                    IN THE SUPREME COURT OF MISSISSIPPI

                                 NO. 2009-CA-00318-SCT

JESSICA NICOLE RICE

v.

SCOTT THOMAS MERKICH


DATE OF JUDGMENT:                           02/03/2009
TRIAL JUDGE:                                HON. CYNTHIA L. BREWER
COURT FROM WHICH APPEALED:                  MADISON COUNTY CHANCERY COURT
ATTORNEYS FOR APPELLANT:                    JEFFREY P. HUBBARD
                                            STACEY L. STRAIN
ATTORNEYS FOR APPELLEE:                     T. JACKSON LYONS
                                            DAVID EDWIN JAMES
NATURE OF THE CASE:                         CIVIL - DOMESTIC RELATIONS
DISPOSITION:                                AFFIRMED - 05/06/2010
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       GRAVES, PRESIDING JUSTICE, FOR THE COURT:

¶1.    Jessica Rice appeals the judgment of the Madison County Chancery Court changing

the surname of her minor child to that of the father pursuant to a paternity action. As this is

a case of first impression, this Court must interpret Mississippi Code Section 93-9-9(1) of

the Mississippi Uniform Law on Paternity. For the reasons stated herein, we affirm the

judgment of the chancellor.

                        FACTS AND PROCEDURAL HISTORY

¶2.    Jessica Rice and Scott Merkich had been dating on and off for about two years when

they discovered that Rice was approximately eight weeks pregnant in June 2007. Rice and
Merkich were living together at the time of the pregnancy. Rice and Merkich had planned

to get married, but they ultimately ended the relationship on August 25, 2007, and Rice

moved in with her parents. Rice admitted that she had dated other men while she and

Merkich were broken up, and Merkich questioned the child’s paternity. However, the parties

remained in contact after the break-up.        Prior to ending the relationship, Merkich

accompanied Rice on two doctor’s visits. After the break-up, Merkich planned to accompany

Rice to at least one other doctor’s visit, but Rice changed the date of the appointment without

informing him of the new time. Merkich also contributed to the payment of two medical bills

related to the pregnancy.

¶3.    The baby was due January 22, 2008, but was born on January 3, 2008. Rice did not

contact Merkich when she went into labor and, thus, he was not present when she gave birth

to the baby girl, which Rice named Presley Annsleigh Rice. Rice did not inform Merkich

of Presley’s birth until January 6, 2008, the day after she was discharged from the hospital.

¶4.    On January 16, 2008, Merkich filed a Petition for Determination of Paternity, seeking

paternity testing. The parties agreed to DNA testing, and the results established a 99.98

percent probability that Merkich is Presley’s father. Thereafter, Merkich filed in that same

action on March 7, 2008, a Complaint for Determination of Child Custody and Visitation.

Merkich asked for joint legal and physical custody of Presley, asked that her surname be

changed to Merkich, and stated that he was willing to pay his statutorily-required child-

support obligation. Rice filed a Response to Complaint for Determination of Child Custody

and Visitation and Respondent’s Counterclaim for Back Child Support and Other Relief on

April 1, 2008. Rice denied that Merkich should be awarded joint care, custody and control


                                              2
of the minor child. Rice also denied that Presley’s surname should be changed to Merkich.

Rice admitted that Merkich should pay child support and counterclaimed for back child

support. Merkich filed an answer on April 2, 2008.

¶5.    After a hearing for temporary relief, the chancellor entered a Temporary Order on July

10, 2008, finding that Rice and Merkich would share joint legal custody of Presley and that

Rice would maintain primary physical custody subject to Merkich’s reasonable visitation

rights. The chancellor also ordered temporary child support and set the matter for trial on

January 13, 2009. On the date of trial, Rice and Merkich filed a joint stipulation that they

agreed on all issues except those identified, which included Presley’s surname. The trial

proceeded on those issues, including Presley’s surname.             After hearing evidence and

testimony, the chancellor found that Presley’s surname should be Merkich. Subsequently,

Rice filed this appeal.

