IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

NIKKI LAVOIE, as Parent, Guardian,
and Next-of-Kin of SOPHIE LAVOIE
BOONE, a Minor Child,

Appellant,

)
)
)
)
§
v. ) C.A. No. N16A-01-006 FWW
§
DANIEL BOONE, )

)

)

Appellee.

Submitted: July 20, 2016
Decided: September 15 , 2016

MEMORANDUM OPINION AND ORDER

On Appeal from the Court of Common Pleas:
REVERSED and REMANDED.

Aaron C. Baker, Esquire, Baird Mandalas & Brockstedt, 6 South State Street,
Dover, Delaware 19901; Attorney for Appellant.

Gregory A. Morris, Esquire, Liguori & Morris, 46 The Green, Dover, Delaware
19901; Attorney for Appellee.

WHARTON, J.

I. INTRODUCTION

Nikki Lavoie (“Appellant”) filed a Notice of Appeal on January 18, 2016,
requesting judicial review of the December 21, 2015 decision by the Court of
Common Pleas. Appellant contends that the Court of Common Pleas abused its
discretion by denying her petition to change her daughter’s sumame.

In considering this appeal, the Court must determine whether the trial court
abused its discretion when it denied Appellant’s petition. Upon consideration of
the pleadings before the Court and the record below, the Court finds that the trial
court abused its discretion. Accordingly, the trial court’s decision is REVERSED
and the matter REMANDED to the Court of Common Pleas.

II. FACTUAL AND PROCEDURAL CONTEXT

Sophie Lavoie Boone (“Sophie”) is a six-year-old child who was born on
December 28, 2009.l Sophie is the daughter of Daniel Boone (“Boone”) and
Appellant.2 Appellant and Boone married in July 2004, and they divorced in
August 2010.3

On October 14, 2015, Appellant filed a Petition for Name Change
(“Petition”) in the Court of Common Pleas.4 Currently, Sophie’s middle name is

Lavoie, and her surname is Boone. In the Petition, Appellant sought to change

 

1Tr.at8:14-18.

2 Tr. at 9:2-7.

3 Tr. at 9:7; 35:1.

4 Appellant’s Pet. Name Change.

Sophie’s name by transferring Sophie’s middle name to her last name.5 Appellant
thus sought to have Sophie’s surname include both Lavoie and Boone.6 Appellant
contended that changing Sophie’s name would allow Sophie to identify with
Appellant’s family and would allow Sophie to preserve her relationship with
Appellant.7

On November 2, 2015, Boone filed an answer to Appellant’s Petition.8
Boone objected to Appellant’s proposed name change and contended that it would
not be in Sophie’s best interest.9

On November l6, 2015, the trial court held a hearing with respect to
Appellant’s Petition.10 Both Appellant and Boone testified. At the beginning of
the hearing, Appellant’s counsel stated that the testimony would revolve around
whether the name change would be in Sophie’s best interest.ll

Appellant testified that Sophie should have the same surname as her
custodial parent. Appellant stated she has primary residential placement of Sophie,

and she also has joint custody of Sophie with Boone.12 Appellant also stated that

 

5 ld.

6 Id.

7 Id.

8 Appellee’s Answer to Pet. Name Change.
9 Id.

10 Tr. at l.

“ Tr. at 5:13-18.

12 Tr. at 9:8-20.

Boone visits Sophie for a few hours on Tuesdays and Thursdays, and Boone has
overnight visitation with her every other weekend.13

Appellant also testified that both she and Sophie experience difficulties from
Sophie’s current sumame. For example, Appellant testified that when Boone’s
wife attempted to pick up Sophie from summer camp, the counselors could not
identify Sophie because Mrs. Boone asked for Sophie Boone, but the counselors
had listed her as Sophie Lavoie Boone.14 Apparently, this confusion occurred
because Appellant insisted on registering Sophie as “Sophie Lavoie Boone”
instead of “Sophie Boone.”15 Additionally, Appellant testified that individuals are
sometimes confused about Appellant’s relationship to Sophie because of Sophie’s
different last name.16

With respect to the effect that a name change would have on the preservation
of Sophie’s relationship with each parent, Appellant testified that a “middle name
is not considered as important as a last name.”17 Consequently, Appellant stated
that Sophie’s relationship to her mother is secondary in the minds of Sophie and
others, and therefore, Sophie’s surname should be changed to preserve her

relationship with Appellant.18

 

