       IN THE COURT OF APPEALS OF TENNESSEE
                   AT NASHVILLE
                                                    FILED
                                                    January 16, 1998

                             )                      Cecil W. Crowson
IN RE:                       )   Davidson Probate Appellate Court Clerk
                             )   No. 97P-83
AMELIA JEAN DOWLING          )
a/k/a                        )
AMELIA JEAN BERLE,           )   Appeal No.
a minor                      )   01A01-9706-PB-00268
                             )




     APPEAL FROM THE DAVIDSON COUNTY PROBATE COURT
                  NASHVILLE, TENNESSEE

          THE HONORABLE FRANK G. CLEMENT, JR., JUDGE




For Plaintiffs/Appellants:            Guardian Ad Litem:

Bridgett A. Wohlpart                  Marlene Eskind Moses
Nashville, Tennessee                  Eisenstein, Moses & Mossman
                                      Nashville, Tennessee




                   REVERSED AND REMANDED




                                 WILLIAM C. KOCH, JR., JUDGE
                                 OPINION

      This appeal involves the efforts of parents to change the surname of their infant
child. The parents used the father’s surname on the child’s birth certificate because
the hospital in which the child was born refused to place the surname chosen by the
parents on the child’s birth certificate. The parents then filed a petition in the
Davidson County Probate Court seeking to change the child’s surname. Following
a bench trial, the probate judge denied the petition after determining that the parents
had failed to demonstrate that changing the child’s surname was in her best interests.
This court appointed a guardian ad litem to represent the child’s interests on appeal
independently of her parents. The parents have demonstrated that changing their
daughter’s surname to the one they have chosen for her is in the child’s best interests.
Accordingly, we reverse the probate court’s dismissal of the petition to change the
child’s surname.


                                           I.


      Cynthia Joan Cyrus and Thomas Benjamin Dowling are married and reside in
Davidson County. Ms. Cyrus has elected to retain her maiden name for professional
reasons. In 1996, after learning that Ms. Cyrus was pregnant with their first child, the
couple decided against giving the child either of their surnames or a hyphenated form
of their surnames. Instead, they decided to give their child the surname of “Berle”
which was the surname of Mr. Dowling’s maternal grandfather. They also decided
that they would give any other children they had in the future the same surname.


      Their daughter was born at St. Thomas Hospital in Nashville on August 30,
1996. Mr. Dowling and Ms. Cyrus requested that the name “Amelia Jean Berle” be
placed on their daughter’s birth certificate, but the hospital personnel declined to
process the documents unless Mr. Dowling and Ms. Cyrus used either of their
surnames or a hyphenated combination of their surnames. Ms. Cyrus and Mr.
Dowling decided to put the name “Amelia Jean Dowling” on their daughter’s birth
certificate and to petition to have their daughter’s surname changed to the one they
had originally chosen.




                                          -2-
       Notwithstanding the name on her birth certificate, the child has been known as
Amelia Jean Berle. Her birth announcements refer to her as Amelia Jean Berle,1 her
parents and family have consistently referred to her as Amelia Jean Berle, and she has
received gifts in the name of Amelia Jean Berle. The child is also identified by this
name on her medical and insurance records.


       On January 16, 1997, Ms. Cyrus and Mr. Dowling filed a petition in the
Davidson County Probate Court seeking to change their daughter’s surname from
Dowling to Berle. The probate court conducted a hearing on January 21, 1997 and
declined to grant the petition. Following a second hearing on March 18, 1997, the
trial court again declined to change the child’s surname, reasoning that “the proposed
name change is not in the best interest of the child and does not comply with the
requirements of Tenn. Code Ann. Section 68-3-305.”


       Ms. Cyrus and Mr. Dowling appealed the probate court’s denial of their
petition to this court. We appointed an attorney with special expertise in domestic
relations matters to serve as the child’s guardian ad litem and to represent the child
before this court. The guardian ad litem has filed a carefully researched brief
concluding that the child’s interests would be served best by changing her surname
from Dowling to Berle.


                                               II.


       We turn first to the probate court’s conclusion that the parents’ request to
change their child’s surname from Dowling to Berle is inconsistent with Tenn. Code
Ann. § 68-3-305 (Supp. 1997). In the trial court’s view, this statute reflects a
considered policy decision by the General Assembly that parents should be required
to give their children a surname based on their own surnames. We have concluded
that the probate court read too much into Tenn. Code Ann. § 68-3-305.


       Tenn. Code Ann. § 68-3-305 is part of the Vital Records Act of 1977.2 The
purpose of this Act is to collect and maintain records “such as will aid the public


       1
        The child’s birth announcement notes that she “gets her last name from Tom’s maternal
grandfather, a Norwegian, and is proudly Scandinavian on her mom’s side as well.”
       2
           See Tenn. Code Ann. §§ 68-3-101, -510 (1996 & Supp. 1997).

