          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA



                                                                   FILED
                                 January 2013 Term               May 20, 2013
                                                                released at 3:00 p.m.
                                                                RORY L. PERRY II, CLERK
                                                              SUPREME COURT OF APPEALS
                                    No. 11-1694                   OF WEST VIRGINIA




                     IN RE: NAME CHANGE OF JENNA A.J.


          ______________________________________________________

                Appeal from the Circuit Court of Monongalia County

                         Honorable Philip D. Gaujot, Judge

                            Civil Action No. 11-P-194


                                REVERSED
           ____________________________________________________

                             Submitted: April 17, 2013
                               Filed: May 20, 2013

Suzanne Weise, Esq.                                  Jessica L. Miller

James Fogartie, Student Attorney                     Pro Se

Andrew Felts, Student Attorney

WVU Child and Family Law Clinic

WVU College of Law

Morgantown, WV

Counsel for Petitioner




JUSTICE LOUGHRY delivered the Opinion of the Court.

JUSTICE WORKMAN dissents and reserves the right to file a dissenting opinion.

                               SYLLABUS BY THE COURT




              1. “In reviewing challenges to the findings and conclusions of the circuit court,

we apply a two-prong deferential standard of review. We review the final order and the

ultimate disposition under an abuse of discretion standard, and we review the circuit court’s

underlying factual findings under a clearly erroneous standard. Questions of law are subject

to a de novo review.” Syl. Pt. 2, Walker v. West Virginia Ethics Comm’n, 201 W.Va. 108,

492 SE.2d 167 (1997).



              2. “Children bear the surnames of their fathers by custom and usage in this

society, and where a father who has exercised his parental rights and discharged his parental

responsibilities is dead, or a living father exercises his parental rights and discharges his

parental responsibilities, the name of a minor child cannot be changed from that of the father

unless upon proper notice and by clear, cogent and convincing evidence it is shown that such

change will significantly advance the best interests of the child.” Syl. Pt. 3, In re Harris, 160

W.Va. 422, 236 S.E.2d 426 (1977).



              3. “When a name change involves a minor child, proof that the change is in

the best interests of the child is necessary over and above what is required by W.Va. Code

§ 48-5-1 et seq. (1992).” Syl. Pt. 2, Lufft v. Lufft, 188 W.Va. 339, 424 S.E.2d 266 (1992).


                                               ii
               4. “Any name change involving a minor child may be made only upon clear,

cogent, and convincing evidence that the change would significantly advance the best

interests of the child.” Syl. Pt. 3, Lufft v. Lufft, 188 W.Va. 339, 424 S.E.2d 266 (1992).



               5. All name change applications involving a minor child, including those that

involve the use of two hyphenated surnames, may be made only upon a showing of clear,

cogent, and convincing evidence that the name change will significantly advance the best

interests of the child.




                                             iii
LOUGHRY, Justice:

                 Petitioner Jim J. appeals from the November 9, 2011, order of the Circuit Court

of Monongalia County, granting the name change that the respondent Jessica M. had sought

for Jenna A.J.,1 the minor daughter of the parties. After initially seeking to change Jenna’s

surname from the petitioner’s surname, which she took at birth, to the respondent’s

surname,2 Jessica M. amended the name change petition to request a hyphenated surname for

Jenna A.J. just before the hearing3 in this matter. After hearing testimony from both the

petitioner and the respondent, the trial court issued its ruling in favor of the requested

hyphenated name change.4 In challenging the lower court’s ruling, the petitioner argues that

the trial court failed to properly apply the standard which governs a name change request.