                                          ANALYSIS

¶6.    Rice raises the following issues:

       I.      Whether the trial court erred in denying Defendant’s Motion for
               Directed Verdict after Plaintiff failed to prove by clear and
               convincing evidence that it is in the minor child’s best interests for
               the trial court to change her surname.1

       II.     Whether the trial court erred in granting Plaintiff’s petition to
               change the surname of the child pursuant to Miss. Code Ann. § 93-
               9-9(1) absent proof by clear and convincing evidence that it is in the
               minor child’s best interests to do so.


       1
         A motion for directed verdict under Rule 50 of the Mississippi Rules of Civil Procedure
applies only in cases tried by a jury. Miss. R. Civ. P. 50 cmt. However, while Rice should have
filed a motion to dismiss pursuant to Rule 41(b) of the Mississippi Rules of Civil Procedure, she is
not precluded from challenging the weight or sufficiency of the evidence supporting the judgment
against her. Clements v. Young, 481 So. 2d 263, 268-69 (Miss. 1985); Miss. R. Civ. P. 41(b).

                                                 3
¶7.    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.” Powers v. Tiebauer, 939 So. 2d 749, 752 (Miss. 2005). “When reviewing

questions of law, this Court employs a de novo standard of review and will only reverse for

an erroneous interpretation or application of law.” Id.

¶8.    Mississippi Code Section 93-9-9 of the Mississippi Uniform Law on Paternity states,

in relevant part: “In the event of court-determined paternity, the surname of the child shall

be that of the father, unless the judgment specifies otherwise.” Miss. Code Ann. § 93-9-9(1)

(Rev. 2004) (emphasis added). Although the statute does not delineate those circumstances

where the “judgment specifies otherwise,” it is reasonable to conclude that those

circumstances should be examined in light of the best interest of the child, if, and only if, this

is a contested issue. In other words, “in the event of court-determined paternity,” 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.” We note that the parties assert a

clear and convincing evidence burden of proof and that in Pendleton v. Leverock, 23 So. 3d

424, 431 (Miss. 2009), this Court referenced a clear and convincing standard with regard to

a custody case involving a natural parent and a third party. However, we find that a

preponderance of the evidence is the appropriate burden of proof in the instant case.

Moreover, child-custody and adoption cases are categorically different from cases involving

changing the surname of a child to the surname of the natural father pursuant to statute.

                                                4
¶9.    In the instant case, the statute’s plain language clearly indicates that Presley’s surname

shall be Merkich unless Rice proves by a preponderance of the evidence that it is in the

child’s best interest that her surname not be Merkich. Such an interpretation is consistent

with and supported by other relevant statutory provisions and Department of Health rules.

For example, Mississippi Code Section 93-9-9(3) states:

              Upon application of both parents to the State Board of Health and
       receipt by the State Board of Health of a sworn acknowledgement of paternity
       executed by both parents subsequent to the birth of a child born out of
       wedlock, the birth certificate of the child shall be amended to show such
       paternity if paternity is not shown on the birth certificate. Upon request of the
       parents for the legitimization of a child under this section, the surname of the
       child shall be changed on the certificate to that of the father.

Miss. Code Ann. § 93-9-9(3) (Rev. 2004) (emphasis added).

¶10.   Mississippi Code Section 41-57-23(2) of the Vital Statistics Chapter provides that:

               If a child is born to a mother who was not married at the time of
       conception or birth, or at any time between conception and birth, and the
       natural father acknowledges paternity, the name of the father shall be added
       to the birth certificate if a notarized affidavit by both parents acknowledging
       paternity is received on the form prescribed or as provided in Section 93-9-9.
       The surname of the child shall be that of the father except that an affidavit
       filed at birth by both listed mother and father may alter this rule. In the event
       the mother was married at the time of conception or birth, or at any time
       between conception and birth, or if a father is already listed on the birth
       certificate, action must be taken under Section 41-57-23(1) to add or change
       the name of the father.

