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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Acevedo v. Burley (12/30/99) sp-5227

Acevedo v. Burley (12/30/99) sp-5227

     Notice:  This opinion is subject to correction before publication in
the Pacific Reporter.  Readers are requested to bring errors to the attention of
the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.



             THE SUPREME COURT OF THE STATE OF ALASKA
                                 

GUSTAVO ACEVEDO,              )
                              )    Supreme Court No. S-8079
             Appellant,       )
                              )    Superior Court No.
     v.                       )     4BE-90-139 DR
                              )
DENISE BURLEY, N/K/A          )    O P I N I O N
DENISE LIBERTY,               )
                              )
             Appellee.        )    [No. 5227 - December 30, 1999]
______________________________)



          Appeal from the Superior Court of the State of
Alaska, Fourth Judicial District, Bethel,
                      Dale O. Curda, Judge.


          Appearance:  Gustavo Acevedo, pro se, Bethel. 
Christopher R. Cooke, Hedland, Brennan, Heideman & Cooke, Bethel,
for Appellee. 


          Before: Matthews, Chief Justice, Compton,
Eastaugh, Fabe, and Bryner, Justices.  


          MATTHEWS, Chief Justice.
          EASTAUGH, Justice, with whom FABE, Justice,
joins, dissenting.


          The question presented is whether the trial court should
have enjoined a divorced mother from changing the surname of her
child without following statutory change of name standards.  In
accordance with the weight of authority in other jurisdictions we
conclude that the statute should be followed and that the mother
should be enjoined from informally changing the child's name. 
          Gustavo Acevedo and Denise Liberty were divorced in 1991. 
They have one child, Amanda Acevedo, born in June 1989.  Denise was
awarded custody of Amanda and Gustavo was granted reasonable
visitation rights.  The divorce decree provided that Denise could
"continue or resume"use of her maiden name, Liberty.  Denise
married Mike Burley in 1993 and took his surname.
          Denise registered Amanda for first grade in 1995 as
Amanda Burley.  Gustavo objected and asked Denise to reregister
Amanda under her legal name.  When Denise took no action, Gustavo
filed a motion requesting an order that "Amanda's proper name be
used in all circumstances legally and personally." Denise opposed
the motion.  She contended that Amanda's legal name "is still
Amanda Denise Ardene Acevedo"but that, "as a practical matter,
Amanda prefers to identify herself as Amanda Burley in order to use
the same last name as her mother with whom she lives." In reply,
Gustavo contended that Denise's objective was a de facto change of
Amanda's name.  He also noted that Denise had registered Amanda's
last name as Liberty for an airline mileage program.  The superior
court denied Gustavo's motion without stating reasons.  Gustavo
appeals from the order of denial. 
          Gustavo notes that whether a trial court should grant
injunctive relief requiring that a child's real name be used is an
issue of first impression in Alaska.  He argues that precedent in
other jurisdictions confirms that injunctive relief is generally
appropriate. 
          Denise filed no brief on appeal.  But her attorney filed
a one-page letter stating that she lacked the resources to
participate formally.  Her attorney's letter asserts that a person,
including a child, "can adopt and abandon at will any surname"so
long as it does not infringe on the rights of others, and is not
done "for fraudulent purposes." The letter also indicates that
Denise had divorced Mike Burley and reassumed her maiden surname,
Liberty.
          The parties agree that Amanda's legal surname is Acevedo. 
Alaska has a statute governing name changes [Fn. 1] and a civil
rule which sets out the procedure for name changes. [Fn. 2]  Under
the statute, a change of name "may not be made unless the court
finds sufficient reasons for the change and also finds it
consistent with the public interest."[Fn. 3]  Under Civil Rule
84(e), if a parent objects to the proposed name change of a child,
the court "shall only grant the name change if the court finds the
name change to be in the best interest of the child."[Fn. 4]  The
desires of a child "old enough to express the same"should also be
considered in determining whether to grant a requested name change.
[Fn. 5]  The statutory and civil rule change of name provisions
have not been followed in this case.
          As we will discuss, cases in other jurisdictions
generally support Gustavo's contentions that a custodial parent may
not change a child's name without following applicable change of
name statutes and that efforts to effect a de facto name change
should be enjoined.
          In re Marriage of Presson [Fn. 6] represents these views. 
In many respects the facts were similar to those presented here. 
The mother was a custodial parent of the parties' seven-year-old
child. [Fn. 7]  She initially sought both a legal and a de facto
change of the child's surname to that of her new husband. [Fn. 8] 
The father requested an injunction. [Fn. 9]  The mother agreed not
to attempt a legal name change.  The trial court enjoined efforts
to make a de facto change, ordering the mother and the child to use
only the child's legal name. [Fn. 10]  On appeal the intermediate
appellate court reversed on the basis that the trial court had
"virtually ignored"the child's testimony that he wanted to use the
mother's new name while living with the mother and the father's
name while visiting the father. [Fn. 11]
          The Supreme Court of Illinois reversed the decision of
the intermediate court.  It rejected the mother's contention that
the child had a common-law right to change his name without resort
to legal proceedings.  The court held that a change in a minor's
surname "shall be allowed only when the court finds that change is
in the best interest of the minor."[Fn. 12]  The court described
the circumstances relevant to such a determination:
               To determine the best interest of the
child, the court should consider the express wishes of the child
and of both parents, the stated reasons for the proposed change,
the child's age and maturity, the nature of the family situation,
the strength of the tie between the child and each parent, any
misconduct toward or neglect of the child by the parent opposing
the change, and the name by which the child has customarily been
called.[ [Fn. 13]]

