In re the Paternity of J.A.S.: H.S. v. N.L. (mem. dec.)

MEMORANDUM DECISION May 18 2015, 9:27 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Cara Schaefer Wieneke Mark J. Roberts Wieneke Law Office, LLC Darren A. Craig Plainfield, Indiana Abigail T. Rom Frost Brown Todd LLC Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In re the Paternity of J.A.S.: May 18, 2015 Court of Appeals Case No. H.S., 49A05-1407-JP-345 Appeal from the Marion Circuit Appellant-Respondent, Court v. The Honorable Louis F. Rosenberg, Judge

N.L., The Honorable Sheryl L. Lynch, Master Commissioner Appellee-Petitioner. Cause No. 49C01-1112-JP-49079

Brown, Judge. Court of Appeals of Indiana | Memorandum Decision 49A05-1407-JP-345 | May 18, 2015 Page 1 of 14 [1] H.S. (“Mother”) appeals the trial court’s final order dated June 25, 2014.

Mother raises two issues, which we revise and restate as whether the court

abused its discretion in granting the request of N.L. (“Father”) to change the

last name of J. (“Child”) to Father’s last name and in not entering a child

support arrearage. We affirm.

Facts and Procedural History [2] Child was born in November 2011. On December 30, 2011, Father filed a

Verified Petition to Establish Paternity, Parenting Time, Child Support and

Related Matters, and for an Order for Paternity Testing. In the petition, Father

requested the court to order the parties to cooperate in paternity testing for

Child, award him reasonable parenting time, order him to pay Mother a

reasonable amount of child support, and order that Child’s last name be

changed from Mother’s last name (“Maternal Name”) to Father’s last name

(“Paternal Name”). [3] On March 12, 2012, following a hearing, the court ordered the parties to

complete DNA testing, and a subsequent a DNA test established that Father

was Child’s biological father. Following a hearing on August 15, 2012, the

court entered its Preliminary Agreed Order of August 15, 2012 Hearing,1

providing that Mother have primary physical custody of Child, that Father have

parenting time as set by the court, and that Father pay child support to Mother

1 The order was noted on the chronological case summary on September 24, 2012.

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of $246 per week until he begins overnight parenting time. The order stated

that the issue of the last name of Child and all other issues would be heard at

the final hearing. [4] The court held evidentiary hearings on March 14, 2013, January 9, 2014, and

March 25, 2014, at which the parties presented evidence and arguments

regarding the issues of Child’s last name, parenting time, and child support. At

the March 14, 2013 hearing, Father testified that, prior to the birth of Child, he

and Mother had agreed that Child’s last name would be Paternal Name, but

that, after the birth of the Child, Mother would not sign an affidavit verifying he

was Child’s father or that the last name of Child would be Paternal Name. He

indicated that an arrearage accumulated prior to the preliminary hearing, and

when asked if he knew the amount of the arrearage, he testified “[t]he better;

just over seven thousand dollars, I believe.” Transcript at 45. Father then

indicated that he understood he had to work on the reduction of the arrearage

and that he was willing to pay an additional twenty dollars per week toward the

reduction of the arrearage. [5] At the January 9, 2014 hearing, when asked why his requested name change

was in the best interest of Child, Father testified that “it is special to [him] that

[his] father’s name is in his kids[’] and grandkids[’] names” and that he did not

think Child “should be excluded from that,” that it was special to his family as

well, that he did not “want to have that conversation with [Child] when he is

older, or when he brings it up about why he doesn’t have [Father’s] last name as

a male,” and that he believed “it would help [Child] connect with his siblings

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because they do bear the last name of [Paternal Name].” Id. at 262. He

testified that he, his brother, his dad, and his grandparent all have Child’s first

name and Paternal Name and that “it is special to us to have that name within

our name, and I did not want [Child] to be excluded from that . . . .” Id. at 273-

274. The court asked “[s]o then everybody has the [Child’s first name] and the

[Paternal Name] in their name,” and Father testified “[r]ight, so that it was not

only special to me but special to other family members, and to [Child] himself.”

Id. at 274. [6] Mother testified that Child’s last name on his birth certificate is Maternal

Name, that Child had been raised with Maternal Name and had started to say

his name using his Maternal Name, and that she “had him baptized when he

was two months old as [having the Maternal Name] and the Catholic belief is

once you are baptized with a name, you cannot be re-baptized.” Id. at 277.

