                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                    May 18, 2006 Session

STATE OF TENNESSEE, ex rel., JONATHAN HULON BROWN v. JACKIE
                          LYNN ROSS

                  Direct Appeal from the Juvenile Court for Shelby County
                       No. R685    George E. Blancett, Special Judge



                     No. W2005-01730-COA-R3-JV - Filed July 25, 2006


Jonathan Hulon Brown (“Father”) appeals the trial court’s refusal to change the surname of his minor
child, born out of wedlock, from that of the minor child’s mother Jackie Lynn Ross (“Mother”) to
that of Father. For the reasons set forth below, we affirm.

   Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed; and
                                        Remanded

DAVID R. FARMER , J., delivered the opinion of the court, in which ALAN E. HIGHERS, J., and HOLLY
M. KIRBY , J., joined.

William E. Friedman, Memphis, Tennessee, for the Appellant, Jonathan Hulon Brown.

John C. Ryland, Memphis, Tennessee, for the Appellee, Jackie Lynn Ross.

                                            OPINION

                          Factual Background and Procedural History

        This case involves the surname of a child born out of wedlock to Jonathan Hulan Brown
(“Father”) and Jackie Lynn Ross (“Mother”). On June 17, 2004, Mother gave birth to the minor
child, R.A.R (“the minor child”). On July 1, 2004, an “Administrative Order for Parentage Test”
was issued by the Title IV-D Administrator of the Tennessee Department of Human Services
requiring Mother and Father to submit to DNA testing to determine parentage of the minor child.
The parentage test results were completed on August 11, 2004, and confirmed that Father was the
biological father of the minor child.

       Father subsequently filed a Petition for Visitation and on November 4, 2004, Father was
granted specific visitation with the minor child. On December 13, 2004, the State of Tennessee
and Father filed a Petition to Establish Parentage, in which Father requested the court to establish
parentage of the minor child, set child support in accordance with the Tennessee Child Support
Guidelines, and determine the surname of the minor child. On March 18, 2005, a hearing was
conducted by a juvenile referee in which the referee determined that Father was the natural father
of the minor child and awarded custody of the minor child to Mother. The referee further made
recommendations on child support and maintenance of health insurance for the benefit of the
minor child and also recommended that the surname of the minor child be changed to that of
Father. These findings and recommendations were confirmed as the decree of the Memphis and
Shelby County Juvenile Court on March 18, 2005.

         On March 22, 2005, Mother filed a Request for Hearing Before the Judge seeking a
hearing regarding matters heard by the juvenile court referee. On June 30, 2005, a hearing was
held to determine whether the minor child’s surname should be changed to that of Father.
During the hearing, Father testified that one basis for his request for a change of surname
stemmed from his belief that children should bear the last name of their father. Father also
testified that he believed it was in the best interest of the child to carry his last name.
Specifically, Father stated that his family name had a good reputation in the Memphis community
and that his family members were known for helping people out as well as being involved in
several charity events. Father also stated that his grandfather was well-known in the Memphis
area due to his service in World War II as well as for starting the first saddle club for southern
amateur horse riders. In further supporting his claim that a change of surname was in the minor
child’s best interest, Father testified that Mother was twenty years old and never married, and
should she marry and take her spouse’s last name, the minor child would share last names with
neither parent. Father also stated that changing the minor child’s surname to that of Father’s
would increase Father’s closeness with the minor child.

       On cross examination, Father testified that he would love the minor child regardless of
the minor child’s last name. Father also stated that he did not know the reputation of Mother’s
family name and could not compare the benefits of disadvantages of having either last name.
Father also testified that Mother had no brothers to carry on her father’s family name. When
questioned about the care of the minor child, Father admitted that the minor child’s medical
records were in the name of “Ross” and further acknowledged that the minor child would be
primarily under Mother’s care. When questioned about his own reputation, Father admitted that
he had been arrested for a curfew violation when he was under seventeen years of age. Mother
presented no proof at the hearing. After hearing Father’s proof, the court held that Father failed
to meet his burden of proof requiring him to show that changing the minor child’s surname
would be in the minor child’s best interest. Father Appeals.

                                         Issues Presented

        Father presents the issue of whether the trial court erred in failing to change the surname
of the minor child to that of Father. Additionally, Mother raises the issue of whether Father
should be required to pay the attorney’s fees and litigation expenses Mother has incurred in



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defending this appeal. For the reasons stated herein, we affirm the trial court and deny Mother’s
request for attorney’s fees.

