Opinions, October 6, 2015

This morning, the First District Court of Appeals released a published opinion regarding the name change of a child in Anderson v. Dainard, No. 01-15-00081-CV and the Fourteenth released its memorandum opinion in a habeas corpus proceeding, In re Harrison, No. 14-15-00545-CV.

In Anderson v. Dainard, out of the 308th, the parties had a brief romantic relationship. After the relationship ended, Anderson told Dainard she was pregnant. Dainard didn’t believe her and asked Anderson to consent to a paternity test, but Anderson did not. A.A.A. was born in April 2012 and Anderson gave her her own surname. Later, the OAG filed a parentage and child support action against Dainard. The trial court ordered testing and Dainard was established as the biological father.

Anderson and Dainard later agreed to temporary orders which named them as JMCs, with Anderson as primary and Dainard getting limited visitation with A.A.A. Eventually, the parties entered an MSA which resolved almost all issues and gave Dainard a step up to SPO. The one remaining issue that went to trial in July 2014: Dainard had requested the child’s last name be changed to his own.

The parents both testified as to why it was in the child’s best interest to have his or her surname. Dainard testified he regularly saw the child, but she lived primarily with Anderson and her having the same last name would establish a bond between them. He did state on cross examination that he would love the child regardless of what her name was.

Anderson testified that A.A.A. spent 90% of her time with Anderson during the first years of her life; that A.A.A. is aware of her full name; that A.A.A. is close to her grandmother who also uses the surname Anderson; that she would not change her own surname if she married; that keeping A.A.A.’s surname would be less confusing; and she conceded changing A.A.A.’s name to Dianard would not change A.A.A.’s relationship with Anderson. Anderson also testified that she is more committed to parenting and A.A.A.’s well-being than Dainard, alleging that Dainard had a habit of rescheduling or postponing visitation with his daughter for reasons having to do with this car, his pet, his work, etc. Dainard testified that he is meeting his obligations in supporting A.A.A. and regularly visits her.

The trial court granted the name change and Anderson appealed. Her sole issue on appeal is that the trial court abused its discretion by granting the name change because the evidence was not legally and factually sufficient.

The Court of Appeals reviewed the applicable law: Section 45.004 of the Texas Family Code permits a court to order a child’s name change “if the change is in the best interest of the child,” and, in the context of adjudicating parentage, section 160.636(e) permits a trial court to order the name change “[o]n request of a party and for good cause shown.”

As the Court of Appeals said, the best interest of the child is paramount and “the interests of the parents are irrelevant.” Relying on In re A.E.M., 455 S.W.3d 684, 690 (Tex.App.–Houston [1st Dist.] 2014, no pet.), the Court of Appeals listed the six non-exclusive factors to consider in name change cases:

(1) the name that would best avoid anxiety, embarrassment, inconvenience, confusion, or disruption for the child, which may include consideration of parental misconduct and the degree of community respect (or disrespect) associated with the name;
(2) the name that would best help the child’s associational identity within a family unit, which may include whether a change in name would positively or negatively affect the bond between the child and either parent or the parents’ families;
(3) assurances by the parent whose surname the child will bear that the parent will not change his or her surname at a later time;
(4) the length of time the child has used one surname and the level of identity the child has with the surname;
(5) the child’s preference, along with the age and maturity of the child; and
(6) whether either parent is motivated by concerns other than the child’s best interest—for example, an attempt to alienate the child from the other parent.

In its analysis, the Court of Appeals reviewed the evidence for both sides –which amounted to he said/she said–and essentially called it a coin flip: “The decision the trial court was called upon to make was a difficult one to be sure.” Citing the abuse of discretion standard, the Court of Appeals affirmed the trial court’s granting of the name change.

I have to admit, based solely on reading the opinion, I found the mother’s testimony more compelling, but as the Court of Appeals recognized, the trial court is the best judge of the credibility of the witnesses. A compelling argument on paper can be undone by poor, inconsistent, or unpersuasive presentation.

The Fourteenth’s memorandum decision in In re Harrison out of the 311th is interesting to me because I have a particular interest in habeas corpus cases. When I started this blog, I had set myself the goal of reading all the Texas appellate decisions which cited Slavin. That project has fallen by the wayside because of time constraints unfortunately.

The confinement of Relator as a result of her violation of the trial court’s orders was overruled for two reasons: 1) the commitment order did not include the provisions of the order for which enforcement was requested as required by Tex. Fam. Code 157.166; and 2) seven days was too long to wait for the trial court to issue a contempt order after the trial court’s confinement of the Relator and signing of the commitment order. Relator was ordered discharged from custody.

This just goes to show once again that enforcement by contempt requires a high level of detail and that a judgment on the merits in the movant’s favor can be undermined by any of a number of small, technical details. (I’m referring to the failure to quote or attach a copy of the order to the enforcement order. Arguably, spending seven days in confinement when three is impermissible is not a small, technical detail to the Relator.)

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