Miss. Code Ann. § 41-57-23(2) (Rev. 2009) (emphasis added). Rice testified that she had

failed to disclose to Merkich that Presley had been born until after she had been released

from the hospital. If Rice had informed Merkich earlier, and he had acknowledged paternity

by completing the proper forms at the hospital, then, pursuant to this section, Presley’s




                                               5
surname would have been Merkich unless both Rice and Merkich had signed an affidavit

stating otherwise.

¶11.      Such a finding is also consistent with the Rules Governing the Registration and

Certification of Vital Events by the Mississippi State Department of Health. Rule 103.04

states:

          This section details the conditions under which the father’s name may be
          entered on the certificate, the specification of the child’s name under each
          condition, and conditions under which the surname of the child may be
          different from either the father’s surname or mother’s surname if no father is
          listed. Traditionally, a child assumes the legal surname of his or her father as
          listed on the birth certificate, or of the mother if no father is listed. When the
          surname given a child is not traditional, a signed statement, witnessed by a
          hospital representative, signed by both parents or the mother if no father is
          listed, and filed with the birth certificate shall be required, but the certificate
          shall not be considered nor marked as having been amended.

Miss. Dep’t of Health R. 103.04, available at Miss. State Dep’t of Health Website,

http://www.msdh.state.ms.us/ (last accessed May 3, 2010).

¶12.      Further, Rule 18 states:

          The surname of the child shall be determined in the following manner:
          1. Mother married. If the mother was married at the time of conception or
          birth, or at any time between conception and birth, the surname of the child
          shall be that of the husband except that a statement, signed by both the listed
          mother and husband, and witnessed by a health facility representative, filed at
          the same time as the birth certificate is filed may alter this rule.
          2. Mother not married; no acknowledged father. If the mother was not
          married at the time of conception or birth, or at any time between conception
          and birth, the surname of the child shall be that of the legal surname of the
          mother, except that a statement, signed by the listed mother and witnessed by
          a health facility representative, filed at the same time the birth certificate is
          filed may alter this rule.
          3. Mother not married; acknowledged father. If the mother was not
          married at the time of conception or birth, or at any time between conception
          and birth, and the natural father acknowledges such paternity, the surname of
          the child shall be that of the father except that a statement signed by both the

                                                  6
       listed mother and the acknowledged father, witnessed by a health facility
       representative, and filed at the same time the birth certificate is filed may alter
       this rule. The Acknowledgement of Paternity affidavit may be rescinded under
       Rule 19 -- Rescission of acknowledgement of paternity, upon rescission the
       father’s information will be removed from the birth certificate and the surname
       of the child will be changed to the legal surname of the mother at the time of
       birth.
       4. Court-determined paternity. In the event of court-determined paternity,
       the surname of the child shall be that of the father, unless the judgment
       specifies otherwise.

Miss. Dep’t of Health R. 18, available at Miss. State Dep’t of Health Website,

http://www.msdh.state.ms.us/ (last accessed May 3, 2010).

¶13.   The only evidence offered by Rice that Presley should not have the surname Merkich

is possible embarrassment and confusion for Rice and Presley to have different names.

Specifically, at the hearing to determine Presley’s surname, Rice testified:

              A. Yeah. I’m her mother, and I think it would be embarrassing if I
       dropped her off at school, picked her up at school, went to church – they don’t
       understand, you know, maybe last name, but I know that does happen in the
       world today. But I want her to have the last name of Rice because that’s –
       she’s my little girl, and I wanted her this whole time. She –
              Q. So I understand – I’m sorry. I didn’t meant to cut you off.
              A. And you asked me if there’s any disadvantages. I mean, the
       disadvantage is she has a name. Her last name is Rice, and I’m sure she would
       be confused down the road why her birth certificate says something different.
       I don’t know how else to answer that question.

¶14.   Later, Rice testified as follows:

              Q. You think it would be unusual, or do you think that Presley would
       be at some disadvantage if she had a different last name than that of her
       mother?
              A. A disadvantage? Of course not. I would love her just the same no
       matter what her name is. A disadvantage? No. But I see the advantages of
       her having my last name. I have a healthy child, and that’s what’s important.