          The Presson court also disagreed with the intermediate
court's conclusion that the trial court erred in not giving weight
to the seven-year-old child's wishes:
          The standard is the best interests of the
child, but the child at this stage in his development is not
necessarily an able judge of what his best interests are since
neither his emotional nor his mental development are complete.[[Fn. 14]]

          While the Presson court upheld the trial judge's order
requiring the mother not to change the child's name, the court
noted that the terms of the order were too broad.  The order seemed
to extend 
          to informal situations within the family. 
There are some relationships which the law does not have the
capacity to control -- the name a child asks others to call him on
the playground is one of them.  It would be extremely difficult to
enforce such an order. . . .  

               Although we appreciate that the
consistent use of a single name is important to the child's
emotional development, we will not approve the entry of an order
which the circuit court cannot enforce.  Thus, we cannot prevent
[the mother] from calling her son [by his stepfather's surname] or
by any other name or nickname within her own living room, and no
order should be directed towards enjoining her from referring to
him by a name other than [that of the father] within the family
confines.[ [Fn. 15]]

In accordance with these observations, the Illinois Supreme Court
directed that the injunction be narrowed so that it merely
prevented the mother from using any name other than the child's
legal name "in any official records, including school, medical or
hospital records or membership applications."[Fn. 16]
          We agree with the Presson decision.  Other authorities
that also hold that a custodial parent should be enjoined from
making a de facto change of a child's name include Brown v.
Carroll; [Fn. 17] Young v. Young; [Fn. 18] Halloran v. Kostka; [Fn.
19] and In Interest of Griffiths. [Fn. 20]  [Fn. 21] 
          In accordance with Presson and the other case law cited
above, we conclude that the trial court should have granted
injunctive relief requiring that Amanda's real name be used in
matters of record.  But the court need not enjoin all private or
personal use by Denise or Amanda of another surname.  Further, we
do not intend to imply that Denise should be precluded from seeking
a legal change of Amanda's surname pursuant to AS 09.55.010 and
Civil Rule 84.
          REVERSED and REMANDED for further proceedings consistent
with this opinion.

