MICHAL COHEN, Plaintiff and Respondent,
v.
BURL WANE SMITH, Defendant and Appellant.
H034784
California Court of Appeal, Sixth District
April 27, 2010
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 6-08-CP-000055
Duffy, J.
Michal Cohen (Mother) petitioned the court for an order changing the surname of her minor child, Aden, who, at the time was nearly three. She sought a change of Aden’s name from “Aden Zur Smith” to “Aden Zur Cohen-Smith.” Aden’s father, appellant Burl Wane Smith (Father), opposed the petition. The court found that the proposed name change was in Aden’s best interests and granted the petition.
Father has appealed, claiming that there was no substantial evidence to support the court’s name change order. We disagree and will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Mother filed the name change petition on May 13, 2009. In her declaration accompanying the petition, she stated that she and Father commenced a relationship while he was separated from his then-wife. Mother became pregnant before Father was divorced; after giving birth to Aden in June 2006 and while she was still in the hospital, Mother agreed to use Father’s surname on Aden’s birth certificate. She stated that she did so at Father’s request and based upon her assumption that the couple would continue their relationship and eventually marry. The parties’ relationship thereafter deteriorated and Mother and Father separated when Aden was one. Father has since remarried. The parties maintain joint legal and physical custody of Aden.
Father disputed this factual assertion in his opposition to the petition. He stated that he “had no legal or physical discretion in the naming of Aden....” Father claimed that it was Mother’s decision to use “Smith, ” rather than “Cohen, ” as Aden’s surname because she was estranged from her father. He also claimed that Mother had no intention of marrying him at the time Aden was born, since she had previously returned the engagement ring he had given her. In a reply declaration, Mother responded that Father and she had mutually decided on the name for Aden and had both signed the birth certificate; she was not estranged from her father, and it was Father, not she, who wanted Aden to bear Father’s surname; and when Aden was born, she and Father were engaged, and it was only a year later when they separated that she returned the engagement ring to him.
Mother declared that it was her belief that changing Aden’s surname to “Cohen-Smith” was in the child’s best interests to “reflect[] his relationship to both of his parents and identification with his heritage.” She stated that she is an Israeli and is Jewish, and that Father is American and Christian. Cohen was also the surname of her father’s extended family, most of whom were the victims of Nazi genocide during World War II. Mother stated that it was her belief that “it is important for Aden to be able to identify with both the paternal and maternal sides of his family.” She also declared that she was hopeful that the proposed name change to include her surname would have a tendency to lessen delays at airports that had occurred in the past during her frequent international travels with Aden. Finally, Mother cited changed circumstances-the dissolution of the relationship after she had anticipated that they would marry-as a reason for the name change.
Father opposed the petition, indicating that while he objected to the proposed name change, he had no opposition to the child’s name being changed to “Aden Zur Cohen Smith.” He argued that Mother had not sought to change their child’s name in prior court proceedings, and that her petition “was simply a whimsical request... after all other issues had been resolved....” Father contended further that the proposed hyphenated surname would “strip[] any cultural significance to his last name... [while] allowing ‘Cohen Smith’ [would] allow the child to keep cultural significance of both names.” He also indicated that Aden had three brothers and one sister and stated a belief that the proposed name change would make it less likely that those siblings would accept Aden as a member of the family and would increase the likelihood that he would be ridiculed by them. He complained that Mother had already used “Cohen-Smith” as the child’s surname despite the absence of a court order allowing it. Finally, Father asked the court to consider his constitutional right to equal protection under the Fourteenth Amendment of the United States Constitution, claiming that granting the petition over his objection, after he had not “to this point... been given [any] consideration in naming [Aden]” would constitute a violation of that right.
Mother responded that she had used the hyphenated surname on a form registering Aden for music class “in order to eliminate any confusion over [her] relationship to Aden....”
After a hearing, the court granted Mother’s petition, making an oral finding that the proposed name change was in the child’s best interests. A formal order was entered on July 29, 2009. Father filed a timely notice of appeal on September 23, 2009.