Mother testified that she had heard Father and his family refer to Child using

Paternal Name numerous times and that mail from Father’s family referred to

Paternal Name. When asked why she believed it was in Child’s best interest to

continue to maintain the name of Maternal Name, Mother testified that Child

had been baptized and raised with Maternal Name, that he would be starting

school in two to three years, that all his cousins know him with the name of

Maternal Name, and that her last name “and her brother’s is the only [Maternal

Name], but it is no different than any other child out there that have separated

parents.” Id. at 282. When asked if she believed that, as long as she was the

custodial parent, Child ought to bear the last name of his mother, Mother

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testified affirmatively and that “[i]t would be easier for medical purposes, and

when he gets signed up for schooling and things like that.” Id. [7] On June 25, 2014, the court entered a final order addressing Child’s last name,

parenting time, and child support. The court ordered that Mother and Father

have joint legal custody, that Father pay $177 per week for current child

support, and that Father have certain parenting time as set forth in the order.

With respect to the issue of arrearage, the court stated in Paragraph 48:

“Mother did not present evidence of Father having retro-active child support

arrears. It is the Court’s determination that Mother accepted all the gifts on

Father’s behalf to settle any retro-active child support arrears.” Appellant’s

Appendix at 27. With respect to Child’s name, the order provided:

55. The Court has carefully considered the evidence presented, and related Indiana case law and the demeanors of Mother and Father as well as their credibility. In addition, the Court has carefully considered the best interest of the child for a surname change. 56. Father was present at the hospital when the child was born. Father wanted to sign the paternity affidavit but he was unsuccessful at getting Mother’s permission. 57. Father testified that the [Paternal Name] surname has a family history. 58. The child has been baptized in the Catholic faith with the surname of [Maternal Name] at two (2) months old. 59. Father asserts it is in the best interest for the child to have his surname, because this child should not be excluded from the family heritage of the surname of [Paternal Name] that was demonstrated through the overall testimony. Father further asserted that it is special for all relatives of the [Paternal Name] family heritage to have the name [Child’s first name] and [Paternal Name]. Father does not want to have the conversation later to the child why he does not have his

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Father’s surname like other boys of his age. All relatives in Father’s family have a part of their life heritage to have the [Paternal Name] surname. 60. Father feels it is important for his son to not be confused with other kids that have their Father’s surname. 61. Father further testified that the child having his surname would help connect him with his half sibling on Father’s side. 62. The child at this time does not have any siblings on Mother’s side of the family with the surname “[Maternal Name].” The child has a younger biological sibling with Father that has the surname of [Paternal Name]. 63. Father has met his burden in the best interest of the child to carry his surname of [Paternal Name]. 64. The Court notes that the child is currently two (2) years old and almost three (3) at the time of this order. There was no evidence presented that the child could not learn his new surname of “[Paternal Name].” Notwithstanding this was not a burden for Mother to present to the Court.

Id. at 28-29. The court granted Father’s request that Child’s last name be

changed to Paternal Name.

Discussion [8] The issue is whether the trial court abused its discretion in granting Father’s

request to change the last name of Child to Paternal Name and in not entering a

child support arrearage. With respect to the court’s ruling as to Child’s name,

Mother asserts that the court relied upon improper factors in granting Father’s

name change request. She argues that family heritage is not an appropriate

factor and is irrelevant to the best interest of Child, that the assumption that

other children the age of Child will all have their fathers’ surnames is not

enumerated as one of the factors considered by this Court, and this is likely

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because the assumption does not hold true, and that the strength of a

relationship between siblings has nothing to do with whether they share the

same last name. Mother also argues that, given that Child was baptized in the

Catholic faith under the Maternal Name and cannot be re-baptized, that Child

has started saying his name using Maternal Name, and that Mother carries

health insurance on Child and the medical records are all under the name of

Maternal Name, the court erred in granting Father’s request to change Child’s

name. [9] Father maintains that the court’s findings and order are supported by evidence

that his requested name change is in the best interest of Child. He notes that he

presented evidence that the Paternal Name will connect Child to his family

heritage and half-sibling and is special to the father-son relationship, that he

asserted paternity and first sought a name change approximately one month

after Child was born, and that he has exercised parenting time, paid child

support, and has joint legal custody. Father argues that Mother asks this court

to reweigh the evidence and that he has shown that having the surname of

Paternal Name will connect Child, not only to his noncustodial parent, but to

his family heritage and half-sibling that bears the surname. [10] We review a trial court’s order granting or denying a biological father’s request

to change the name of a nonmarital child for an abuse of discretion. In re

Paternity of N.C.G., 994 N.E.2d 331, 334 (Ind. Ct. App. 2013). An abuse of

discretion occurs when the decision is clearly against the logic and effect of the

facts and circumstances before the court. Id. The trial court here entered

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findings of fact, and we may not set aside the trial court’s findings of fact unless

they are clearly erroneous. Id. Findings of fact are clearly erroneous when the

record contains no evidence to support them directly or indirectly. Id. at 334-

335. A judgment is clearly erroneous when the findings of fact do not support

the conclusions of law or the conclusions of law do not support the judgment.