While the respondent did not file a brief before this Court, during the oral argument of this

matter she argued that the petitioner did not show, either below or at the appellate level, that

the name change injured him.5 Upon our careful review of the record submitted in this


       1
        Consistent with our longstanding practice in sensitive matters, we use initials to
identify the parties rather than their full surnames. See In the Matter of Jonathan P., 182
W.Va. 302, 303 n.1, 387 S.E.2d 537, 538 n.1 (1989).
       2
           The parties in this case were never married.
       3
       The hearing was held on October 11, 2011. Jessica M. appeared pro se at that
hearing as well as in the proceedings before this Court.
       4
      Under the court’s ruling, Jenna’s surname would be comprised of the mother’s
surname followed by the father’s surname.
       5
           See W.Va. Code § 48-25-101 (2011) (providing that name change may be ordered
                                                                          (continued...)

                                                1

matter in conjunction with applicable law, we find that the trial court committed error in

granting the name change and, accordingly, reverse.



                          I. Factual and Procedural Background

              On August 30, 2011, Jessica M. filed a pro se Petition for the Name Change

of Jenna A.J. The grounds identified in the petition as support for the name change were

that the petitioner was “no longer willing to participate fully in the child’s life” and that the

respondent was “the sole provider for the child.” Based on these two allegations, the

respondent declared that she wanted Jenna A.J. “to have the same name as her mother.”



              In response, the petitioner6 submitted a memorandum in opposition to the name

change request. In explanation of his request for a hearing on the petition, Jim J. stated that

“he is a party likely to be injured by the change of his daughter’s name.” In addition, the

petitioner argued that Jessica M. had failed, through the filing of the petition, to provide any

evidence that the alteration of the child’s surname would significantly advance the best

interests of Jenna A.J.




       5
        (...continued)
upon finding that “no injury will be done to any person by reason of the change . . . [and] that
a reasonable and proper cause exist for changing the name”).
       6
       In contrast to the respondent, the petitioner was represented by counsel throughout
the name change proceedings.

                                               2

              On the day of the hearing, the respondent, who proceeded on her own behalf,

presented the circuit court with an Amended Petition for Name Change. Through the

amended petition, Jessica M. altered her initial request to instead seek a hyphenated surname

and provided the following explanation:

              The reason for having M[.] added is so my child will not be
              confused by having a different last name then [sic] mine. Jenna
              has always and will continue to be supported and cared for by
              me. Her biological father, Mr. J[.], and I were never married
              and will never marry; therefore she will be living in a M[.]
              household with me. Mr. J[.] only financially supported Jenna
              after being court ordered to do so. As of this day he has never
              been current with his child support payments. He never visited
              on a regular basis until the court directed such visits even though
              I always tried to set up regular visits without involving the
              courts. I do not see any reason that changing her name will
              injure Mr. J[.] but keeping it as is, will only cause confusion for
              Jenna.



              After testifying that she was not seeking the name change for any improper or

illegal purpose, Jessica M. informed the trial court that she wanted Jenna A.J. to have her

surname because the parties had never married and, since the parties separated,7 she had been

her daughter’s sole provider. When the circuit court inquired specifically as to how the name

change would be in the best interests of Jenna A.J., the respondent testified that “I think it’ll

just make it easier for her” when she gets into school if she has both of her parents’ names.



       7
        The respondent indicated that the separation had occurred more than one year prior
to the hearing date.

                                               3

Upon further questioning by the trial court, the respondent stated that the petitioner had not

been active in Jenna A.J.’s life until she went to court for purposes of seeking child support.



                 When the petitioner was permitted to offer his testimony, he stated that he had

reduced his child support arrearage to $249.8 He indicated that he was enjoying the time that

he spends with Jenna A.J., but testified about several verbal altercations he had experienced

with the respondent in connection with exercising his visitation rights.9 When the respondent

directly questioned him as to how the proposed hyphenated name change would cause him

injury, Jim J. testified “[t]o be honest I don’t really know Ms. M[.] anymore.” Continuing,

he stated:

                 you know, she wants to modify my daughter’s name in any way
                 therefore she wants to do more and I’m just afraid of that, you
                 know, if this was the issue when she was born then we should
                 have addressed it then not years after when she’s upset and now
                 she wants to, you know, continuously do radical things. . . .




