              IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                     NO. 2017-CA-01145-COA

LANA L. OLSON                                                                APPELLANT

v.

ROBERT M. BENNETT                                                              APPELLEE

DATE OF JUDGMENT:                               07/25/2017
TRIAL JUDGE:                                    HON. SANFORD R. STECKLER
COURT FROM WHICH APPEALED:                      HARRISON COUNTY CHANCERY COURT,
                                                FIRST JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT:                         MICHAEL C. HESTER
ATTORNEY FOR APPELLEE:                          REED S. BENNETT
NATURE OF THE CASE:                             CIVIL - DOMESTIC RELATIONS
DISPOSITION:                                    REVERSED AND RENDERED - 12/18/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

          EN BANC.

          WILSON, J., FOR THE COURT:

¶1.       The issue in this appeal is whether the chancery court erred by changing the surname

of a nine-year-old boy at the request of the boy’s father and over the objection of the boy’s

mother. We agree with the mother that the chancery court manifestly erred by changing the

boy’s name. Therefore, we reverse and render the judgment of the chancery court to that

extent.

                            FACTS AND PROCEDURAL HISTORY

¶2.       Noah1 was born in Gulfport in July 2008. Noah’s father, Robert Bennett, was present



          1
              We use a fictitious first name for the minor child.
when Noah was born, but he insisted on a paternity test and refused to sign Noah’s birth

certificate or be listed as Noah’s father. Accordingly, Noah’s birth certificate did not list a

father, and Noah took the surname of his mother, Lana Olson (Lana). Within three weeks

of Noah’s birth, a DNA test confirmed that Bennett was Noah’s father. However, Bennett

took no steps to have his name added to Noah’s birth certificate. Nor did Bennett pursue

visitation with Noah. Noah has lived with Lana his entire life.

¶3.    Years passed. At some point, Bennett began paying child support, although the record

does not reflect when Bennett began paying support or how much he paid. Otherwise,

Bennett was not “in the picture.”

¶4.    In April 2016, Bennett filed a “Complaint for Child Custody and Support, Amendment

or Correction of Birth Certificate, and Motion for Temporary Relief” in the Harrison County

Chancery Court.2 Lana and Noah subsequently moved to Kentucky, where they live with

Lana’s mother, Sharon Olson (Sharon). Lana and Bennett eventually resolved all issues

related to child custody and support, and in July 2017 the court entered an “Agreed Order of

Custody and Support.” The parties did not include the order in the record on appeal, but it

apparently awarded physical custody to Lana, grants visitation to Bennett, and orders Bennett

to pay child support. Bennett’s visitation was described during a hearing as not “the ordinary

standard visitation of every other weekend, but . . . simply . . . parcels of time for the four

major holidays.” Sharon stated that Bennett has visitation with Noah for a total of three

months each year.

       2
         Bennett filed an amended complaint in May 2016. However, the parties did not
include the complaint, amended complaint, or any other pleading in the record on appeal.

                                              2
¶5.    In July 2017, the chancery court held a hearing on Bennett’s request to change Noah’s

surname, which was the only unresolved issue in the case. Noah was nine years old at the

time of the hearing and did not testify. Bennett, Lana, and Sharon testified.

¶6.    When asked why he wanted to change Noah’s name, Bennett answered, “I want him

to carry . . . his family name . . . . My father passed my name down to me, and I want to pass

it down to my children.” Bennett testified that he had no other reason for requesting the

name change. Lana acknowledged that Bennett “started paying [child] support some years

ago.” Otherwise, Bennett was not “in the picture” until he sought visitation in 2016.

¶7.    Lana and Sharon both testified that they feared that changing Noah’s name would

have a negative impact on him. Sharon testified that when Noah “started school, he became

sullen and angry and uncooperative,” and eventually he was “suspended” from school at age

five. As a result, Sharon homeschooled Noah for two and a half years until they were able

to enroll him in school in Kentucky. Sharon testified that Noah continues to have behavior

problems at school, but they have been able to work through the issues with the school.