Id. at 335. [11] “A child born out of wedlock shall be recorded . . . under the name of the

mother . . . .” Ind. Code § 16-37-2-13. “Nevertheless, a biological father

seeking to obtain a name change of his non-marital child bears the burden of

persuading the court that the change is in the child’s best interests. Absent

evidence of the child’s best interests, the father is not entitled to obtain a name

change.” In re Paternity of N.C.G., 994 N.E.2d at 335 (internal quotation marks,

brackets and citation omitted). [12] In In re Paternity of N.C.G., this court stated:

In what appears to be an effort to encourage a paternal connection with a father’s nonmarital and noncustodial child, recent cases have concluded that it is in the child’s best interest to give the child the father’s surname when certain indicators are present such as the father pays child support, exercises parenting time, and participates in the child’s life. See C.B. v. B.W., 985 N.E.2d 340, 348 (Ind. Ct. App. 2013) (stating that “Father’s surname will connect the child with his non- custodial parent and is a tangible reminder to the child that the child has two parents who care for him, which is in the child’s best interests”)[, trans. denied]; see also Petersen v. Burton, 871 N.E.2d 1025, 1029 (Ind. Ct. App. 2007) (opining that “the indicators that complying with Father’s request [for a name change] is in the child’s best interest are that he does pay support, has visitation and participates in the life of his child”).

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Id. We further indicated that, as observed in C.B. v. B.W., having a father’s

surname under certain circumstances may be in a child’s best interest because it

is a tangible reminder that the child has two parents and that this is particularly

true when the father is the noncustodial parent. Id. at 336 (citing C.B. v. B.W.,

985 N.E.2d 340, 348 (Ind. Ct. App. 2013), trans. denied). [13] In C.B., this court observed that, when a surname change is sought in a

paternity action, among other factors the trial court may properly consider are

whether the child holds property under a given name, whether the child is

identified by public and private entities and community members by a

particular name, the degree of confusion likely to be occasioned by a name

change, the child’s desires if the child is of sufficient maturity, the birth and

baptismal records of the child, the school records of older children, health

records, and the impact of a name change when there are siblings involved

whose names would not be changed. C.B., 985 N.E.2d at 343. We concluded

that, “like all children, a child born out of wedlock is better served when he

knows and is identified with both parents, and both parents are engaged in his

upbringing” and that “[a] child’s surname connects the child with the parent.”

Id. at 348. We held in that case that the mother would “have physical custody

of the child and, as such, the child will continue to be identified with her and

will be connected with her in countless ways, large and small, on a daily basis”

and that the father’s “surname will connect the child with his non-custodial

parent and is a tangible reminder to the child that the child has two parents who

care for him, which is in the child’s best interests.” Id.

Court of Appeals of Indiana | Memorandum Decision 49A05-1407-JP-345 | May 18, 2015 Page 9 of 14 [14] The record reveals that, while Child was baptized as having the last name of

Maternal Name at two months of age, Father filed his petition seeking to

establish paternity approximately one month after the birth of Child and asked

the court to award him reasonable parenting time and order him to pay Mother

a reasonable amount of child support, and the court subsequently granted

Father visitation and ordered him to pay support in its September 2012

preliminary order. Father testified that Child’s first name and Paternal Name

were a part of his own name as well as the names of his brother, his father, and

his grandparent. The court also noted that Child at this time does not have any

siblings on Mother’s side of the family with the Maternal Name and that the

Child has a younger biological sibling with Father who has Paternal Name. In

addition, Father shares joint legal custody of Child, and Mother has primary

physical custody. [15] In the exercise of its discretion, the trial court considered the totality of the

circumstances in determining what was in Child’s long-term best interest.

Based upon the factors discussed above and upon the evidence in the record, we

cannot say the trial court’s decision is clearly against the logic and effect of the

facts and circumstances before it. Accordingly, the court did not abuse its

discretion in granting Father’s request for a name change for Child. See In re

Paternity of N.C.G., 994 N.E.2d at 334-336 (noting that the father explained that

he had been trying to effect a name change almost since the child’s birth and

that the trial court had found that the father had been paying child support and

exercised regular parenting time, and holding that the father’s petition to

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change his child’s surname should have been granted); C.B., 985 N.E.2d at 347-

