This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-01-364

 

In the Matter of the Application of:
Mary Greenwood for a name change

on behalf of Alyssa Hazlewood, a minor.

 

Filed September 26, 2001

Reversed and remanded

Crippen, Judge

Concurring specially, G. Barry Anderson, Judge

 

Hennepin County District Court

File No. CN0014033

 

 

Robert A. McLeod, McLeod & Troy, PA., 2550 University Avenue, Suite 459S, St. Paul, MN 55114 (for appellant father)

 

Melanie A. Flores, Smith, Paulson, O’Donnell, & Associates, P.L.C., 207 South Walnut Street, P.O. Box 668, Monticello, MN 55362-0668 (for respondent mother)

 

            Considered and decided by Toussaint, Presiding Judge, Crippen, Judge, and Anderson, Judge.

 

U N P U B L I S H E D   O P I N I O N

 

CRIPPEN, Judge

 

            Appellant Stephen Mastey appeals from a trial court decision granting the petition of Respondent Mary Greenwood to change the surname of the child of the parties.  Because the record is inadequate to permit review, we reverse and remand.

FACTS

            Respondent Mary Greenwood filed an application to change the surname of her daughter, A.H., from Hazlewood, respondent’s maiden name, to her married name.  Appellant Stephen Mastey, A.H.’s natural father, objected and filed a competing application to change A.H.’s surname to Mastey. 

            The trial court conducted a hearing on December 12, 2000 off the record.  The court granted respondent’s application, finding that the child’s best interests were served by this change of name.  On appeal, appellant argues that the trial court improperly applied Minnesota law, failed to make adequate findings, and clearly erred in its findings.

Appellant’s statement of the proceedings filed with this court was not approved by the trial court pursuant to Minn. R. Civ. App. P. 110.03.  On June 29, 2001, the trial court filed a modified statement of the proceedings.  Despite the court’s modified statement of the proceedings, this court does not have an adequate record from which to review the proceedings.  The trial court asserts disagreements with the appellant’s proposed statement, but these are largely in the nature of reasons for the court’s decision.  See Hedburg v. Hedburg, 412 N.W.2d 43, 46-47 (Minn. App. 1987) (modification of child support reversed and remanded where no transcript available and record inadequate; parties’ assertions and accusations not supported by available record, and unclear whether trial court considered appropriate factors).

D E C I S I O N

For the reasons stated in this opinion, we remand the case to the trial court for an evidentiary hearing on the record.

1.  The trial court’s decision rests partly on its explanation, stated in its memorandum, that appellant’s relationship with A.H. is not significantly eroded by the change respondent proposes.  The natural parents in this case were never married and A.H. has never used appellant’s surname.  Cf. Robinson v. Hansel, 302 Minn. 34, 35-36, 223 N.W.2d 138, 140 (1974) (holding that when natural parents were married and child used name of natural father, surname change could weaken, if not sever, the link between a father and child).  But in Robinson the supreme court declared as a matter of law the importance of preserving the relationship between a father and his child.  Id.

The trial court did not directly address the question posed by appellant: whether identification of A.H. with the stepfather’s surname may have an adverse impact on her relationship with appellant, her natural father.  And the existing record does not permit a determination of that issue.  The trial court should make findings, based on matters of record, explaining whether it is in the best interests of A.H., because of the desire to protect her relationship with her natural father, to preserve her present name.

2.  Relevant to the importance of appellant’s relationship with A.H., the trial court found that appellant “did not play an active role in [A.H.’s] life until recently.”  Appellant’s undisputed affidavit suggests that appellant has enjoyed “significant visitation” with A.H. since her birth.  The existing record does not support the trial court’s finding. 

3.  The trial court determined that A.H. is “bright,” “well adjusted,” and “fully capable of understanding who her natural parents are no matter what name she takes.”  The existing record does not support this finding.

4.  The trial court observed that any consideration of appellant’s relationship with A.H. may be outweighed by the implications of the child having a surname that differs from that of other “members of the household where she lives including, importantly, her half-siblings.”  The existing record does not permit determining the basis for the court’s concern.

5.  The trial court determined, in a conclusory finding, that “[c]learly, it is in [A.H.’s] best interests to have her name changed to either Mastey or Greenwood.”  Implied in this observation is the significance of each parent’s choice to propose that the child have a surname other than Hazlewood, the surname A.H. has used since her birth.  The common interest of the parents in changing the child’s name does not answer the fundamental issue in this case:  Has either party sustained the burden to show that a change of name is in A.H.’s best interests?  The existing record and the trial court’s findings do not sustain its best-interests statement.      

Reversed and remanded.

 

ANDERSON, Judge (concurring specially)

            I reluctantly concur in the majority disposition, only because I am persuaded that father - appellant did not have an adequate opportunity to present and argue his counter petition to change the minor child’s surname to his surname.

            But it is important to understand the circumstances at issue here.  Father and mother were never married.  The minor child has never used father’s surname.  Both parties agree that it makes sense to change the surname of the child, given that it is a name no longer used by either parent.  While father would have us believe that the name change requested by mother will have some unarticulated, as yet unknown, negative bearing on the relationship between the minor child and himself, the district court here found that “[the child] seems to be fully capable of understanding who her natural parents are no matter what name she takes.”  While the record may be wholly unsatisfactory in other respects, that finding is not disputed by anyone. 

            Father makes the statement in his brief that “[t]o change Alyssa’s name to Greenwood would only weaken the bond Alyssa shares with her father.”  Father offers no evidence, either by way of offer of proof in the district court, or by argument to this court, that such is the case.  Further, although father cites as authority the seminal case on name-change disputes between custodial and non-custodial parents, Robinson v. Hansel, 302 Minn. 34, 223 N.W.2d 138 (1974), father leaves unsaid the fact that in Robinson all four children bore the noncustodial father’s name and all were children of the marriage.  Id. at 35, 223 N.W.2d 140.

            Robinson does not apply where the biological parents were not married and it is time to affirmatively recognize this reality.  See Aitkin County Family Serv. Agency v. Girard, 390 N.W.2d 906, 908 (Minn. App. 1986) (questioning the weight of Robinson in cases where the biological parents were never married). 

The supreme court correctly recognized that a name-change petition, where the minor child is born of a marriage and carries the nonmoving party’s name, has serious implications for the relationship between the nonmoving parent and the child.  Robinson, 302 Minn. 35-36, 223 N.W.2d 140.  But those concerns are usually not present in the sad, but increasingly common, circumstances we find here – nearly thirty years after Robinson  – children born and raised without the benefit of married parents.

            I do not mean to suggest by this concurring opinion that there are no circumstances under which a never-married father might argue that a child should properly bear his name.  Nor do I suggest that the change of name has anything to do with the father’s rights to unimpeded visitation and to fully participate in his daughter’s life; there is at least a hint in the record that mother may not have been fully cooperative in this regard.

            It is very difficult to imagine circumstances justifying a change to father’s surname; but by virtue of the majority decision here, and properly so, appellant will have the opportunity to produce evidence on this point, if evidence is to be had.