In re Oregon

Filed 4/10/07 In re Oregon CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Erik Michael Kaiser, Affirmed.

Law Offices of James E. Newnham and James E. Newnham for Objector and Appellant.

Law Office of Kerri Lynn Anderson and Kerri Lynn Anderson for Petitioner and Respondent.

Introduction

Deana Marie Arellano (mother) filed an order to show cause to change her daughters surname from her maiden name, Oregon, to her married name, Arellano. Lee Raymundo (father) objected and requested a hyphenated surname. The trial court granted mothers request. Father appeals and raises the following claims: there was insufficient evidence to support the trial courts findings; the court failed to provide a full hearing and make the appropriate finding; and the court erred in making a ruling in the absence of fathers attorney. Father also argues that the court erred in denying his motion to vacate the order.

We conclude that the court held an adequate hearing, considered fathers previously lodged objection, afforded father ample time to seek alternative relief, and arrived at its conclusion based on substantial evidence. The court properly granted mothers request and denied fathers motion to vacate the order. We affirm.

Facts and Procedural History

Ryan Marie Oregon was born out of wedlock in May 1993. When she was about four years old, her natural parents separated and both later married their current spouses and had other children. After their separation, mother and father shared joint legal and physical custody of Ryan with mother having primary custody. Father cared for Ryan on three weekends out of every month and during half of the holidays and vacations.

On January 4, 2005, mother filed an order to show cause for change of name in the civil division of the Riverside County Superior Court. She requested that her daughters name be changed from her maiden name, Oregon, to her married name, Arellano.

Father responded and objected to the name change. He requested a hyphenated surname, either Oregon-Raymundo or Raymundo-Oregon. Father explained that he opposed the name change because he believed that the change would diminish his role in Ryans life. Father offered to file a separate request.

The trial court held a hearing on March 4, 2005. During the hearing, the court asked 11-year-old Ryan for her preference and she stated that she objected to the name change. Based on fathers offer, the court gave fathers attorney time to file a separate request in either the family court or the civil division of the superior court, whichever was appropriate. Because of fathers objection, the court postponed ruling on mothers request.

The trial court held another hearing on September 20, 2005. Although fathers attorneys office contacted the court and informed it that counsel would not be able to attend the hearing because of illness, the record does not reflect any reason for his absence. Only mother and Ryan were present during the hearing. The court again asked Ryan for her preference and, this time, she stated that she wanted the name change. Ryan had gone by the name Arellano for about four years. After considering the parties written submissions, the court granted mothers request and ordered that Ryans name be changed to Ryan Marie Arellano.

On October 14, 2005, father filed a motion to vacate the judgment under Code of Civil Procedure section 473. In his declaration, fathers attorney explained his absence at the prior hearing.

At the hearing on fathers motion on November 15, 2005, fathers attorney informed the court that he had filed a request for a hyphenated surname in family court, where father had an existing paternity action. Mothers attorney responded that the court had given father six months to file his request, but father failed to do so within that time. His request was made on September 26, 2005, six days after the courts order granting mothers request. After taking the matter under submission, the court later denied fathers motion. In ruling on the motion, the court noted that Ryan went by the name Arellano and had never used her fathers surname. The court found that it was in Ryans best interest to affirm the prior order changing her name to Ryan Marie Arellano.

Discussion

Father claims the trial court abused its discretion in granting mothers order to show cause for the name change and denying his motion to vacate the order. Although father does not address them separately, his specific arguments are: the courts finding and order was not supported by the evidence; the court failed to provide a full hearing and make the appropriate findings; and the court should not have granted the name change in the absence of his attorney and while another action on the same matter was pending in family court.

1. Order to Show Cause

We begin our discussion with fathers contentions concerning the courts decision granting mothers order to show cause. We briefly will discuss fathers procedural arguments, but focus primarily on fathers argument that the name change was not in Ryans best interest.

A request for a name change can be made either as a separate petition submitted to the civil division of the superior court or as a petition in an action to establish paternity in family court. (See Code Civ. Proc., 1276, subd. (a); Fam. Code, 7638.) Mother filed her petition in superior court under the common law procedure set forth in Code of Civil Procedure section 1276 et seq.

Code of Civil Procedure section 1278 provides, in relevant part: the petition or application shall be heard at the time designated by the court, only if objections are filed by any person who can, in those objections, show to the court good reason against the change of name. At the hearing, the court may examine on oath any of the petitioners, remonstrants, or other persons, touching the petition or application, and may make an order changing the name, or dismissing the petition or application, as to the court may seem right and proper.

One court observed that, with the adoption of the California Uniform Parentage Act (Fam. Code, 7600 et seq., formerly Civ. Code, 7000 et seq.) in 1976, all parents have equal standing in regards to their children irrespective of their sex or marital status. (Donald J. v. Evna M. (1978) 81 Cal.App.3d 929, 937.) Neither parent has a superior right to have his or her child bear that parents surname. (Ibid.) The controlling consideration in determining whether a change in a childs surname should be ordered against the objection of one of the parents, is the welfare of the child. [Citation.] (Ibid.)