13 Tr. at 28:8-12.
1‘1 Tr. at 12-13.

15 Tr. at 48;9-12.
16 Tr. at 11;21-23.
11 Tr. at 32;20-23.
111 Tr. at 22:12-17.

Appellant testified that changing Sophie’s surname would allow Sophie to
identify with a larger family unit. In paiticular, Appellant testified that Sophie
would want to have a strong association with her mother and to be known in the
community as Appellant’s daughter.19 Additionally, Appellant stated that Sophie
would also want to have a strong association with her grandparents who had a
significant impact on Appellant.20 However, Appellant testified that these
associations cannot exist with Lavoie as Sophie’s middle name, and not her last
name,21

Boone testified that he does not think that anyone should change Sophie’s
name without her consent.22 Boone stated that Sophie should be able to change her
own name, if she desires to do so, when she gets older.23

On December 21, 2015, the trial court found that Sophie’s name shall not be
changed because it would not be in her best interest.24 Afcer balancing the relevant
factors, the trial court found that “although granting the Petition would
simultaneously alleviate the relatively minor inconveniences experienced by the

parents,” this change would also “detrimentally expose Sophie to the myriad

 

19 Tr. at 25;18-22

211 Tr. at 38-39.

21 ld.

22 Tr. at 46:9-18.

23 ld.

2‘1 In re Boone, c.A. No. cPU4-15-003549, at 5 (Dei. Com. Pi. Dec. 21, 2015).

5

questions and difficulties that accompany a name change at such a critical stage in
the child’s social development.”25 Appellant appeals this decision.
III. THE PARTIES’ CONTENTIONS

On May 9, 2016, Appellant filed her Opening Biief. Appellant contends that
the trial court abused its discretion in its evaluation of some of the factors relevant
to determining Sophie’s best interests.26 Appellant contends that the trial court
ignored her testimony regarding the problems she and Sophie experienced as a
result of their different surnames.27 Furthermore, Appellant argues that the trial
court failed to appreciate the importance of Sophie being able to identify with her
heritage and being able to develop her relationship with Appellant.28

Appellant also argues that the trial court abused its discretion when it drew a
conclusion that was unsupported by the record.29 Specifically, Appellant argues
that the trial court’s conclusion that changing Sophie’s surname would expose her

to “myriad questions and difficulties” is arbitrary and capricious.30

 

25 Id. at 5.

26 Appellant’s Opening Br., D.I. 12, at 7-8.
21 Id. at 7.

28 Id. at 9.

29 Id. at 7.

311 Id.

Finally, Appellant argues that Delaware precedent regarding surname
changes for minors is based upon outmoded gender prejudices, and therefore, the
Court should overrule this precedent.31

In contrast, Boone argues that the trial court did not abuse its discretion
when it balanced the relevant factors. Boone argues that the trial court based its
decision upon evidence in the record, and therefore, the trial court’s decision
should not be disturbed.32

Furthermore, Boone asserts that Appellant did not raise the argument that
the legal standard is based upon outmoded gender prejudices in the court below,
and therefore, this Court should not consider it for the first time on appeal.33

IV. STANDARD OF REVIEW

The Court reviews the Court of Common Pleas’ decision regarding a name
change petition under an abuse of discretion standard, and therefore, the trial
court’s decision will not be overturned unless its decision was arbitrary and

capricious.34

 

311d. at 12-14.

32 Appellee’s Answering Br., D.I. 14, at 4.

33 Id. at 9.

3‘1 See 111 re Marley, 1996 wL 280890, at *4 (r)ei. super. May 16, 1996).

7

V. DISCUSSION

A. The Trial Court Considered Matters Outside of the Record in Reaching
Its Conclusion.

In determining whether “the best interests of the child” would be served by

granting the proposed name change, the trial court considered the following

factors:

l. A parent’s failure to financially support the child;
2. A parent’s failure to maintain contact with the child;

3. The length of time that a surname has been used for
or by the child;

4. Misconduct by one of the child’s parents;

5. Whether the surname is different from the surname of
the child’s custodial parent;

6. The child’s reasonable preference for a surname;
7. The effect of the change of the child’s surname on the
preservation and development of the child’s

relationship with each parent;

8. The degree of community respect associated with the
child’s present surname and proposed surname;

9. The difficulties, harassment, or embarrassment that
the child may experience from bearing the present or

proposed name; and

10. The identification of the child as a part of the family

unit.35
The trial court did not address factors one, two, and four because they were
undisputed.36 With the remaining relevant factors, the trial court found the
following in its decision:

(3) the child was born almost six years ago, and has
begun to cement her identity and personality within her
friendships at school; (5) Sophie’s parents both take an
active role in raising her, however her surname differs
from Ms. Lavoie, with whom she spends a majority of
her time; . . . (7) the change of name is likely to have
little effect on the child’s relationship with either parent; .
. . (9) the Court believes the child will experience
relatively little difficulty, harassment, or embarrassment
if she retains her current surname instead of altering it;
(10) because both parents appear to be positive role
models for Sophie, who actively participate in her
schooling and upbringing this change would not affect
Sophie’s identification as part of the family unit.37

After balancing these factors, the trial court found, by a preponderance of
the evidence, that changing Sophie’s surname would not be in her best interest.38
Specifically, the trial court concluded that “although granting the Petition would
simultaneously alleviate the relatively minor inconveniences experienced by the

parents, and superficially execute Ms. Lavoie’s desire to draw Sophie closer to her

 

33 rn re Boone, C.A. No. CPU4-15-003549, at 4. see also rn re Gibbs, 2008 wL 5160141, ar *3
(Del. Com. Pl. July 9, 2008).

36 In re Boone, C.A. No. CPU4-15-003549, at 4. The trial court found that each parent provides
Sophie with financial support, maintains contact with Sophie, and has no record of relevant
misconduct

31 Id. at 4_5.

33 Id. at 5.

heritage, the change would also detrimentally expose Sophie to the myriad
questions and difficulties that accompany a name change at such a critical stage in
the child’s social development.”39

The trial court’s conclusions regarding the relatively meager benefits of
changing Sophie’s name are manifestly correct and supported by the evidence.

The inconveniences experienced by the parents are indeed minor, and the
inconveniences are to the parents, primarily Appellant, and not to Sophie,
Moreover, the most significant problem with Sophie’s current name was caused by
Appellant when she insisted that Sophie be registered at summer camp using the
name “Lavoie Boone,” instead of simply using “Boone.”

Additionally, moving Sophie’s middle name to a compound last name would
only “superficially execute Ms. Lavoie’s desire to draw Sophie closer to her
heritage.”40 Again, the trial court was correct to perceive that the real beneficiary
of the proposed name change was Appellant, rather than Sophie, since the name
change would execute Appellant’s desire to bring Sophie closer to her heritage.
The trial court was also correct to find that the name change would only

superficially accomplish Appellant’s goal, since Sophie’s Canadian-French

heritage is already reflected in Sophie’s middle name.

 

39 Id.
49 Id.

10

However, when the trial court turns to articulating the detriments of the
name change, its analysis goes astray. While the Court gives great deference to the
trial court under the standard of review appropriate here, and while the trial court
may well be correct to conclude that the name change would “detrimentally expose
Sophie to the myriad questions and difficulties,” evidence for that proposition is
absent from the record below. Because this Court cannot know how heavily the
trial court weighed this consideration, the decision below must be REVERSED as
an abuse of discretion and the matter REMANDED for the trial court to reweigh
the relevant factors.

B. Appellant Did Not Raise Her Gender Bias Issue Below, and the Trial
Court Did Not Base Its Ruling on “Outmoded Gender Prejudices.”

Appellant contends that Delaware’s continued reliance upon patriarchal
norms prevents both mothers and children “from maximizing the familial
identification provided by a shared, albeit hyphenated, sumame.”41 Thus,
Appellant argues that the Court should overrule this precedent.42

According to Super. Ct. Civ. R. 72(g), “Appeals shall be heard and
determined by the Superior Court from the record of proceedings below, except as
may be otherwise expressly provided by statute.”43 Therefore, because this

argument was not addressed below, the Court will not consider it on appeal for the

 

41 Appellant’s Opening Br., D.I. 12, at 14.
42 Id.
43 Super. Ct. Civ. R. 72(g) (emphasis added).

ll

first time. Furthermore, Appellant’s argument is based on the surmise that the trial
court applied a gender bias in its decision, a surmise that is not borne out in the
trial court’s decision.
VI. CONCLUSION
For the foregoing reasons, the Court finds that the Court of Common Pleas
abused its discretion, and therefore, its decision is hereby REVERSED and
REMANDED to the Court of Common Pleas for it to reweigh the aforementioned

factors in accordance with this decision,

IT IS SO ORDERED.

 

/ _i
Ferris W/I Wharton, Jud§e

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