                 In its ruling of November 9, 2011, the trial court recognized that “while Mr.

J[.] is currently in arrears with regard to his child support obligations, he is working to satisfy

those obligations, and he is currently engaging in visitation with young Jenna pursuant to a

Temporary Parenting Plan entered by the Monongalia County Family Court.” Accordingly,

       8
           He stated that it was initially $1200.

       9
           According to the petitioner, these verbal arguments concerned unpaid child support.


                                                     4

the circuit court concluded that the petitioner was “exercising his parental rights and

discharging his parental responsibilities.” After observing that the petitioner “does not

specifically articulate the harm that he will suffer” from the proposed name change, the trial

court ruled as follows:

              [T]he Court does not perceive any harm befalling Mr. J[.] as a
              result of the name change requested pursuant to Ms. M[.]’s
              amended petition. Had Ms. M[.] remained steadfast in her effort
              to eliminate the child’s paternal surname, the Court may very
              well have reached a different conclusion in this case. The
              hyphenated surname . . . adds the maternal surname; it does not
              eliminate the paternal surname. Therefore, Mr. J[.]’s protectable
              interest, as this Court sees it, remains protected.
                      Additionally, the Court finds that Ms. M[.] has, in fact,
              satisfied her burden under Harris, and has shown by clear,
              cogent, and convincing evidence that the proposed, hyphenated
              name will significantly advance young Jenna’s best interests.10

It is from this ruling that the petitioner now seeks relief.



                                   II. Standard of Review

              We articulated the applicable standard of review in syllabus point two of

Walker v. West Virginia Ethics Commission, 201 W.Va. 108, 492 SE.2d 167 (1997):

                     In reviewing challenges to the findings and conclusions
              of the circuit court, we apply a two-prong deferential standard
              of review. We review the final order and the ultimate


       10
         The trial court further opined: “Based upon the circumstances underlying this case,
it appears highly unlikely that Jenna will grow-up and develop a familial identity within a
nuclear or traditional family setting. By her new name, Jenna will be better able to identify
herself as a member of her paternal and maternal families.” (emphasis in original).

                                               5

              disposition under an abuse of discretion standard, and we review
              the circuit court’s underlying factual findings under a clearly
              erroneous standard. Questions of law are subject to a de novo
              review.

With this standard in mind, we proceed to determine whether the lower court committed error

in granting the name change sought by the respondent in this case.



                                      III. Discussion

              More than thirty-five years ago, this Court first addressed the standard to be

employed when a parent seeks to effect a name change for his or her child. In syllabus point

three of In re Harris, 160 W.Va. 422, 236 S.E.2d 426 (1977), we set forth the following rule:

                     Children bear the surnames of their fathers by custom and
              usage in this society, and where a father who has exercised his
              parental rights and discharged his parental responsibilities is
              dead, or a living father exercises his parental rights and
              discharges his parental responsibilities, the name of a minor
              child cannot be changed from that of the father unless upon
              proper notice and by clear, cogent and convincing evidence it is
              shown that such change will significantly advance the best
              interests of the child.

The petitioner argues that the respondent failed to satisfy her burden under Harris and its

progeny.



              By statute, “[a]ny person desiring a change of his own name, or that of his or

her child, may apply to the circuit court or family court of the county in which he or she



                                             6

resides. . . .” W.Va. Code § 48-25-101 (2009).11 Any person who objects to a proposed

name change may oppose the application by alleging injury or by asserting other grounds of

harm. See id. § 102; see also W.Va. Code § 48-25-101 (precluding convicted felons and

registered sex offenders from securing name changes and denying applications sought for

purpose of avoiding debt or creditors and state or federal identity laws). Before a name

change can be granted, the circuit or family court is required to ascertain that there are no

statutory prohibitions to the name change; that reasonable and proper cause exists for the

name change; and that there is no fraudulent or evil intent underlying the application. See

W.Va. Code § 48-25-103 (2009).