                                               7
¶15.   Rice also testified that she would have taken Merkich as a last name if she and

Merkich had married. Further, Rice testified that Merkich is a good father, who is very

involved in Presley’s life and spends as much time with her as possible.

¶16.   We find that Rice failed to prove by a preponderance of the evidence that it is in the

child’s best interest that her surname not be Merkich. In so finding, we reject Rice’s

argument that a best-interest-of-the-child analysis must be employed in each paternal

surname change pursuant to Marshall v. Marshall, 93 So. 2d 822, 825 (Miss. 1957). An on-

the-record, best-interest determination before changing a child’s surname to that of the court-

determined father in paternity cases is not required pursuant to Section 93-9-9(1) and would

serve only to impede the process of “legitimization” of children born out of wedlock.

Further, Marshall did not fall within the purview of Section 93-9-9(1), which, again, is part

of the Mississippi Uniform Law on Paternity. Paternity was not an issue in Marshall.

Instead, the issue in Marshall pertained to a name-change action subsequent to a divorce in

which the mother sought to change the surname of an eleven-year-old child from that of his

father to that of the step-father. Notwithstanding that Marshall is factually distinguishable,

this Court’s analysis in Marshall is not applicable. Again, Marshall involved a petitioner

attempting to change the child’s surname to a different surname subsequent to a divorce and

a remarriage.

¶17.   Further, the cases from Arkansas and Tennessee cited by the dissent are

distinguishable, as those states do not have similarly worded statutes. The applicable statute

in Huffman v. Fisher, 38 S.W. 3d 327, 329 (Ark. 2001), states: “In any case in which

paternity of a child is determined by a court of competent jurisdiction, the name of the father

                                              8
and surname of the child shall be entered on the certificate of birth in accordance with the

finding and order of the court.” Ark. Code Ann. § 20-18-401(e)(3) (Rev. 2005).            The

Tennessee statutes discussed in Barabas v. Rogers, 868 S.W. 2d 283, (Tenn. Ct. App. 1993),

contain a variety of options for surnames and time periods for so choosing, none of which

is similar to Section 93-9-9. See Tenn. Code Ann. § 68-3-305 (Rev. 2006).

¶18.   In the instant case, there is absolutely nothing in the record to support any conclusion

that the chancellor interpreted the statute to mean that she had no choice other than to change

the child’s surname to Merkich. In fact, the chancellor had a hearing on that issue because

the mother objected to the child’s surname being changed. After “having heard and

considered the joint stipulation made by the parties, testimony and evidence presented by

both parties and the law presented by respective counsel and the argument thereof,” the

chancellor found that the surname of the child shall be Merkich. (Judgment, Feb. 4, 2009).

Further, the chancellor specifically stated on the record that she found no reason to deny the

request to change the name to Merkich pursuant to statute.           Clearly, the chancellor

recognized that there may be cases where the general rule requiring the surname to be that

of the father does not apply. However, the chancellor also correctly found that this was not

one of those cases. The chancellor also correctly found that Rice had not proven by a

preponderance of the evidence that it was in the child’s best interest that her name not be

Merkich.

¶19.   For the reasons stated herein, we find that the chancellor’s decision is supported by

substantial evidence, was not manifestly wrong, clearly erroneous or an abuse of discretion.

Therefore, we affirm the judgment of the Madison County Chancery Court.


                                              9
¶20.   AFFIRMED.

     WALLER, C.J., CARLSON, P.J., RANDOLPH, KITCHENS, CHANDLER
AND PIERCE, JJ., CONCUR. LAMAR, J., DISSENTS WITH SEPARATE OPINION
JOINED BY DICKINSON, J.


       LAMAR, JUSTICE, DISSENTING:

¶21.   If, as this Court has held for generations, the “polestar” consideration in matters

dealing with children is the best interest of the child,2 then I must begin this dissent by asking

the question: Was the name change ordered by the chancellor in the best interest of the child,

Presley Annsleigh Rice? We, of course, don’t know, because the chancellor was clearly

under the erroneous impression that she was statutorily required to order the name change.