                                       Standard of Review

        In matters heard by a trial judge sitting without a jury, our review of the trial court’s
findings of fact is de novo upon the record, accompanied by a presumption of correctness. Tenn.
R. App. P. 13(d) (2005). We will not reverse the trial court’s factual findings unless the evidence
in the record preponderates against those findings. Jahn v. Jahn, 932 S.W.2d 939, 941 (Tenn. Ct.
App. 1996). A trial court’s conclusions on questions of law are reviewed de novo, but without
any presumption of correctness. Id. (citing Union Carbide Corp. v. Huddleston, 854 S.W.2d 87,
91 (Tenn. 1993)).
                                                Analysis

                                     Change of Surname
       Section 68-3-305 of the Tennessee Code provides as follows:

               (b)(1) If the mother was not married at the time of either conception or birth
       or between conception and birth, the name of the father shall not be entered on the
       certificate of birth and all information pertaining to the father shall be omitted, and
       the surname of the child shall be that of either:
               (A) The surname of the mother;
               (B) The mother’s maiden surname; or
               (C) Any combination of the surnames listed in subdivisions (b)(1)(A) and
       (b)(1)(B)
               ....
               (c) In any case in which paternity of a child is determined by a court of
       competent jurisdiction, the name of the father and surname of the child shall be
       entered on the certificate of birth in accordance with the finding and order of the
       court.

Tenn. Code Ann. § 68-3-305(b)(1) & (c) (Supp. 2005).

       In determining whether the surname of a child born out of wedlock should be
subsequently changed from that of the mother, this Court has held that

       [t]he courts should not change a child’s surname unless the change promotes the
       child’s best interests. . . . Among the criteria for determining whether changing a
       child’s surname will be in the child’s best interest are: (1) the child’s preference,
       (2) the change’s potential effect on the child’s relationship with each parent, (3)
       the length of time the child has had its present surname, (4) the degree of
       community respect associated with the present and proposed surname, and (5) the
       difficulty, harassment, or embarrassment that the child may experience from


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        bearing either its present name or its proposed surname. . . . The parent seeking to
        change the child’s surname has the burden of proving that the change will further
        the child’s best interests.

Barabas v. Rogers, 868 S.W.2d 283, 287 (Tenn. Ct. App. 1993) (citations omitted).

        In the case at bar, the only evidence submitted by Father on his behalf consisted of his
own personal testimony as well as an obituary for Father’s grandfather.1 In testifying regarding
the potential effect that changing the minor child’s surname would have on the minor child’s
relationship with each parent, Father stated that changing the minor child’s surname to Father’s
surname would increase Father’s closeness with the minor child. However, the record reflects
that Father presented no evidence regarding the effect on the relationship between the minor
child and Mother should the minor child’s surname be changed, and further admitted on cross-
exam that he would love the minor child the same regardless of the minor child’s last name. In
regard to family reputation, Father testified that his family had a good name in the Memphis area
and were well known for participating in several charity events. However, Father presented no
evidence regarding the community respect associated with Mother’s surname and further
admitted on cross-examination that he could not compare the benefits and disadvantages of
having either his or Mother’s surname. Furthermore, although Father asserts on appeal that the
length of time that the minor child has had Mother’s surname is moot because the minor child is
too young to realize the significance of his surname, Father did state at trial that the minor child
was listed as having Mother’s surname on all of his medical records, and further admitted that
the minor child would be primarily in Mother’s care.

        After reviewing the record in this case, we cannot say that the evidence preponderates
against the trial court’s finding that Father failed to carry the requisite burden of proof to
establish that changing the minor child’s surname would be in the best interest of the minor
child. Accordingly, we affirm.

                                                       Attorney Fees

         In her brief, Mother argues that Father should be required to pay attorney fees and
litigation expenses that Mother has incurred in defending this appeal. Although not specifically
cited in her brief, Mother appears to assert entitlement to attorney fees under section 27-1-122 of
the Tennessee Code, which provides as follows:

        When it appears to any reviewing court that the appeal from any court of record was
        frivolous or taken solely for delay, the court may, either upon motion of a party or of
        its own motion, award just damages against the appellant, which may include, but



        1
            W e find it unnecessary to address the propriety of the trial court in admitting the obituary into evidence in this
case.

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       need not be limited to, costs, interest on the judgment, and expenses incurred by the
       appellee as a result of the appeal.

Tenn. Code Ann. § 27-1-122 (2000). After reviewing the record in this case, we decline to hold
that this is a frivolous appeal. Accordingly, we decline to award Mother attorney fees in this
matter.

                                           Conclusion

       For the reasons stated above, we affirm the trial court and decline to award Mother
attorney fees in this matter. Costs of this appeal are assessed against Appellant, Jonathan Hulon
Brown, and his surety, for which execution may issue if necessary.



                                                      ___________________________________
                                                      DAVID R. FARMER, JUDGE




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