EASTAUGH, Justice, with whom FABE, Justice, joins, dissenting.  
          Because the court holds that it was error to deny
Gustavo's request for permanent injunctive relief despite the
absence of evidence supporting that request, I dissent.
          We should apply the abuse of discretion standard in
reviewing the order that denied Gustavo's injunction request. [Fn.
1]  We apply this standard in reviewing temporary and preliminary
injunctions, [Fn. 2] and have applied it in reviewing restraining
orders. [Fn. 3] 
          Gustavo filed a motion seeking an order requiring that
the child's "proper name"be used.  His motion papers asserted that
Denise had enrolled Amanda in school as "Amanda Burley"in 1996;
had not complied with Gustavo's request that the "proper name"of
Acevedo be used "in all legal documents and in her presence"; and
had arranged airline travel for "Amanda Liberty"in August 1996. 
He asked the court to enter an order requiring that "Amanda's
proper name be used in all circumstances legally and personally."
He submitted a proposed order that would have required Denise to
tell Amanda "her last name is Acevedo and explain to Amanda that
she is to only use the last name of Acevedo"; to use only the
"proper name"of Acevedo on all documents; and to correct any
documents using a different name. 
          Although it appears that Gustavo was seeking a permanent
injunction, Gustavo's motion was not supported by any affidavit or
equivalent document (verified motion or memorandum) demonstrating
the absence of fact disputes.  Moreover, he did not request a
hearing or a trial on the merits so that he could present
additional evidence. [Fn. 4]
          Denise opposed Gustavo's motion.  Her attorney argued
that Denise had not attempted to change Amanda's name legally; that
Amanda, then seven, preferred the name of Burley; that no statute
or rule prohibited Amanda from using a last name other than her
"legal one"; that Gustavo had cited no supporting legal authority;
and that Gustavo had alleged no facts indicating that using
"Acevedo"would be in the child's best interests.  Denise stated in
an affidavit that Amanda's knowledge that her last name was
different from Denise's had caused Amanda "some personal difficulty
. . . in dealing with friends, playmates and school"; that Denise
understood Amanda's "last name legally is Acevedo"; that Denise
"ha[d] not taken any steps to change"Amanda's last name; that she
believed requiring Amanda "always"to use her legal surname would
cause Amanda "mental anguish and emotional distress"; and that she
believed it was in Amanda's best interest to use the name "Burley"
in dealing with friends and school.  She denied any intent to limit
Gustavo's visitation or other parental rights.
          Gustavo filed a reply memorandum and an affidavit, in
which he swore that Amanda had told him "on numerous occasions
. . . that I am not her father and that her mother told her she
didn't have a father."
          The superior court summarily denied Gustavo's motion. 
          An injunction should not be granted unless the movant
establishes a state of facts justifying injunctive relief. 
Gustavo's motion papers did not establish facts entitling him to a
permanent injunction.  His original motion papers contained no fact
averments made under oath.  They alleged facts that were not
confirmed in an affidavit.  Denise's opposition did not concede the
facts needed for an injunction, and her affidavit did not set out
facts demonstrating that Gustavo was entitled to relief.  Gustavo's
reply to her opposition was supported by his short affidavit, but
it did not contain factual allegations that would have justified
entry of an injunction.
          What facts had to be established?  Under the court's view
today, and considering the scope of the relief it grants, [Fn. 5]
apparently all that need be shown is that one parent might be using
a name other than the child's legal name "in any official records,
including school, medical or hospital records or membership
applications."[Fn. 6]  It concludes that the superior court should
have granted injunctive relief "requiring that Amanda's real name
be used in matters of record."[Fn. 7]
          The facts before the superior court derive from Gustavo's
unsworn motion and reply memorandum and from unauthenticated
exhibits including a school evaluation form for "Amanda Burley"and
an airline itinerary for "Amanda Liberty." Simply attaching those
pages to his motion was not sufficient to establish facts requiring
injunctive relief. [Fn. 8]  Denise's opposition did not concede the
truth of any of Gustavo's material fact assertions.
          In my view, Gustavo did not sufficiently establish any 
facts that would have entitled him to an injunction under this
court's view of the controlling law.  I therefore conclude that the
superior court did not abuse its discretion in denying Gustavo's
motion.
          Alternatively, we should affirm because a permanent
injunction should not be granted if there are relevant unresolved
fact disputes.  Since this case poses unresolved and relevant fact
disputes, I would hold that the superior court did not err in
denying Gustavo's motion.
          Denise produced evidence permitting but not compelling
reasonable persons to conclude that a name change was in Amanda's
best interests.  This raised a genuine fact dispute.  Was that
dispute material to the injunction issue?  The court's ruling today
necessarily considers any question of the child's best interests to
be irrelevant unless one parent has sought a formal name change.
[Fn. 9]  There was no formal name-change petition here.
          I am not prepared to hold that the child's best interests
are altogether irrelevant in deciding whether to grant an
injunction.  Nor am I prepared to hold that a request for an
injunction must be granted just because there is a deviation from
the child's legal name in "matters of record." Gustavo
demonstrated no substantive reason why a name change was not in
Amanda's best interests.  And he cited no authority supporting his
demand for an injunction.  On appeal, he continues to argue, with
no legal support, that he has an unqualified right to demand that
Denise use Amanda's formal surname for all purposes on all
occasions.  Under these circumstances, the superior court did not
abuse its discretion in denying his request for injunctive relief. 
          Such cases potentially raise disputes about whether a
child's name may be changed by one parent over the other parent's
objection without satisfying the requirements for a formal name
change. [Fn. 10]  Policy arguments support each side on this issue. 
We have rarely considered name-change issues, [Fn. 11] and have not
previously resolved this issue.  This appeal turns solely on
whether Gustavo demonstrated that he was entitled to injunctive
relief.  Because I think he did not, I would affirm the superior
court's denial of his motion.



                            FOOTNOTES


Footnote 1:

     AS 09.55.010.


Footnote 2:

     Alaska R. Civ. P. 84.


Footnote 3:

     AS 09.55.010.


Footnote 4:

     Alaska R. Civ. P. 84(e).


Footnote 5:

     Id.


Footnote 6:

     465 N.E.2d 85 (Ill. 1984).


Footnote 7:

     Id. at 86.


Footnote 8:

     Id.


Footnote 9:

     Id.


Footnote 10:

     Id.


Footnote 11:

     Id. 


Footnote 12:

     Id. at 87.


Footnote 13:

     Id. at 88.