At the conclusion of his opening brief, Father states that he “would have liked to raise these issues [concerning whether the name change was in Aden’s best interests] at trial but no oral arguments were allowed.” After having reviewed the hearing transcript, we summarily reject Father’s contention that he was not permitted argument below. The court solicited argument from both Mother’s counsel and Father, and Father declined further argument beyond the papers he had previously submitted.
DISCUSSION
I. Standard of Review
In In re Marriage of Schiffman (1980) 28 Cal.3d 640 (Schiffman), our high court considered and rejected the traditional common law rule that a child should bear the father’s surname, based upon outdated theories that the father has a “ ‘primary right’ or ‘protectable interest’ in having the minor child bear his surname even after the mother is awarded custody.” (Id. at p. 642.) The court concluded that the rule should be abolished, and that “[h]enceforth, as in parental custody disputes, the sole consideration when parents contest a surname should be the child’s best interest.” (Id. at p. 647.)
The Schiffman court noted that under this test, “the length of time that the child has used a surname is to be considered. [Citation.] If... the time is negligible because the child is very young, other facts may be controlling. For instance, the effect of a name change on preservation of the father-child relationship, the strength of the mother-child relationship, and the identification of the child as part of a family unit are all pertinent. The symbolic role that a surname other than the natural father’s may play in easing relations with a new family should be balanced against the importance of maintaining the biological father-child relationship. ‘[T]he embarrassment or discomfort that a child may experience when he [or she] bears a surname different from the rest of his [or her] family’ should be evaluated. [Citation.]” (Schiffman, supra, 28 Cal.3d at p. 647.) The high court observed further that “[i]n recognizing a father’s right to have his child bear his surname, courts largely have ignored the impact a name may have on the mother-child relationship. Perhaps that is because mothers, usually given custodial preference in the past, generally had more regular contact and could maintain a psychological relationship without the need for the tie a surname provides. However, ‘the maternal surname might play a significant role in supporting the mother-child relationship, for example, in the cases where the father is the custodial parent or where the custodial mother goes by her birth-given surname.’ [Citation.]” (Ibid, original italics.)
The question of whether a name change is in the child’s best interests is a question of fact. (In re Marriage of Douglass (1988) 205 Cal.App.3d 1046, 1053-1054.) The court’s conclusion will be sustained it is supported by substantial evidence in the record. (Id. at p. 1055; In re Marriage of McManamy & Templeton (1993) 14 Cal.App.4th 607, 611 (McManamy & Templeton).)
The substantial evidence standard has been described by our high court as follows: “ ‘In reviewing the evidence on... appeal all conflicts must be resolved in favor of the [prevailing party], and all legitimate and reasonable inferences indulged in to uphold the [finding] if possible. It is an elementary, but often overlooked principle of law, that when a [finding] is attacked as being unsupported, the power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the [finding]. When two or more inferences can be reasonably deduced from the facts, the reviewing court is without power to substitute its deductions for those of the trial court.’ [Citation.]” (Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 571, quoting Crawford v. Southern Pac. Co. (1935) 3 Cal.2d 427, 429.) Although the record must be reviewed in its entirety, “all of the evidence must be examined, but it is not weighed. All of the evidence most favorable to the respondent must be accepted as true, and that unfavorable discarded as not having sufficient verity, to be accepted by the trier of fact. If the evidence so viewed is sufficient as a matter of law, the judgment must be affirmed.” (In re Teel’s Estate (1944) 25 Cal.2d 520, 527.) It is the appellant’s burden to establish that the judgment or order is not supported by substantial evidence. (In re Adoption of Allison C. (2008) 164 Cal.App.4th 1004, 1011.)