Sharon said they were still in a “tentative situation” with Noah. Sharon was concerned that

a name change could make Noah “confused” or “angry” and that someone at school might

tease him about his new name. She feared that would lead to “the problem of [Noah]

deciding he doesn’t want to go to school again.” Lana similarly testified that she feared that

Noah would be bullied at school because of a sudden name change. Lana also testified, “I

feel like . . . Mr. Bennett had opportunities to change the name and decided not to because

he felt like the child was not his and didn’t want to take responsibility for his child.”



                                               3
¶8.    At the beginning of the hearing, the chancellor stated that the Mississippi Supreme

Court has been “pretty emphatic that the child shall take the last name of the father.” The

chancellor acknowledged that there is an “exception” to the rule, but he stated that “[t]he

exception that’s permitted isn’t mere embarrassment or confusion for the child or potential

embarrassment or confusion or things like that that may result from the name being

changed.” The chancellor cited Rice v. Merkich, 34 So. 3d 555 (Miss. 2010), for this point.

The chancellor further stated:

       The Court could make an exception . . . if the circumstances are such that it is
       just really a traumatic kind of thing that would make it just absolutely
       inappropriate for the child to carry the father’s name. [For example, if there
       is] something seriously wrong with the father, such as, let’s say that
       hypothetically . . . I was trying to think of some reason why I might do this.
       If the mother were raped and the child was the result of a heinous thing like
       that. Or the father was a pedophile and had been abusing the child. Or
       something that’s just really just detrimental and the child should not ever have
       to go around carrying that name. That is a logical reason to do it. You know,
       you may be able to think of some other reason that the Supreme Court would
       go along with, but those are the kind of drastic measures that the Supreme
       Court may or may not.

¶9.    At the conclusion of the hearing, the chancellor granted Bennett’s request to change

Noah’s surname, explaining his ruling as follows:

       Well, I can certainly understand the reluctance to want to have the child’s
       name changed to that of the father. I think that there are certainly some
       reasons that she could point to and say it would be in the child’s best interest
       to leave it as it is. I don’t think that they meet the criteria that the Supreme
       Court has set for us to be able to change the name or to allow the name to be
       different from what the statute says. The statute says that the child shall carry
       the father’s name. And so I must reluctantly deny the request to have it
       changed -- or, rather, to deny it to remain the same as the mother’s. And I will
       order that it be changed to be the father’s name.

¶10.   The chancellor subsequently entered a judgment ordering that Noah’s birth certificate

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should be amended to change his last name to Bennett and to list Bennett as his father. The

chancellor effectively stayed the judgment pending appeal by ordering that the judgment

should not be registered with the Mississippi Department of Vital Records or otherwise

effectuated until after Lana had exhausted her appeals.

                                       ANALYSIS

¶11.   On appeal, Lana argues (1) that the chancery court’s ruling should be reversed

because “it would not be in [Noah’s] best interest to change his surname” and (2) that the

statutory “presumption” that a child shall be given the father’s surname violates the Equal

Protection Clause of the Fourteenth Amendment to the United States Constitution.3

¶12.   “This Court ‘will not disturb the factual findings of a chancellor when supported by

substantial evidence unless the Court can say with reasonable certainty that the chancellor

abused his discretion, was manifestly wrong, clearly erroneous or applied an erroneous legal

standard.’” Rice, 34 So. 3d at 557 (¶7) (quoting Powers v. Tiebauer, 939 So. 2d 749, 752

(¶6) (Miss. 2005)). “When reviewing questions of law, this Court employs a de novo



