This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C8-96-1816

In the Matter of the Application of:

Dillon James Bursell,

by

Holly Hinz, his mother and natural guardian.

Filed March 11, 1997

Affirmed

Lansing, Judge

Scott County District Court

File No. 9603438

LaMar Piper, Damain D. Sandy, Piper Law Firm, 615 Second Avenue South, P.O. Box 109, St. James, MN 56081 (for Appellant Brandon Bursell)

Michael E. Stephan, 10285 Yellow Circle Drive, Minnetonka, MN 55343 (for Respondent Holly Hinz)

Considered and decided by Lansing, Presiding Judge, Crippen, Judge, and Peterson, Judge.

U N P U B L I S H E D O P I N I O N

LANSING, Judge

The district court granted a mother's petition to change her child's surname, and the child's father appeals. We conclude that the district court's decision was not an abuse of discretion and affirm.

FACTS

Respondent Holly Hinz and appellant Brandon Bursell (Bursell) have a son who has been known by the name Dillon James Bursell since birth. Shortly before her son's fifth birthday, Hinz sought to change his surname to Hinz. Hinz later amended her petition to change the child's name to Dillon James Bursell-Hinz.

Hinz testified that the name change would be in the child's best interests. Hinz said the boy's using both surnames would provide consistency with her surname and would make it easier to connect the child to her. Hinz testified about some minor difficulties that occur because of using different surnames. Hinz's boyfriend and sister also testified that the name change would serve the child's best interests.

Bursell opposed the name change. Bursell testified that he feared that changing his son's surname would have a negative effect on his relationship with the boy, weaken the identification between the two of them, and disassociate the child from him. Bursell said he wanted to keep as much connection as possible between himself and his son because the boy would continue to live with Hinz, two hours away from Bursell's home. Bursell said he had a good relationship with his son, saw him once or twice a month, and would continue this relationship even if his son's surname were changed.

The district court granted the application and changed the child's surname to Bursell-Hinz. The court found that no foreseeable harassment or embarrassment would ensue from the change, that the child was too young to express a preference, that hyphenating the child's name would not change his relationship with either parent, and that there was no evidence on any degree of community respect associated with either name. The court also said that the mother's interest in having her child bear her surname was equivalent to the father's interest. The court concluded that the hyphenated name connected the child to both his mother and his father and that it was in the child's best interests to be recognized by both parents' hyphenated surnames.

D E C I S I O N

I

Hinz argues our scope of review is limited because Bursell did not make a motion for a new trial. But in a special proceeding, a motion for a new trial is not necessary to preserve issues for appellate review unless the legislature has indicated an intent that the special proceeding be governed by the same rules as other civil cases. Steeves v. Campbell, 508 N.W.2d 817, 818 (Minn. App. 1993).

A special proceeding is "'such a proceeding as may be commenced independently of a pending action by petition or motion, upon notice, in order to obtain special relief.'"

County of Stearns v. Schaaf, 472 N.W.2d 191, 192 (Minn. App. 1991) (quoting Chapman v. Dorsey, 230 Minn. 279, 283, 41 N.W.2d 438, 440 (1950)). The name change proceeding is a special proceeding because it is commenced by application, independent of a pending action, to obtain special relief. See Minn. Stat. §§ 259.10-.12 (1996) (statutes governing name change). The applicable statute does not provide that name change proceedings are governed by the Rules of Civil Procedure. Id. Consequently, Bursell was not required to move for a new trial to preserve issues for appeal.

II

Name changes are reviewed under the abuse of discretion standard. In re Welfare of C.M.G., 516 N.W.2d 555, 561 (Minn. App. 1994). When one parent seeks to change the surname of a child over the other parent's objection, the resolution of the dispute depends on the best interests of the child. In re Application of Saxton, 309 N.W.2d 298, 302 (Minn. 1981), cert. denied, 455 U.S. 1034 (1982); Robinson v. Hansel, 302 Minn. 34, 35, 223 N.W.2d 138, 140 (1974).

Bursell argues the district court ignored Saxton and Robinson in reaching its decision and that Saxton requires denial of Hinz's petition. We disagree.