                                              -3-
health of the state, and furnish and preserve evidence affecting personal and property
rights of the individual citizen.” See Tenn. Code Ann. § 68-3-201 (1996). Because
the Act itself provides a procedure for filing an amended birth certificate containing
a new name, see Tenn. Code Ann. § 68-3-203(c) (1996), recording an amended birth
certificate is entirely consistent with the purposes of the Vital Records Act. As a
matter of statutory construction, filing an amended birth certificate changing an infant
child’s surname is not inconsistent with the public health or with the personal and
property rights of individual citizens.


      In order to assure the collection of needed information about live births, Tenn.
Code Ann. § 68-3-301(a) (1996) requires the preparation and filing of a certificate of
birth within ten days of a child’s birth. Tenn. Code Ann. § 68-3-302(a) (Supp. 1997)
requires the institution where the child is born to obtain the required personal data,
to prepare the certificate, to secure the required signatures, and to file the certificate.
Tenn. Code Ann. § 68-3-305(a) (Supp. 1997) prescribes the surname that must be
placed on the birth certificate of a child born to married parents. It states:

                     If the mother was married at the time of either
              conception or birth, or anytime between conception and
              birth, to the natural father of the child, the name of the
              father shall be entered on the certificate and the surname of
              the child shall be entered on the certificate as that of the
              natural father, except that where the mother though married
              has retained the mother’s maiden surname, then on sworn
              application of both parents, the child’s surname to be
              entered on the birth certificate may be the maiden surname
              of the child’s mother, or both surnames as the parents
              mutually agree.


       When courts are called upon to construe a statute, they must endeavor to give
effect to the statute’s purpose without unduly restricting or expanding its coverage
beyond its intended scope. See Hicks v. State, 945 S.W.2d 706, 707 (Tenn. 1997);
Riggs v. Burson, 941 S.W.2d 44, 54 (Tenn. 1997). They must also construe statutory
terms using their ordinary meaning, see Pursell v. First Am. Nat’l Bank, 937 S.W.2d
838, 840 (Tenn. 1996); Carson Creek Vacation Resorts, Inc. v. Department of
Revenue, 865 S.W.2d 1, 2 (Tenn. 1993), and must presume that a statute’s plain and
ambiguous language means what it says. See Perry v. Sentry Ins. Co., 938 S.W.2d
404, 406 (Tenn. 1996); Worrall v. Kroger Co., 545 S.W.2d 736, 738 (Tenn. 1977).
The courts must also interpret statutes in a way that sustains rather than defeats their

                                           -4-
constitutionality. See Ellenburg v. State, 215 Tenn. 153, 157-58, 384 S.W.2d 29, 31
(1964); Illinois Cent. & St. L. R.R. v. Crider, 91 Tenn. 489, 506, 19 S.W. 618, 622
(1892).


       The parents in this case have explicitly declined to challenge the
constitutionality of Tenn. Code Ann. § 68-3-305(a) even though similar statutory
restrictions on the parents’ choice of their child’s surname have been found to
interfere with the parents’ fundamental liberty interests protected by the Due Process
Clause of the Fourteenth Amendment.3 Thus, this case does not require us to
consider the constitutionality of Tenn. Code Ann. § 68-3-305(a). However, we
should still endeavor to construe the statute in a way that insulates it from
constitutional attack and that advances the purposes of the Vital Records Act of 1977.
We can accomplish both goals by giving effect to the statute’s plain meaning.


       The statute relates only to the name to be placed on an infant’s birth certificate.
It does not, either explicitly or implicitly, extend to the parents’ ultimate choice of a
surname for their child. Compliance with the requirements of Tenn. Code Ann. § 68-
3-305(a) satisfies the need for maintaining accurate vital records but does not
foreclose the parents from then formally changing their child’s surname to one of
their choosing. A later change of the child’s surname, done in accordance with the
applicable law, is not inconsistent with the purposes of the Vital Records Act. The
amended birth certificate creates a documentary record that will avoid any future
confusion concerning the child’s parentage because, in the case of a child born to
married parents, it contains the names of both parents.


       Accordingly, we reject the probate court’s interpretation of Tenn. Code Ann.
§ 68-3-305(a) because it places the statute on a collision course with the Due Process
Clause of the Fourteenth Amendment and with Tenn. Const. art. I, § 8. In addition,
the probate court’s conclusion that Tenn. Code Ann. § 68-3-305(a) restricts the
parents’ ultimate choice of their child’s surname is not supported by the statute’s
plain language or legislative history.

       3
         See Sydney v. Pingree, 564 F. Supp. 412, 413 (S.D. Fla. 1982); Jech v. Burch, 466 F. Supp.
714, 721 (D. Hawaii 1979); O’Brien v. Tilson, 523 F. Supp. 494, 495 (E.D.N.C. 1981); D’Ambrosio
v. Rizzo, 425 N.E.2d 369, 370 (Mass. App. Ct. 1981); M.D. v. A.S.L., 646 A.2d 543, 544 (N.J. Super.
Ct. Ch. Div. 1994); but see Henne v. Wright, 904 F.2d 1208, 1215 (8th Cir. 1990); Brill v. Hedges,
783 F. Supp. 340, 346 (S.D. Ohio 1991); Robertson v. Pfister, 523 So.2d 678, 679 (Fla. Dist. Ct.
App. 1988).