       3
         Lana’s second argument challenges Mississippi Code Annotated section 93-9-9(1),
as interpreted by our Supreme Court in Rice, supra. As discussed below, the majority
opinion in Rice held that the statute places the “burden of proof” on the party who contends
that the child should not have the father’s surname. Rice, 34 So. 3d at 557 (¶¶8-9). The
majority opinion in Rice did not use the term “presumption,” but Justice Lamar’s dissent
fairly characterized the majority opinion as establishing a “presumption” in favor of the
paternal surname. Id. at 562 (¶26) (Lamar, J., dissenting). We note that Lana apparently did
not comply with Mississippi Rule of Appellate Procedure 44(a), which requires a party
challenging the constitutionality of a statute to serve a copy of her brief on the Attorney
General. M.R.A.P. 44(a); see also 5K Farms v. Miss. Dep’t of Revenue, 94 So. 3d 221, 224-
25 (¶¶11-13) (Miss. 2012) (discussing an appellate court’s discretion to decline to consider
a constitutional issue when a party fails to comply with Rule 44(a)). However, this issue is
moot because we decide the case on other grounds.

                                             5
standard of review and will only reverse for an erroneous interpretation or application of

law.” Id. (quoting Powers, 939 So. 2d at 752 (¶6)).

¶13.   We first address Lana’s argument that the chancery court’s ruling should be reversed

because it would not be in Noah’s best interest to change his surname.4 The parties agree that

this case is governed by Mississippi Code Annotated section 93-9-9(1), which provides in

relevant part that “the surname of the child shall be that of the father, unless the judgment

specifies otherwise.” The parties also agree that our Supreme Court’s decision in Rice,

supra, provides the authoritative interpretation of section 93-9-9(1). As noted above, the

chancellor also cited Rice as binding precedent on this issue.

¶14.   In Rice, the father (Merkich) and mother (Rice) were living together when Rice

became pregnant, but their relationship ended a few months later, before their daughter

(Presley) was born. Rice, 34 So. 3d at 556 (¶¶2-3). Merkich accompanied Rice to doctor’s

appointments and contributed to her medical bills during the pregnancy. Id. at (¶2). Merkich

was not present for Presley’s birth only because Rice did not inform him when she went into

labor early. Id. at (¶3). However, Merkich filed a petition to determine paternity less than

two weeks after Presley was born. Id. at (¶4). Once paternity was established, Merkich

promptly filed a petition to determine custody and visitation, acknowledged his obligation

to pay child support, and requested that Presley’s surname be changed to Merkich. Id. He

did all this within sixty days of Presley’s birth. Id. The chancery court subsequently awarded

       4
         See Warner-Lambert Co. v. Potts, 909 So. 2d 1092, 1093 (¶3) (Miss. 2005) (“It is
well-settled by decision of this Court that a constitutional question will be passed on where
the issues involved in a particular case are such that the case may be decided on other
grounds.”).

                                              6
joint legal custody to Rice and Merkich, physical custody to Rice, and visitation to Merkich.

Id. at (¶5). The court also found that Presley’s surname should be changed to Merkich. Id.

Rice appealed the name change. Id.

¶15.   On appeal, the Supreme Court held that under section 93-9-9(1), supra, a chancery

court should change a child’s surname to that of the father unless the mother proves by a

preponderance of the evidence that it would not be “in the child’s best interest” to change the

child’s name. Id. at 557 (¶¶8-9). Applying this standard, the Supreme Court affirmed the

chancery court’s ruling. Id. at 559 (¶16). The Court noted that if Rice had informed Merkich

of Presley’s birth, Merkich could have acknowledged paternity by completing the proper

forms at the hospital, in which case Presley would have been given his surname. Id. at 558

(¶10). In addition, the Court stated that “[t]he only evidence offered by Rice that Presley

should not have the surname Merkich” was Rice’s own testimony about “possible

embarrassment and confusion for Rice and Presley to have different names.” Id. at 559

(¶13). Moreover, at a hearing held a few days after Presley’s first birthday, “Rice testified

that Merkich [was] a good father, who [was] very involved in Presley’s life and spen[t] as

much time with her as possible.” Id. at (¶15). On those facts, the Supreme Court held “that

Rice failed to prove by a preponderance of the evidence that it [was] in the child’s best

interest that her surname not be Merkich.” Id. at (¶16).5

       5
         In dissent, Justice Lamar argued that the father, as the party requesting relief, should
bear the burden of proof. Id. at 562 (¶26). Justice Lamar further argued that the chancery
court in Rice had not made a “best interest” determination but rather had misinterpreted the
statute as mandating that the child’s surname be changed to that of the father. Id. at 562-63
(¶27). Justice Lamar also reasoned that a statutory “presumption” in favor of the paternal
surname “would raise serious Equal Protection concerns.” Id. at 562 (¶26).