Because I believe our chancellors should change the name of a child only when doing so is

found to be in the best interest of the child, I respectfully dissent.


       2
        See e.g. In re Dissolution of Marriage of Leverock & Hamby, 23 So. 3d 424,
433-34 (Miss. 2009) (Chancellor's decision to sua sponte ignore admissions in child-custody
matter was error "committed with a 'proper result in mind,' the polestar consideration of the
best interests of the child.") (citing Gilcrease v. Gilcrease, 918 So. 2d 854, 856 (Miss. Ct.
App. 2005)); Lowrey v. Lowrey, 25 So. 3d 274, 281 (Miss. 2009) ("Regarding child custody,
the best interest of the child is the polestar factor.") (citing Albright v. Albright, 437 So. 2d
1003, 1005 (Miss. 1983)); S.G. v. D.C., 13 So. 3d 269, 279 (Miss. 2009) (Where the safety
and well-being of children are not being adequately protected, refusal to allow intervention
of third parties in custody battle would be "irresponsible and contrary to the polestar
consideration in such cases of the best interests of the children."); W.A.S. v. A.L.G., 949 So.
2d 31, 35 (Miss. 2007) ("The best interest of the child is a polestar consideration in the
granting of any adoption") (quoting In re V.M.S., 938 So. 2d 829, 835-36 (Miss. 2006));
Crider v. Crider, 904 So. 2d 142, 144 (Miss. 2005) ("Mississippi case law has clearly
declared time and time again that the polestar consideration in all cases dealing with child
custody and visitation is the best interest and welfare of the child.") (citations omitted);
Robison v. Lanford, 841 So. 2d 1119, 1122 (Miss. 2003) ("it is the responsibility of this
Court, like the chancellor, to make the best interest of the child our "polestar"
consideration") (citing Hensarling v. Hensarling, 824 So. 2d 583, 587 (Miss. 2002)).


                                               10
¶22.   The issue presented is whether – upon a finding of paternity – our statutes mandate

that this child’s surname be changed to her father’s name, regardless of whether such change

is in the child’s best interest. I would remand for a hearing to consider the testimony

presented in light of the best interest of the child, as the record clearly shows that the

chancellor did not apply a best-interest analysis. In my view, when there is a contested

request for a name change following a finding of paternity, the chancellor should perform

a best-interest analysis, with the moving party (the one seeking to change a child’s name)

having the burden of proof to show by a preponderance of the evidence that the name change

is in the child’s best interest.

¶23.   Mississippi Code Section 93-9-9(1) provides in relevant part that “In the event of

court-determined paternity, the surname of the child shall be that of the father, unless the

judgment specifies otherwise.” Miss. Code Ann. § 93-9-9(1) (Rev. 2004) (emphasis added).

Clearly, the Legislature contemplated that there would be occasions when a chancellor would

“specify otherwise.” The majority fails to provide much-needed guidance to the bench and

the bar as to appropriate considerations when faced with these disputes. Despite the

majority’s finding that “it is reasonable to conclude that those circumstances should be

examined in light of the best interest of the child” (Maj. Op. ¶8), it later contradicts itself by

concluding that:

       [a]n on-the-record, best-interest determination before changing a child’s
       surname to that of the court-determined father in paternity cases is not required
       pursuant to Section 93-9-9(1) and would serve only to impede the process of
       “legitimization” of children born out of wedlock.




                                               11
(Maj. Op. ¶16). This is double-speak. Clearly, a best-interest analysis should govern the

chancellor’s decision in these disputes and in all matters touching on the welfare of a child.

Contrary to the majority’s assertion, I fail to see how making a proper record for appellate

review would impede the process of “legitimization” of children born to unmarried parents.

¶24.   More than fifty years ago, this court held that “‘[a]n application to change the name

of an infant should be granted only where to do so is clearly in the best interest of the child.’”

Marshall v. Marshall, 93 So. 2d 822, 825 (Miss. 1957) (quoting 65 C.J.S. Names § 11); see

65 C.J.S. Names § 23 (2009). Although factually distinguishable, the Marshall court

established that a best-interest standard is applicable to a minor’s name change when such

a change is contested. Id. at 825, 827.