In Robinson, a mother petitioned to change her children's surname to include their stepfather's surname. 302 Minn. at 35, 223 N.W.2d at 140. The supreme court held that changing a child's surname over one parent's objection should be done with great care and only when "the evidence is clear and compelling that the substantial welfare of the child necessitates such change." Id. at 36, 223 N.W.2d at 140.

In Saxton, a mother petitioned to change her children's surname to include her maiden name. 309 N.W.2d at 300. In a divided opinion, the supreme court referred to the clear and compelling standard from Robinson and held that the district court properly relied on Robinson to deny the mother's petition. Id. at 300-01.

But the supreme court went on to state that Saxton presented an opportunity to elucidate its decision in Robinson. Id. at 301. The court then held that a petition to change a child's surname should be granted only when the name change served the child's best interests and listed five factors to be considered in making this determination: the child's preference; the effect of the change on the child's relationship with each parent; the length of time the child had been known by a given name; the degree of community respect associated with the present and proposed names; and the difficulties, harassment or embarrassment that the child may experience from bearing the present or proposed name. Id. The court said that in weighing these factors, the district court should make findings explaining its decision. Id.

In the part of the opinion elucidating the Robinson decision, the Saxton court did not repeat the clear and compelling standard. Id. In fact, although the Saxton court concluded that the district court had not abused its discretion in determining that the children's best interests were served by keeping their given surname, it also noted that the evidence would have supported a contrary finding. Id.

The Saxton court's focus on the child's best interests as the determinative factor in a name change proceeding involving a minor is consistent with the statutes governing name change proceedings. Minn. Stat. § 259.11 provides that when the procedural requirements set forth in Minn. Stat. § 259.10 have been met, the district court shall grant the name change application unless it "finds that such name change is not in the best interests of the child." The statute imposes no elevated evidentiary standard in considering whether to grant the petition. It requires only a "best interests" analysis.

In this case, as in Saxton, the district court reiterated the clear and compelling standard from Robinson. Then, as in Saxton, the district court focused on whether the name change served the child's best interests and applied the factors identified in Saxton to make this determination. Finally, in weighing the best interests factors, the district court made the findings required by Saxton to support its decision. Thus, although the district court's findings did not explicitly refer to the clear and compelling standard, the court's entire order shows it did not ignore or misapply Saxton or Robinson in making its decision.

Nor does application of Saxton require reversal in this case. The limited evidence shows that, like Saxton, this was a close case. Two Saxton factors, the child's preference and the community respect associated with each name, were neutral. The child had been known by the Bursell surname for nearly five years. The length of time that a child has carried a given name, however, is only one of several factors to be considered. See Saxton, 309 N.W.2d at 301; Aitkin County Family Serv. Agency v. Girard, 390 N.W.2d 906, 909-10 (Minn. App. 1986) (noting district court had erred in relying on only one of Saxton factors to grant petition to change child's name). Hinz testified to some minor difficulties that occur because of using different surnames. More importantly, Bursell's argument that having the same surname as his son strengthens his relationship with the child applies equally to Hinz's relationship with the child. The record shows that the hyphenated surname will serve the child's best interests by connecting him to both his father and his mother. The name change will not weaken the father-son relationship because the child still will carry his father's surname. Given these facts and the limited record in this case, the district court did not abuse its discretion in granting Hinz's petition.

III

Hinz seeks attorneys' fees on appeal under Minn. Stat. § 518.14 (1996). "The award of attorney fees on appeal rests within the discretion of this court." Fabio v. Bellomo, 489 N.W.2d 241, 246 (Minn. App. 1992), aff'd, 504 N.W.2d 758 (Minn. 1993). Minn. Stat. § 518.14 applies to proceedings brought under chapter 518. This action was brought under chapter 259. Minn. Stat. §§ 259.10-.12 do not state that attorneys' fees may be awarded under Minn. Stat. § 518.14. Further, Bursell's appeal was not frivolous or brought in bad faith. We therefore decline to award attorneys' fees in this case.

Affirmed.