                                               7
¶16.   In this case, the chancellor cited Rice, but many of the chancellor’s statements were

inconsistent with Rice’s best-interest/preponderance-of-the-evidence standard. As noted

above, the chancellor began the hearing by suggesting that he could make an “exception” to

the rule that a “child shall take the last name of the father” only if Lana proved that “the

circumstances are such that it is just really a traumatic kind of thing that would make it just

absolutely inappropriate for the child to carry the father’s name.” The chancellor further

stated that he could make an exception if there was “something seriously wrong with the

father”—for example, if the father had raped the mother or “was a pedophile and had been

abusing the child.” The chancellor indicated that some other “drastic” set of facts might

justify an exception, although he did not provide additional examples. At the conclusion of

the hearing, the chancellor recognized that there were “certainly some reasons that [Lana]

could point to and say it would be in [Noah’s] best interest to leave [his name] as it is.” But

the chancellor then concluded: “I don’t think that [Lana’s reasons] meet the criteria that the

Supreme Court has set for us to be able . . . to allow the name to be different from what the

statute says. The statute says that the child shall carry the father’s name.” The chancellor

then “reluctantly” ordered Noah’s surname to be changed to Bennett.

¶17.   The chancellor’s statements imply a misreading of the majority opinion in Rice. Lana

was not required to prove that there was “something seriously wrong” with Bennett or that

it would be “absolutely inappropriate” for Noah to have Bennett’s surname. Nor was Lana

required to prove that Noah would be traumatized by a name change. Under Rice, Lana only

needed to show, by a mere preponderance of the evidence, that it would not be in nine-year-



                                              8
old Noah’s “best interest” to change his name. Rice, 34 So. 3d at 557 (¶¶8-9). We conclude

that Lana met her burden and that the chancellor manifestly erred by ruling otherwise.

¶18.   To begin with, the facts of this case are materially different from the facts of Rice.

In Rice, Merkich took action when Presley was only weeks old so that she was barely one

year old when her name was changed. As Justice Lamar put it, Presley was still “too young

even to know her last name.” Id. at 563 (¶28) (Lamar, J., dissenting). In contrast, Bennett

did not seek visitation with Noah or take any action to change his name until Noah was

nearly eight years old. Thus, Noah was nine years old by the time of the hearing in the

chancery court,6 certainly old enough to have become accustomed to his name.

¶19.   Moreover, Lana presented some evidence to support her contention that it was not in

Noah’s best interest to change his surname. Lana and Sharon could not and did not testify

that a name change would result in certain harm to Noah, but that is to be expected. In most

cases, it will be difficult, if not impossible, for a mother to produce objective evidence that

a name change will cause a specific, certain harm to her child. Nonetheless, Lana and Sharon

provided legitimate reasons why it would not be in Noah’s “best interest” to change his

name. Indeed, at the conclusion of the hearing, the chancery court recognized that

“certainly” there were “some reasons that [Lana] could point to and say it would be in

[Noah’s] best interest to leave [his name] as it is.” Given Noah’s age and history of

behavioral issues at school, it was reasonable for Lana and Sharon to be concerned that a

sudden name change could have a negative impact on him.