¶25.   The majority also finds (without citation to any authority) that the burden of proof in

this case rests with the mother (the nonmoving party) to prove that the child’s name should

not be changed. But see Huffman v. Fisher, 38 S.W. 3d 327, 329 (Ark. 2001) (“The burden

of proof is on the moving party to demonstrate that the change is in the best interest of the

child.”); Barabas v. Rogers, 868 S.W. 2d 283, 287 (Tenn. Ct. App. 1993) (same). There is

no dispute that this child’s name was properly recorded on her original birth certificate as

Presley Annsleigh Rice. Notably, Rice testified that Merkich was not listed on the birth

certificate, because he had denied that Presley was his child and “had taken himself out of

[her] life months prior.” Further, the Mississippi Department of Health has provided that,

“[i]f the mother was not married at the time of conception or birth, or at any time between




                                               12
conception and birth, the surname of the child shall be that of the legal surname of the

mother . . . .” 3

¶26.    Without explicitly so finding, the majority seems to accept Merkich’s argument that

Section 93-9-9(1) creates a presumption that bearing the paternal surname is in the best

interest of the child. In my opinion, no presumption exists in favor of either party and any

such legislatively created presumption would raise serious Equal Protection concerns.4 Yet

without finding any presumption exists, the majority inexplicably refuses to place the burden

of proof on the party seeking relief from the court.

¶27.    The learned chancellor clearly made her decision based on her interpretation of the

statute, that is, that she had no option but to give the child her father’s name:

               Scott Thomas Merkich shall be listed as the biological father of the
        minor child upon the birth certificate of the child. And pursuant to the statutes
        of our state, now having determined paternity, the surname of the child shall
        be that of the father, finding no reason for which to deny said name request
        pursuant to the statute. The statute is very clear to this Court, indicating the
        word “shall.” Therefore, the minor child shall, therefore, be known as Presley
        Annsleigh Merkich.

        3
        Miss. Dep’t of Health R. 18(2) (emphasis added), available at Miss. State Dep’t of
Health Website, http://www.msdh.state.ms.us/ (enter Rules Governing the Registration and
Certification of Vital Events in search box) (last accessed April 5, 2010); cf. Hemphill-
Weathers v. Farrish, 779 So. 2d 167, 172 (Miss. Ct. App. 2001) (“[T]he natural mother of
[a child born out of lawful matrimony], when no father has taken steps to prove or formally
assert his paternity, is the custodial parent with the legal authority to make day to day
decisions concerning the welfare of the minors.”).
        4
        See Miss. Univ. for Women v. Hogan, 458 U.S. 718, 725-26 102 S. Ct. 3331, 73 L.
Ed. 2d 1090 (1982) (requiring a close relationship between a state’s objective and means in
order to assure that the “validity of a [gender] classification is determined through reasoned
analysis rather than through the mechanical application of traditional, often inaccurate,
assumptions about the proper roles of men and women”); see also Rio v. Rio, 504 N.Y.S.2d
959, 962 (N.Y. Sup. 1986) (finding that “Equal Protection arguments against a paternal
surname presumption are most persuasive”).

                                               13
Her interpretation was erroneous. Accordingly, I would remand this case for the chancellor

to consider the proof in light of the best interest of this child. I realize that, upon remand, the

chancellor might reach the same conclusion. I want to be clear that it is not the result in this

case that concerns me. It is the fact that the decision was made without a finding that it was

in the best interest of the child.

¶28.   This child was an infant of less than a year old when this dispute found its way to our

courts. She was much too young even to know her last name. However, the decision handed

down today will apply as well to children much older than this child. I can envision that in

many of those cases there may be very legitimate reasons why it would not be in a child’s

best interest to have his or her surname changed. Our bench and bar deserve some clear

guidance when faced with those situations, and unfortunately they are not getting it today.

For the foregoing reasons, I dissent.

       DICKINSON, J., JOINS THIS OPINION.




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