II. Propriety of Order Granting Name Change Petition
The primary reason cited by Mother in her name change petition to include a hyphenated blend of both parents’ surnames as Aden’s surname was the recognition of his diverse national origin and religious heritage. Mother believed that the proposed name change was necessary in order for the child to identify with both sides of his family. Indeed, Father seemingly acknowledged the importance of Aden having an awareness of his religious and cultural diversity, by observing in his opposition that use of the nonhyphenated “Cohen Smith” would “allow the child to keep cultural significance of both names.” In granting Mother’s petition, the court observed that “both parties recognize the importance of the cultural nature of this young man and his heritage of both father and from mother.” Additionally, in granting the petition, we may infer that the court gave consideration to the fact that use of “ ‘the maternal surname might play a significant role in supporting the mother-child relationship, for example, in the cases... where the custodial mother goes by her birth-given surname.’ [Citation.]” (Schiffman, supra, 28 Cal.3d at p. 647, original italics.)
Further, the court considered and rejected Father’s claim that the child’s use of a hyphenated name would increase the likelihood of his being rejected or ridiculed by his half-siblings: “... I’m certain that these children are going to accept their... brother irrespective of the hyphen in the name.” The court went further: “And I think in actuality it could be an interesting benefit to all of the children and certainly a teaching and talking point regarding respecting the diversities of cultures and I don’t see that it is going to harm Aden to allow that.”
On appeal, Father emphasizes that Aden was three at the time of the hearing and suggests that because Mother had waited “too long” to seek the name change, the petition should have been denied. He cites McManamy & Templeton, supra, 14 Cal.App.4th 607, in support of his position. We disagree with Father’s contention and find the case he cites distinguishable.
On this subject, we observe that there was conflicting evidence as to whether the name given Aden at his birth came about because of Father’s request and Mother’s belief that the couple would eventually marry. (See fn. 1, ante.) There was substantial evidence supporting Mother’s position, and it is of no consequence that there was conflicting evidence from Father that the court could have chosen to-but did not-rely upon. (See Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874.)
In McManamy & Templeton, supra, 14 Cal.App.4th at page 609, the trial court presiding over the parties’ marital dissolution granted the father’s request to change their daughter’s surname to include his surname hyphenated with the mother’s. At the time of the hearing, the child was three and had already started school. (Id. at p. 610.) The father’s principal argument in support of the name change was that he objected to his child’s surname being “Templeton” because that was the surname of the mother’s prior husband and was thus “ ‘the name of a total stranger’ ” to the child. (Ibid.) The appellate court found this purported justification insufficient and observed that the “[f]ather [in his declaration] provided no meaningful link between the proposed name change and his relationship with his daughter; instead he simply voiced his unhappiness with the mother’s choice of surname for the child.” (Id. at p. 611.) In addition, the court expressed concern, based upon the trial court’s order, “that yet a third surname could become necessary if [the child] found the hyphenated surname unwieldy. It can hardly be considered in the child’s best interest to have her surname changed repeatedly, unless strong benefit resulted from the change.” (Ibid.) The appellate court therefore concluded that the “record [was] devoid of any substantial evidence that it would be in the child’s best interest to have her surname changed from Templeton to McManamy-Templeton.” (Ibid.)
McManamy & Templeton is readily distinguishable. There, the applicant-father’s basis for the name change was little more than his displeasure that the child’s surname was not the mother’s birth name. Here, as we have discussed, Mother presented significant reasons-including changed circumstances, providing Aden with a better appreciation of the diversity of his heritage, and giving him a better link to both sides of his family-to support the proposed name change. Further, here, unlike in McManamy & Templeton, there was no suggestion that Aden would be subjected to further name changes, due to the unwieldiness of the proposed name or otherwise. And while we acknowledge that the length of time that the child has used the original surname is a factor in considering whether the proposed name change is in his or her best interests (Schiffman, supra, 28 Cal.3d at p. 647), we do not view the fact that Aden has used Father’s surname for three years-particularly in the absence of any showing of prejudice to the child-precludes a finding that a name change is in his best interests.
We conclude that there was substantial evidence in support of the court’s finding that the name change proposed by Mother in her petition was in Aden’s best interests. Therefore, the court did not err in granting the petition.
DISPOSITION
The order granting the petition to change the minor child’s name to “Aden Zur Cohen-Smith” and to change the minor’s birth certificate to reflect that name change is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P.J., Mihara, J.