       6
           Noah is now ten years old.

                                              9
¶20.   On the other side of the scale, Bennett presented no reason or evidence that it would

be in Noah’s best interest to change his name at age nine. Bennett stated only, “I want him

to carry . . . his family name . . . . My father passed my name down to me, and I want to pass

it down to my children.” Bennett’s feelings are understandable, but he failed to act on

them—or even pursue visitation with Noah—until Noah was nearly eight years old. More

important, Bennett’s desire to pass on his family name is not the equivalent of Noah’s best

interest. “[T]he child’s best interest” is not the same thing as “either parent’s best interest.”

Vassar v. Vassar, 228 So. 3d 367, 375 (¶26) (Miss. Ct. App. 2017). Put simply, “[t]he

relationship of parent and child is not for the benefit of the parent, but of the child.” Reno

v. Reno, 253 Miss. 465, 475, 176 So. 2d 58, 62 (1965) (quoting J.W. Bunkley Jr. & W.E.

Morse, Amis on Divorce and Separation in Mississippi § 8.01 (2d ed. 1957)).

¶21.   In summary, Lana presented legitimate reasons that it was not in Noah’s best interest

to change his name, while Bennett presented no reason that a name change would benefit

Noah. Lana met her burden of proof under Rice, and the chancery court manifestly erred to

the extent that it concluded otherwise. Accordingly, we reverse and render the judgment of

the chancery court insofar as it ordered Noah’s surname to be changed.7 Noah’s last name

shall remain Olson.

¶22.   REVERSED AND RENDERED.

    LEE, C.J., GRIFFIS, P.J., BARNES, CARLTON, FAIR AND TINDELL, JJ.,
CONCUR. WESTBROOKS, J., CONCURS IN PART AND DISSENTS IN PART

       7
       The chancery court also ruled that Noah’s birth certificate should be amended to
show Bennett as his father. Lana does not challenge that part of the chancery court’s
judgment, and our decision has no impact on it.

                                               10
WITH SEPARATE WRITTEN OPINION, JOINED BY IRVING, P.J., AND
GREENLEE, J.

       WESTBROOKS, J., CONCURRING IN PART AND DISSENTING IN PART:

¶23.   I write separately because I concur in part and dissent in part from the majority. I

agree that Olson did not properly provide notice to the Attorney General’s Office, and

therefore her constitutional claim is procedurally barred. But, I respectfully dissent because

I believe that Olson did not meet the burden of proof required by Rice8 and would affirm the

chancellor’s decision.

¶24.   On appeal, Olson asserts that the chancellor erred in finding that Noah’s surname

should be changed to Bennett. I disagree. The applicable Mississippi Code Annotated

section 93-9-9(1) states that “[i]n the event of court-determined paternity, the surname of the

child shall be that of the father, unless the judgment specifies otherwise.” Because Bennett’s

paternity was court-established, Olson’s claim focuses on the “unless the judgment specifies

otherwise” clause of the statute, and this is the only section of the statute she raises on appeal

for this Court’s consideration. Olson asserts that the chancellor had the ability to allow Noah

to maintain his surname and chose not to.

¶25.   The Mississippi Supreme Court has held that where a party to the action contends that

the surname should not be “that of the father,” then, and in that event, that party must prove

by a preponderance of the evidence that it is in the child’s best interest that the surname not

be “that of the father.” Rice v. Merkich, 34 So. 3d 555, 557 (¶8) (Miss. 2010). Here, it was

Olson’s responsibility to prove that it was not in Noah’s best interest to take Bennett’s

       8
           34 So. 3d 555 (Miss. 2010).

                                               11
surname. In support of her assertions, Olson stated that Bennett had not established himself

as a father figure and had been void from Noah’s life for eight years. During the hearing,

Olson and her mother testified that it might be difficult to change all of Noah’s official

documents and may subject him to bullying at school. The chancellor held that these reasons,

while valid, did not meet the burden of proving that it was in the best interest of Noah for his

last name to remain Olson. I agree.

