 757, 760 (Mo. App. 2007). Whether the




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Respondent has exceeded his authority is a question of law, which we review

independently. Pratte, 298 S.W.3d at 881.

                                                ANALYSIS

          In Point I, Relator contends Respondent exceeded his judicial authority when

he sua sponte ordered Relator to submit to a mental examination in a name change

action in contravention of Rule 60.01 and Section 510.040.1

          A minor’s name may be changed through the minor’s petitioning, by and

through a next friend, pursuant to Section 527.270 and Rule 95. Once a proper

petition is filed, “it shall be the duty of the judge . . . to order such change to be

made . . . if such judge is satisfied that the desired change would be proper and

not detrimental to the interests of any other person.” § 527.270. See also Rule

95.04. The circuit court’s scope of discretion to deny a petition for a name change

is narrow. In Re Wheat, 794 S.W.2d 710, 712 (Mo. App. 1990). “A general

concern of possible detriment is insufficient to deny a petition for change of name

in light of the obvious legislative intent that such a procedure be available.” Neal v.

Neal, 941 S.W.2d 501, 502-03 (Mo. banc 1997).

          At the evidentiary hearing, Respondent expressed concerns as to whether

Relator’s requested name change was in his best interest. In response to these

alleged concerns, Respondent ordered Relator to submit to a mental examination.

Rule 60.01(a)(1) allows the court to order a mental examination in certain

circumstances:


1
    All statutory citations are to the Revised Statutes of Missouri 2000.

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             In an action in which the mental condition, physical condition,
      or blood relationship of a party . . . is in controversy, the court in
      which the action is pending may order the party . . . to submit to
      physical, mental, or blood examinations by physicians or other
      appropriate licensed health care providers . . . .

(Emphasis added.) If the mental condition of a party is in controversy, the court

may order a mental examination “only on motion for good cause shown, upon

notice to the person against whom the order is sought and to all other parties.”

Rule 60.01(a)(3). Similarly, Section 510.040 also allows the court to order a

mental examination in an action in which a party’s mental condition is in

controversy, good cause is shown, and notice is given to the party to be examined

and to all other parties.

      In this case, Respondent acted in contravention of Rule 60.01 and Section

510.040 by failing to establish that Relator’s mental condition was in controversy.

Respondent argues that Relator’s mental condition was in controversy because

“the testimony and demeanor of [Relator]” raised questions as to whether the child

was being coerced to pursue the name change. Respondent further contends that,

whether a party’s mental condition is in controversy is “determined by the

credibility and demeanor of the witnesses during the trial.” A party’s credibility,

however, is a collateral issue that does not satisfy the requirement of putting the

party’s mental condition “in controversy” under Rule 60.01. See State ex rel. C.S.

v. Dowd, 923 S.W.2d 444, 449 (Mo. App. 1996).

      For a party’s mental condition to be “in controversy,” the condition must be

“‘directly involved in some material element of the cause of action or defense.’”

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Id. at 448 (citation omitted). When the pleadings have not put a party’s mental

condition at issue, it must be affirmatively shown that the party’s mental condition

“‘is really and genuinely in controversy and that good cause exists for ordering

each particular examination.’” Brooks v. Brown, 744 S.W.2d 881, 882 (Mo. App.

1988) (quoting Schlagenhauf v. Holder, 379 U.S. 104, 118 (1964)). The rule

requires a “greater showing of need than relevancy.” Id.

      Respondent asserts in his brief that his concerns about Relator’s mental state

were “clearly expressed on the record.” We disagree. Respondent’s concerns

were merely conclusory statements and, as such, were insufficient to create a

controversy with regard to Relator’s mental condition in an action seeking a name

change. See Brooks, 744 S.W.2d at 882. Pursuant to Section 527.270 and Rule

95.04, Missouri citizens are permitted have their name changed upon proof that

the name change would be proper and would not be detrimental to any other

person. The mental state of the party requesting the name change does not

directly relate to any material element of the cause of action. Accordingly,

Respondent has failed to demonstrate that Relator’s mental condition was in

controversy and, therefore, that he had the authority to order a mental

examination.

      Moreover, we note that the plain language of Rule 60.01 and Section

510.040 authorizes the court to order a mental examination only upon the filing of

a motion and after notice is provided to the parties. These provisions do not

authorize Respondent to order a mental examination on his own accord without

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notice. In this case, no motion was filed to request that Relator undergo a mental

examination and no notice was provided to Relator. Thus, Respondent exceeded

the scope of his authority under Rule 60.01 and Section 510.040 by sua sponte

entering the order requiring Relator to submit to a mental examination.

          Respondent asserts that he was authorized to order a mental evaluation on

his own motion because he was sitting as a family court judge under Chapter 487.

Section 487.010 establishes family courts in the 7th, 13th, 16th, 21st, 22nd, and

31st Judicial Circuits. While Section 487.010 also contemplates a process by

which other circuits may designate a family court within their circuit, there is no

evidence in the record that the 17th Judicial Circuit has designated such a court.

Thus, Respondent’s reliance on Chapter 487 is misplaced.

          Finally, during oral argument Respondent argued for the first time that he had

authority to order a mental examination pursuant to Rule 52.02(k).2 This rule

allows the court to inquire into the mental or physical condition of a party in order

to determine whether a guardian ad litem or next friend should be appointed to

protect the party’s own interests. Rule 52.02(k) is inapplicable in this case, where




2
    Rule 52.02(k) provides:

          Next Friend or Guardian Ad Litem for Mentally or Physically Infirm. Whenever it shall
          be suggested or affirmatively appear to the court that any person not having a duly
          appointed guardian is incapable by reason of mental or physical infirmity of
          instituting suit or of properly caring for the person's own interests in any litigation
          brought by or against such person, the court shall inquire into the person’s mental or
          physical condition for the purpose of the particular litigation and shall hear and
          determine such issue. If it is found to be proper for the protection of the person, the
          court may appoint a next friend or guardian ad litem for said person for the purpose
          of the particular litigation.

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R.S.A. already serves as Relator’s next friend. Furthermore, the rule does not

permit the court to order a party to submit to a mental examination.

      A preliminary order in prohibition should be made absolute when a relator

can establish that the circuit court clearly exceeded its authority in ordering a

mental examination under applicable law. Dowd, 923 S.W.2d at 449-50. Here,

the record indicates that Respondent did not comply with the provisions of Rule

60.01 and Section 510.040 in ordering Relator to submit to a mental examination

and, therefore, exceeded his authority. Relator’s Point I is granted, and our

preliminary writ is made absolute to prohibit enforcement of the order.

      In Point II, Relator contends Respondent’s order constitutes unlawful

discrimination based on Relator’s sex. Because we hold that Respondent exceeded

his authority under Point I, we need not address Relator’s constitutional arguments

raised in Point II. In Point III, Relator contends he is entitled to a writ of mandamus

requiring Respondent to enter judgment in the name change action. Because we

did not grant a preliminary writ on the alternative request for mandamus relief, we

will not address the arguments raised in Point III.

                                     CONCLUSION

      Our preliminary order is made absolute to prohibit Respondent from enforcing

his order for a mental examination. Relator’s request for sanctions is denied.



                                        ____________________________________
                                        LISA WHITE HARDWICK, JUDGE
ALL CONCUR.

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