348 (observing that the father filed a petition to establish paternity, paid

support, exercised visitation, participated in the life of the child, and shared

joint legal custody of the child, all of which evidenced that his request to change

the child’s name was in the child’s best interest, and concluding that the father’s

surname would connect the child with his non-custodial parent, which is in the

child’s best interests).2 [16] With respect to the issue of a child support arrearage, Mother asserts that the

court incorrectly concluded that Father was not obligated to pay a support

arrearage. She argues that she did not present any additional evidence of

Father having a child support arrearage because Father admitted during his

testimony at the first evidentiary hearing that he owed just over seven thousand

dollars in child support arrearage and that, moreover, there was no evidence

presented regarding any gifts that she accepted on Father’s behalf in lieu of

child support. Father argues that, because Mother failed to present evidence to

2 In support of her position, Mother cites In re Paternity of M.O.B., 627 N.E.2d 1317 (Ind. Ct. App. 1994). In that case, the father testified that his surname “was an honorable name that he would ‘truly like’ to have carried on,” and the court ordered that the child assume the father’s surname. 627 N.E.2d at 1318-1319. On appeal, we noted the evidence presented by the mother regarding the child’s name and, with respect to the father’s reason for a name change, found that “[e]ssentially, [the f]ather presented evidence that it was in his ([the f]ather’s) best interests that [the child] assume the [father’s] surname,” but that the father “failed to present any evidence that the name change was in the best interests of [the child].” Id. at 1319. In this case, Father presented evidence, in addition to his testimony regarding his own wish, that it would be in Child’s best interest for his last name to be Paternal Name, and we find M.O.B. to be distinguishable. See In re Paternity of N.C.G., 994 N.E.2d at 336 (noting that the father testified that giving the child his surname would cement the parental bond between himself as the noncustodial parent and the child, that this was unlike the father in M.O.B., and that “[t]he distinction is that the latter has nothing to do with the child’s best interest, but rather, concerns only the father’s interest”).

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the trial court concerning a support arrearage or to develop any argument to

this Court, she waived her claim. Specifically, he argues that Mother concedes

that she did not present any evidence of Father having a child support

arrearage, that his statement at the hearing that he owed support was elicited by

Father’s trial counsel and was presented in the context of explaining how he

reached his proposed child support payment, that at none of the hearings did

Mother assert that an arrearage was actually owed, and that there is no

evidence in the record supporting that Father owed or owes an arrearage apart

from Father’s statement. [17] The court found in its order that “Mother did not present evidence of Father

having retro-active child support arrears” and that “[i]t is the Court’s

determination that Mother accepted all the gifts on Father’s behalf to settle any

retro-active child support arrears.” Appellant’s Appendix at 27. The record

reveals that, at the March 14, 2013 hearing, Father’s counsel called Father as a

witness and presented evidence of the weekly gross income of Father and

Mother for the purpose of calculating Father’s weekly child support obligation.

Father testified as to his regular employment earnings, his part-time earnings,

and Mother’s employment earnings, and he presented a child support

obligation worksheet. After Father’s worksheet was admitted into evidence, he

indicated in response to his counsel’s questions that an arrearage accumulated

prior to the preliminary hearing. When asked by his counsel if he knew the

amount of the arrearage, Father testified: “The better; just over seven thousand

dollars, I believe.” Transcript at 45. Father then indicated that he understood

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he had to work on the reduction of the arrearage. When asked, “[o]n top of

what you are suggesting as being an appropriate child support amount of one

hundred and sixty seven, are you willing to pay an additional twenty dollars per

week toward the; that would go towards the reduction of that arrearage,”

Father answered “Yes.” Id. [18] Mother does not point to the record to show evidence of an order to pay child

support that existed prior to the court’s Preliminary Agreed Order of August 15,

2012 Hearing. Additionally, the August 15, 2012 order makes no reference to a

child support arrearage having accumulated as of that date. Further, Mother

does not point to the record to show that she presented any evidence of Father

having a child support arrearage or the amount of any such arrearage, and in

fact she acknowledges on appeal that she did not present any such evidence.

Moreover, she did not request the court to make a determination of the amount

of any arrearage. See Ind. Code § 31-16-12-3 (providing that the court, upon

request of a person or an agency, may issue an order that contains a

determination of the amount of child support arrearage due). We cannot say

the court erred in finding that Mother did not present evidence of Father having

a child support arrearage, and in therefore finding no arrearage.

Conclusion [19] For the foregoing reasons, we affirm the court’s June 25, 2014 final order. [20] Affirmed.

Court of Appeals of Indiana | Memorandum Decision 49A05-1407-JP-345 | May 18, 2015 Page 13 of 14 Crone, J., and Pyle, J., concur. Court of Appeals of Indiana | Memorandum Decision 49A05-1407-JP-345 | May 18, 2015 Page 14 of 14