Opinion issued October 6, 2015




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-15-00081-CV
                           ———————————
                     JULIE ANN ANDERSON, Appellant
                                        V.
                 ANTHONY DOUGLAS DAINARD, Appellee


                   On Appeal from the 308th District Court
                            Harris County, Texas
                      Trial Court Case No. 2012-29667


                                OPINION
      The trial court granted Anthony Dainard’s request to change the surname of

his daughter, A.A.A., from her mother’s surname, Anderson, to his own. The

mother, Julie Ann Anderson, argues in a single issue on appeal that the trial court
abused its discretion because insufficient evidence supports the trial court’s

judgment granting the name change. We affirm.

                                   Background

      Anderson and Dainard had a brief romantic relationship but never married.

After their relationship ended, Anderson told Dainard that she was pregnant with

his child.   Dainard questioned whether Anderson was pregnant and asked

Anderson to consent to a test to establish his paternity, but Anderson did not

consent.

      In April 2012, Anderson gave birth to A.A.A. and gave her the surname

“Anderson.” Some months later, the Office of the Attorney General of Texas filed

a parentage and child support action against Dainard. The trial court ordered

parentage testing, and Dainard was established as A.A.A.’s biological father.

      When A.A.A. was 6 months old, Anderson and Dainard agreed to temporary

orders that established Dainard’s parentage and named Dainard and Anderson joint

managing conservators of A.A.A., with Anderson having the right to maintain

A.A.A.’s primary residence in Harris or any contiguous county.          The agreed

temporary orders required Dainard to pay guidelines child support and provide

health insurance. They also gave Dainard limited visitation of A.A.A.

      After entry of the temporary orders, Dainard retained counsel and filed a

Suit Affecting the Parent-Child Relationship, by which he sought to change



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A.A.A.’s surname to Dainard. This suit was consolidated with the original action,

and trial was delayed somewhat due, in part, to Anderson’s desire to refer the case

to a district court. The parties attended an unsuccessful mediation in June 2013,

but their second mediation in June 2014 was more fruitful: Anderson and Dainard

entered into a Mediated Settlement Agreement that resolved all issues except for

the dispute over A.A.A.’s surname.

      The parties proceeded to a trial on that issue in July 2014. On the day of

trial, the parties proved up the Mediated Settlement Agreement, which established

Anderson and Dainard as joint managing conservators and required Dainard to

continue to pay child support and maintain health insurance for A.A.A. The MSA

also provided for a “step-up” visitation plan that would, over time, become a

standard possession order. Both Anderson and Dainard testified that they believed

that these agreements were in A.A.A.’s best interest.

      After approving the MSA, the trial court heard testimony from both

Anderson and Dainard regarding the name change. Dainard testified that he saw

A.A.A. regularly and believed it was in A.A.A.’s best interest to have his surname,

because A.A.A. lived primarily with Anderson, and giving A.A.A. the Dainard

surname would help create a bond between A.A.A. and Dainard.               Dainard

conceded on cross-examination, however, that he would “love [A.A.A.] all the

same whatever her name is” and that he could bond with her regardless of her



                                         3
name.     He also acknowledged that neither surname would cause her any

embarrassment.

        Anderson testified that A.A.A spent approximately 90% of her time with

Anderson during the first 26 months of her life. She testified that A.A.A. is aware

of her last name, can speak her full name, and has always used the surname

Anderson at her doctor’s office and daycare. Anderson also testified that A.A.A. is

close to Anderson’s mother, who also uses the surname Anderson. Anderson

testified that she would not change her own surname even if she married, and that

she believed it was in A.A.A.’s best interest to keep her surname. Anderson

testified that keeping A.A.A.’s surname would be less confusing and could give

A.A.A. some confidence, but she acknowledged that A.A.A. knows that Dainard is

her father and that changing A.A.A.’s name to Dainard would not change A.A.A.’s

relationship with Anderson.

        The trial court granted the name change, and its final judgment ordered that

A.A.A. should have her surname legally and officially changed to Dainard for all

purposes. Anderson timely appealed.

                                      Discussion

        In her sole issue on appeal, Anderson contends that the trial court abused its

discretion by ordering A.A.A.’s surname changed because the evidence is legally




                                           4
and factually insufficient to show that the name change is in the child’s best

interest.