¶26.   Olson attempted to differentiate her case from Rice v. Merkich, which is binding

precedent in Mississippi. However, I find that their cases are analogous. In Rice, the father,

Scott Merkich, was not present for the child’s birth because the mother, Jessica Rice, did not

alert him to the birth until days later. Rice, 34 So. 3d at 556 (¶3). Once paternity was

established, Merkich immediately filed for child custody, visitation, a change of surname,

and stated that he would pay his child support obligations. Id. at (¶4). At trial, Rice

presented evidence that changing the child’s surname would be embarrassing and confusing,

therefore, the child should maintain her surname. Id. The chancellor did not find the

evidence persuasive and ordered that while Rice would maintain custody and receive

temporary child support, Merkich would have reasonable visitation and that the child’s

surname would be changed to Merkich. Id. at (¶5). Rice appealed. Id. On appeal, the

Mississippi Supreme Court ruled that Rice failed to prove by a preponderance of the

evidence that it was in her child’s best interest that her surname not be changed to Merkich

and affirmed the chancery court’s decision. Id. at (¶18).

¶27.   Olson contrasted her case by highlighting that Bennett was present at the birth and



                                              12
chose not to sign the birth certificate or petition the court for a name change years after the

DNA testing, stating that hers and Rice’s lives were in “direct contrast.” Although, Bennett

waited eight years to petition the court for a name change, the same standard of proof was

needed to deviate from the statute. Olson, similarly to Rice, only presented evidence that her

child’s surname should remain as hers to avoid “possible embarrassment and confusion.”

Id. at (¶13). Additionally, like in Rice, Bennett has attempted to establish himself as a father

figure in Noah’s life. Bennett began paying child support prior to a court order and, further,

Noah lives with Bennett three months out of the year. In both Rice and the present case, the

chancellor found the potential for confusion and embarrassment insufficient to show the

child’s surname should not be changed to the father’s.

¶28.    The majority contends that the chancellor reluctantly ordered Noah’s surname to be

changed, although the record reflects differently. The chancellor made it very clear at the

beginning of the proceedings that there were exceptions to the mandate that the child take

the father’s surname and was very clear that potential embarrassment and confusion would

not be sufficient evidence to overcome the burden. Olson only presented evidence of that

kind.

¶29.    Additionally, we review this case for abuse of discretion:

        This Court will not disturb the factual findings of a chancellor when supported
        by substantial evidence unless the Court can say with reasonable certainty that
        the chancellor abused his discretion, was manifestly wrong, clearly erroneous
        or applied an erroneous legal standard.

Rice, 34 So. 3d at 557 (¶7) (internal quotation mark omitted) (quoting Powers v. Tiebauer,

939 So. 2d 749, 752 (¶6) (Miss. 2005)). The Supreme Court of Mississippi has held that

                                              13
when appellate courts:

       [R]eview[] a decision that is within the trial court’s discretion, it first asks if
       the court below applied the correct legal standard. If the trial court applied the
       right legal standard, then this Court will affirm a trial court’s decision unless
       there is a definite and firm conviction that the court below committed a clear
       error of judgment in the conclusion it reached upon weighing of relevant
       factors.

Scoggins v. Ellzey Beverages Inc., 743 So. 2d 990, 996 (¶27) (Miss. 1999). I do not believe

that we can find that the chancellor abused his discretion in following Mississippi Code

Annotated section 93-9-9(1) and mandating that Noah’s name be changed to the surname of

his father’s.

¶30.   Moreover, the role of this Court is not to substitute our ruling for that of the trial

court’s. This Court has found that we “cannot substitute its judgment of credibility for that

of the trial court, and where the record contains substantial evidence to support the trial

court’s decision, this Court lacks authority to reverse that decision.” Barnett ex rel. Gordon

v. Lauderdale Cty. Bd. of Sup’rs, 880 So. 2d 1085, 1089 (¶10) (Miss. Ct. App. 2004). In

light of the standard in Rice, I believe that there was substantial evidence to support the

chancellor’s decision.

       IRVING, P.J., AND GREENLEE, J., JOIN THIS OPINION.




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