              Melding the statutory requirements for a name change with the need to impose

a standard for reviewing such applications, we held in syllabus point two of Lufft v. Lufft, 188

W.Va. 338, 424 S.E.2d 266 (1992), that “[w]hen a name change involves a minor child,

proof that the change is in the best interests of the child is necessary over and above what is

required by W.Va. Code § 48-5-1 et seq. (1992).”12 Crystallizing the evidentiary standard

first announced in Harris, we held in syllabus point three of Lufft that “[a]ny name change

involving a minor child may be made only upon clear, cogent, and convincing evidence that


       11
        The statutory provisions governing name changes were previously codified at West
Virginia Code § 48-5-1 to -7 (1996).
       12
        As noted above, the name change statutes that were previously set forth at West
Virginia Code § 48-5-1 to -7 now appear at West Virginia Code § 48-25-101 to -107.

                                               7

the change would significantly advance the best interests of the child.” 188 W.Va. at 339,

424 S.E.2d at 266, syl. pt. 3.



              At first glance, the ruling at issue suggests that the trial court properly applied

the applicable standard. In granting the name change application, the trial court concluded

that Jessica M. “has shown by clear, cogent, and convincing evidence that the proposed,

hyphenated name will significantly advance young Jenna’s best interests.” Upon further

examination, however, the circuit court revealed that its decision was shaped by an

assumption that a different and, arguably, more lenient standard applied to this case given

the respondent’s request for a hyphenated, rather than outright, name change. This is clear

from the trial court’s observation that “[h]ad Ms. M[.] remained steadfast in her effort to

eliminate the child’s paternal surname, the Court may very well have reached a different

conclusion in this case.” The implication from this statement is that the respondent would

have had to produce additional evidence to convince the trial court that a name change to her

surname was warranted.



              By implying that a sliding scale applies in terms of the evidence necessary to

secure a hyphenated name change, as compared to an outright surname change, the trial court

was misguided. This Court has never adopted a different evidentiary standard based upon

the nature of the name change sought. As we sought to make clear in syllabus point three of


                                               8

Lufft, all name change applications involving a minor child, including those that involve the

use of two hyphenated surnames, may be made only upon a showing of clear, cogent, and

convincing evidence that the name change will significantly advance the best interests of the

child. See id.



                 In reviewing the record submitted in this case to determine whether the trial

court committed error, we are troubled by the paucity of evidence that was admitted in this

case in support of the proposed name change. And given the timing of the request,13 we are

concerned that, as we cautioned against in Lufft, the name change may have been sought for

improper purposes. See 188 W.Va. at 342, 424 S.E.2d at 269 (observing that “[t]he time

frame makes this request for a name change look suspiciously like an attempt to anger the

appellant”). Quite frankly, the trial court’s ruling has more grounds offered in justification

of the name change than the record itself discloses.14 At best, the record demonstrates the

mother’s preference for her daughter to have a hyphenated surname based on the perceived

benefits to be realized in the future when she is of school age. Currently, however, the record

simply does not disclose the necessary degree of “clear, cogent, and convincing evidence that


       13
        The name change petition was filed during the same time that the parties were
engaged in proceedings that initially pertained to visitation and now have been expanded to
include custody.
       14
        And while we recognize the respondent’s lack of representation may account for this
dearth of evidence, we are still required to find the necessary evidence to support the name
change.

                                               9

the name change would significantly advance the best interests of the child.” Lufft, 188

W.Va. at 339, 424 S.E.2d at 266, syl. pt. 3.



                                     IV. Conclusion

              Based on the foregoing, we are compelled to conclude that the Circuit Court

of Monongalia County erred in its decision to grant a name change to the minor child in this

case. Accordingly, the case is reversed.

                                                                                 Reversed.




                                               10