A.     Standard of Review

       We review a trial court’s ruling on a request to change the name of a child

for an abuse of discretion. In re A.E.M., 455 S.W.3d 684, 689 (Tex. App.—

Houston [1st Dist.] 2014, no pet.); In re Guthrie, 45 S.W.3d 719, 723 (Tex. App.—

Dallas 2001, pet. denied). A trial court abuses its discretion when it acts in an

arbitrary or unreasonable manner, or if it acts without reference to any guiding

rules or principles. In re A.E.M., 455 S.W.3d at 689 (citing In re H.S.B., 401

S.W.3d 77, 81 (Tex. App.—Houston [14th Dist.] 2011, no pet.)).

       When reviewing the sufficiency of the evidence under an abuse-of-discretion

standard, evidentiary insufficiency is not an independent issue. In re A.E.M., 455

S.W.3d at 690; Moreno v. Perez, 363 S.W.3d 725, 735 (Tex. App.—Houston [1st

Dist.] 2011, no pet). Instead, the sufficiency challenge is incorporated into the

abuse-of-discretion review. Moreno, 363 S.W.3d at 735; see In re H.S.B., 401

S.W.3d at 81–82. In this situation, “[o]ur analysis employs a two-pronged inquiry:

(1) whether the trial court had sufficient information upon which to exercise its

discretion; and (2) whether the trial court erred in its application of discretion.”

Moreno, 363 S.W.3d at 735 (citing McGuire v. McGuire, 4 S.W.3d 382, 387 (Tex.

App.—Houston [1st Dist.] 1999, no pet.)).



                                         5
      Legally insufficient evidence supports a finding if (1) there is a complete

absence of evidence of a vital fact, (2) the court is barred by rules of law or

evidence from giving weight to the only evidence offered to prove a vital fact,

(3) the evidence offered to prove a vital fact is no more than a mere scintilla, or

(4) the evidence conclusively establishes the opposite of the vital fact. City of

Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005). Where, as here, a trial court

does not issue findings of fact and conclusions of law, all facts necessary to

support the judgment and supported by the evidence are implied.                    Retamco

Operating, Inc. v. Republic Drilling Co., 278 S.W.3d 333, 337 (Tex. 2009).

B.    Applicable Law

      Section 45.004 of the Texas Family Code provides, in pertinent part, that

“[t]he court may order the name of a child changed if the change is in the best

interest of the child . . . .” TEX. FAM. CODE ANN. § 45.004 (West 2014). And

Section 160.636(e) of the Family Code, which governs orders adjudicating

parentage, states that the court may order that the name of the child be changed

“[o]n request of a party and for good cause shown.”1




1
      The good cause requirement in Section 160.636(e) is subsumed in the analysis of
      the best interest of the child, “[b]ecause the best interest of a child will necessarily
      be considered good cause for changing the child’s name.” In re H.S.B., 401
      S.W.3d 77, 81 n.2 (Tex. App.—Houston [14th Dist.] 2011, no pet.).

                                             6
       The child’s best interest is the determinative issue; the interests of the

parents are irrelevant. In re A.E.M., 455 S.W.3d at 690. We consider the best

interest of the child in light of the following non-exclusive factors:

       (1) the name that would best avoid anxiety, embarrassment,
           inconvenience, confusion, or disruption for the child, which may
           include consideration of parental misconduct and the degree of
           community respect (or disrespect) associated with the name;

       (2) the name that would best help the child’s associational identity
           within a family unit, which may include whether a change in
           name would positively or negatively affect the bond between the
           child and either parent or the parents’ families;

       (3) assurances by the parent whose surname the child will bear that
           the parent will not change his or her surname at a later time;

       (4) the length of time the child has used one surname and the level of
           identity the child has with the surname;

       (5) the child’s preference, along with the age and maturity of the
           child; and

       (6) whether either parent is motivated by concerns other than the
           child’s best interest—for example, an attempt to alienate the child
           from the other parent.

Id. (quoting In re H.S.B., 401 S.W.3d at 84). These are not the only factors that the

trial court may consider, and the “relative importance of these factors, and other

possible factors, will depend on the unique facts and circumstances of each case.”

In re H.S.B., 401 S.W.3d at 84. As these factors suggest, the determination of the

child’s best interest in a name change is fact specific. In re Guthrie, 45 S.W.3d at

726.



                                           7
C.    Analysis

      The uncontroverted testimony shows that neither parent’s name would cause

A.A.A. embarrassment, and there was no evidence that either name was accorded

any particular respect in the community. Nor was there evidence of parental

misconduct or neglect. Anderson testified that A.A.A. spent 90% of her time with

Anderson, and Dainard testified that he had been providing support and health

insurance and visiting A.A.A. regularly, in accordance with the temporary orders.