Footnote 14:

     Id.


Footnote 15:

     Id. at 90.


Footnote 16:

     Id.


Footnote 17:

     683 S.W.2d 61, 63 (Tex. App. 1984) ("We hold that it is not in
the best interest of the children for the mother to allow the use
of the stepfather's name without a legal name change . . . .").


Footnote 18:

     356 N.W.2d 823, 824 (Minn. App. 1984) (De facto name change
enjoined.  "A name change risks alienating [the father] and
jeopardizes the parent/child relationship.  It risks confusion for
[the child].  In contrast, there is no evidence to suggest that a
name change is in the substantial best interests of [the child].").


Footnote 19:

     778 S.W.2d 454, 456 (Tenn. App. 1988) (quoting 57 Am. Jur. 2d
Name sec. 14) ("[A] change of name merely to save the mother and
child
from minor inconvenience or embarrassment will not be authorized
against the father's objection.  Where, however, the child's
substantial interests require a change of name, as where the
father's misconduct has been such as to justify a forfeiture of his
right, or where his name is positively deleterious to the child,
the change may be permitted.").


Footnote 20:

     780 S.W.2d 899, 900-901 (Tex. App. 1989) ("[Mother] had no
right to unilaterally and extrajudicially change [child's]
surname." "Even if this case did involve a petition for name
change of a minor, which it does not, the burden would be on [the
mother] to establish that the name change would be in the best
interest of the child.").


Footnote 21:

     We know of only one contrary case, but find it unpersuasive. 
In Azzara v. Waller, 495 So.2d 277 (Fla. App. 1986), the appellate
court affirmed the judgment of the trial court which refused both
to change the name of the eight-year-old child to that of her
stepfather and to enjoin the mother from requiring or encouraging
the child to use the stepfather's surname.  The court left the
matter to the child: "When her surname becomes important to her,
she can decide this issue for herself and leave this Court to
decisions with which it feels much more comfortable." Id. at 279. 
As the Illinois court did in Presson, we disagree with this 
rationale.




                      FOOTNOTES   (Dissent)


Footnote 1:

     See Carroll v. Carroll, 903 P.2d 579, 582 n.7 (Alaska 1995)
("We apply an abuse of discretion standard to the trial court's use
of its equitable power."); North Kenai Peninsula Rd. Maintenance
Serv. Area v. Kenai Peninsula Borough, 850 P.2d 636, 639 (Alaska
1993).  


Footnote 2:

     See North Kenai Peninsula Rd. Maintenance, 850 P.2d at 639
("This court applies an abuse of discretion standard when reviewing
an order granting a temporary injunction.  The same standard
applies when reviewing an order denying a preliminary injunction."
(Citations omitted.)).  


Footnote 3:

     Cf. Pieper v. Musarra, 956 P.2d 444, 446 (Alaska 1998)
("Pieper argues that the superior court erred in granting Musarra
a restraining order.  We conclude that the superior court did not
abuse its discretion in permanently enjoining Pieper from
interfering with Musarra's use and occupancy of the partnership's
assets."). 


Footnote 4:

     See Alaska R. Civ. P. 65(a), (b).  Although these rules apply
to preliminary injunctions and temporary restraining orders, if
insufficient supporting evidence is filed with a request for a
permanent injunction a hearing or trial should likewise be held. 


Footnote 5:

     On remand, the trial court is to enjoin Denise from making a
de facto change of Amanda's name and issue an injunction requiring
that Amanda's real name be used in all matters of record.  Slip Op.
at 7-8.


Footnote 6:

     Slip Op. at 6.


Footnote 7:

     Id. at 7.


Footnote 8:

     Cf. State v. Kluti Kaah Native Village of Copper Ctr., 831
P.2d 1270 (Alaska 1992) (single affidavit filed in support of
injunction failed to establish necessary factors for issuance of
injunction).


Footnote 9:

     See Alaska R. Civ. P. 84; AS 09.55.010.


Footnote 10:

     See generally Merle H. Weiner, "We Are Family": Valuing
Associationalism in Disputes Over Children's Surnames, 75 N.C. L.
Rev. 1625, 1761-77 (1997).  See also In re Marriage of Schiffman,
620 P.2d 579, 584 (Cal. 1980) (Mosk, J., concurring) ("Since the
law has long recognized the ability and right of the parent with
custody to choose among the innumerable alternative courses
involving the child's welfare, I can see no rational reason to deny
that parent a similar right to select the name with which the child
will be more comfortable.").


Footnote 11:

     Cf. Lone Wolf v. Lone Wolf, 741 P.2d 1187, 1191-92 (Alaska
1987) (rejecting appellant's contention that superior court --
presiding over divorce action -- had jurisdiction to change minor's
name).