                                               -5-
                                          III.


      We turn next to the probate court’s conclusion that it is not in the child’s best
interest to permit her parents to change her surname to that of her father’s maternal
grandfather. The probate court did not explain the basis for its conclusion other than
to state that it was “very conservative of changing the name of any child.” With no
proof in the record that changing the child’s surname is not in the child’s best
interests, we are at a loss to understand the basis for the probate court’s conclusion.
We find that the evidence, which is entirely favorable to the parents’ request, does not
support the probate court’s conclusion.


      In cases involving a dispute between the biological parents concerning the
child’s surname, we have held that the parent desiring to change the name bears the
burden of proof. See Barabas v. Rogers, 868 S.W.2d 283, 287 (Tenn. Ct. App. 1993);
Halloran v. Kostka, 778 S.W.2d 454, 456 (Tenn. Ct. App. 1988); In re Brown, App.
No. 01A01-9704-JV-00148, 1997 WL 638278, at *1 (Tenn. Ct. App. Oct. 17, 1997)
(No Tenn. R. App. P. 11 application filed). The parents assert that this burden of
proof is inapplicable when natural parents agree on a child’s surname and that the
courts should intervene only when the surname chosen by the parents poses a
substantial harm or threat of substantial harm to the child. We find that the burden
of going forward with the evidence and the burden of persuasion should remain the
same notwithstanding the marital status of the parents. However, when the natural
parents have agreed on a surname, we find that the best interests analysis must be
undertaken in light of the parents’ fundamental interests in giving their child a
surname of their own choosing.


      Ms. Cyrus and Mr. Dowling demonstrated that their choice of their daughter’s
surname is in her best interests. Their decision was neither hasty nor ill-considered.
They wished to avoid choosing one of their surnames over the other and to avoid
using a cumbersome hyphenated name. Accordingly, they settled on the surname of
“Berle” five months before their daughter was born. The surname itself will not
cause the child to be held up to public disrepute or ridicule, and it actually has a
demonstrable connection with Mr. Dowling’s family.




                                          -6-
      Mr. Dowling and Ms. Cyrus are in complete agreement concerning this
surname, not only for their daughter but also for any other children they may have.
They have also decided to continue to call their daughter Amelia Jean Berle even if
their petition to change the child’s name is denied. Thus, the child will effectively
have two names if the petition is denied, thereby creating a much more cumbersome
and confusing situation not only for the child but for others dealing with the child.
The child has been known by the surname of “Berle” ever since her birth. In fact, the
only two instances where she has not been referred to as Amelia Jean Berle are on her
birth certificate and in the caption of her parents’ petition to change her name.


      There was some speculation during oral argument that the probate court may
have taken judicial notice of the potential harm that might be caused if the child’s
surname is not the same as her mother’s or father’s. Concerns were expressed
regarding interference with the child’s connection with her family heritage, the
possibility that others might assume that she was born out-of-wedlock, and the
possibility that she would be subjected to ridicule because she did not share her
parents’ name. Concerns were also expressed about confusion over the child’s
identity and uncertainty regarding her legal rights, status, or obligations. The record
contains no evidence that any of these possibilities may or are likely to occur.


      While Tenn. R. Evid. 201 permits the courts to take judicial notice of facts, it
does not equip the courts with crystal balls or authorize the courts to superimpose
their personal preferences over those of the litigants. In order to be judicially noticed,
a fact must be generally known within the territorial jurisdiction of the court or must
be capable of accurate and ready determination by resort to sources whose accuracy
cannot reasonably be questioned. See Tenn. R. Evid. 201(b). The possible effects on
this child of having the surname “Berle” rather than “Dowling” until she reaches the
age of majority cannot be known, let alone judicially noticed.


      The record contains no evidence that granting the parents’ petition to change
their daughter’s name would not be in the child’s best interests. In contrast, Mr.
Dowling and Ms. Cyrus have presented evidence that their daughter’s interests will
be served by permitting her legal identity to match her actual identity. Accordingly,
we find that Ms. Cyrus and Mr. Dowling have carried their burden of proving that it
is in their daughter’s best interests to change her name to Amelia Jean Berle.


                                           -7-
                                         IV.


      We reverse the judgment and remand the case to the probate court for the entry
of an order granting the petition to change the child’s name. We also tax the costs of
this appeal jointly and severally to Cynthia J. Cyrus and Thomas B. Dowling and
their surety for which execution, if necessary, may issue.




                                               ______________________________
                                               WILLIAM C. KOCH, JR., JUDGE


CONCURS:


__________________________________
BEN H. CANTRELL, JUDGE



DISSENTS IN SEPARATE OPINION:

HENRY F. TODD, PRESIDING JUDGE
MIDDLE SECTION




                                         -8-