Anderson offered evidence from which the trial court could have inferred that

Dainard did not prioritize A.A.A. as highly as Anderson did—she testified that

Dainard had asked to reschedule visitation due to problems with his home, pet, job,

or for “no excuse at all,” and she also stated that Dainard did not get involved in

A.A.A.’s life as early as he should have. But the trial court could have discredited

her testimony in light of conflicting evidence: Dainard’s testimony that Anderson

refused to take a DNA test after she first told him she was pregnant and that he had

been visiting A.A.A. regularly and complying with his obligation to support her

since his parentage was established. See In re H.S.B., 401 S.W.3d at 87 (appellate

court defers to the trial court’s resolution of conflicts in testimony).

      Anderson made passing mention that keeping the surname Anderson “seems

less confusing.” She did not expound, but presumably meant that a name change

could potentially confuse A.A.A., who knew her surname and could articulate her



                                            8
full name, as well as her daycare, doctors, or others who identified her by the

surname Anderson.        But the trial court could have discounted this evidence

because the best interest analysis focuses not on the impact that the name change

will have on others but on the best interest of the child, who, in this instance, was

only two years old at the time of trial and therefore had a relatively short amount of

time to develop an association with her surname. 2 See In re A.E.M., 455 S.W.3d at

690 (court should consider, among other things, child’s age and ability to have a

preference); In re H.S.B., 401 S.W.3d at 84 (focus of inquiry is child’s best

interest, not interests of others).

       Each of Dainard and Anderson asserted that they should be allowed to share

a surname with A.A.A., to foster their respective familial bonds with her. Dainard

testified that he believed A.A.A. should have his surname because she would live

primarily with Anderson and see Dainard less frequently. And Anderson testified

that allowing A.A.A. to keep the surname Anderson would foster a familial bond

among A.A.A., Anderson and Anderson’s mother. Anderson also testified that

both she and her mother planned to keep their surname regardless of a future

marriage. There was no evidence of any siblings or half-siblings with whom

A.A.A. might share a surname.



2
       There was also conflicting evidence regarding whether Anderson sought to delay
       resolution of the name change suit.

                                          9
      The evidence before the trial court was thus mixed. On the one hand, there

was evidence that keeping Anderson’s name would avoid confusion and

inconvenience for A.A.A. and others who knew her.         Anderson also presented

evidence that she and her mother would keep their surname and that sharing the

surname Anderson would enable A.A.A. to form a familial bond with them. All of

this evidence favored Anderson. On the other hand, the factors of age, maturity,

and length of time the child had the surname Anderson favored Dainard. So did

Dainard’s assertion that sharing a surname with A.A.A. would help facilitate the

development of a father-daughter bond, and that it was especially important that he

have this connection with A.A.A. because she would be spending most of her time

with Anderson. And there was conflicting evidence regarding the reasons that

Dainard was not involved in his daughter’s life from birth and the role Anderson

played in Dainard’s ongoing efforts to spend time with A.A.A.—conflicts that the

trial court, as the sole judge of the credibility of the witnesses and the evidence,

had the exclusive province to resolve. Thus, this case is unlike In re A.E.M., in

which the majority concluded that there was scant evidence regarding factors

relevant to a name change and that the evidence only “slightly favor[ed]” a single

factor. See 455 S.W.3d at 692 (concluding evidence insufficient to support name

change where only evidence favoring name change was that child would carry on

family name and share surname with half-sister with whom he did not live).



                                        10
       The decision the trial court was called upon to make was a difficult one to be

sure. But it was not an abuse of discretion to determine that it was in A.A.A.’s best

interest to change her surname in order to facilitate the formation of a father-

daughter bond with Dainard, who was meeting his obligations to A.A.A. and

expressed a desire to form a father-daughter bond that the trial court found sincere.

See In re M.C.F., 121 S.W.3d 891, 899 (Tex. App.—Fort Worth 2003, no pet.)

(trial court does not abuse its discretion when it bases decisions on conflicting

evidence); In re Guthrie, 45 S.W.3d at 726–27 (affirming trial court’s grant of

father’s motion to change son’s name when there were disputed factors supporting

both mother’s and father’s surname); cf. In re C.M.V., -- S.W.3d -- , No. 08-13-

00146-CV, 2015 WL 2265388, at *5 (Tex. App.—El Paso May 13, 2015, no pet.)

(abuse of discretion to grant father’s name change request where father had no

contact with child for 10 years and presented no evidence of 16-year old child’s

preference or from which it could be inferred that name change was in child’s best

interest).

       We overrule Anderson’s sole issue.




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                                   Conclusion

      We affirm the trial court’s judgment.




                                              Rebeca Huddle
                                              Justice

Panel consists of Chief Justice Radack and Justices Bland and Huddle.




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