The California Supreme Court agreed that the sole consideration is the best interest of the child. (In re Marriage of Schiffman (1980) 28 Cal.3d 640, 647.) In determining the childs best interest, the court set forth some of the relevant factors: the length of time the child has used a particular surname; the strength of the parent-child relationships; the effect of the name change on the parent-child relationships; and the childs identity as part of the family unit and, particularly, any embarrassment or discomfort the child may experience if she or he had a different surname than the rest of the family. (See Schiffman, supra, at p. 647; In re Marriage of McManamy & Templeton (1993) 14 Cal.App.4th 607, 610.) The symbolic role that a surname other than the natural fathers may play in easing relations with a new family should be balanced against the importance of maintaining the biological father-child relationship. (Schiffman, supra, at p. 647.) Although this test was established and applied in a family court proceeding, there is no reason to apply a different standard when a petition is filed in the superior court pursuant to Code of Civil Procedure section 1276 et seq. (See Schiffman, supra, at p. 646, fn. 1.)

In 1996, the California Legislature codified this standard by adding Code of Civil Procedure section 1278.5. The statute reads: In any proceeding pursuant to this title in which a petition has been filed to change the name of a minor, and both parents, if living, do not join in consent, the court may deny the petition in whole or in part if it finds that any portion of the proposed name change is not in the best interest of the child. (Code Civ. Proc., 1278.5.)

A trial courts decision to grant or deny a petition under Code of Civil Procedure sections 1278 and 1278.5 is discretionary and, therefore, must be upheld unless the party seeking to reverse the decision shows abuse of discretion. (See Code Civ. Proc., 1278, subd. (a), 1278.5; In re Ritchie (1984) 159 Cal.App.3d 1070, 1072-1073.) The courts factual findings in support of its decision also must be reviewed deferentially by applying the substantial evidence test. (In re Marriage of McManamy & Templeton, supra, 14 Cal.App.4th at p. 610.)

We further note that, in response to fathers procedural argument, although the court must hold a hearing if one of the parents objects to the name change, the law does not require that the court state its factual findings on the record. (Code Civ. Proc., 632; Chaffin v. Frye (1975) 45 Cal.App.3d 39, 44; also compare Code Civ. Proc., 1278.5 with Fam. Code, 4056, subd. (a)(3).) Where the record is silent, trial courts generally are presumed to have known the law and made all findings necessary for the judgment. (See People v. Mosley (1997) 53 Cal.App.4th 489, 496, citing In re Marriage of Flaherty (1982) 31 Cal.3d 637, 645; In re Marriage of Laube (1988) 204 Cal.App.3d 1222, 1226.) Although the better practice would be to state the finding on the record, this was beyond what the law requires. (See In re Susan M. (1975) 53 Cal.App.3d 300, 315.) We will presume that the trial court impliedly found that the name change was in Ryans best interest.

The record in this case shows that the trial court held two hearings. During the first hearing on March 4, 2005, the court considered testimony from father and Ryan. The court then heard argument, but postponed ruling on the matter. The March 4, 2005, hearing alone was adequate to satisfy the requirement under Code of Civil Procedure section 1278. At the second hearing on September 20, 2005, the court again asked for Ryans preference and considered her testimony. The court also considered mothers petition and fathers objection. The court concluded the hearing with the following comments and order: Objections for the proposed change of name were made by the natural parent, Lee Raymundo, who does not appear to be here at this time. [] The Court has gone over [the] paperwork, and after considering all the papers and all the objections, the Court orders the name of Ryan Marie Oregon is changed to Ryan Marie Arellano. . . .

Contrary to fathers substantive argument, there was sufficient evidence to support the courts implied finding that the name change was in Ryans best interest. By the time of the September hearing, Ryan had changed her mind and now wanted to have Arellano as her surname. She also testified that she had gone by that name for the last three to four years. Ryan spent most of her time with her mother, stepfather, and stepbrother and would share the name Arellano with this family.

Although father objected to the name change, Ryan has never used fathers surname, Raymundo. Ryan was 12 years old at the time of the hearing. She previously used her mothers maiden name, Oregon. Despite the fact that Ryan and father never shared the same last name, they were able to maintain a strong father-daughter relationship. Father shares custody of Ryan with three weekends every month and even time during the holidays and vacations. Under these facts, the court reasonably could have found that, while the name change would have little or no impact on Ryans relationship with her father, it was in Ryans best interest to share the same name with mothers new family.

Although father may be displeased with his daughter bearing mothers new married name, the sole consideration is the childs best interest, not the parents preferences. In the case, In re Marriage of McManamy & Templeton, supra, 14 Cal.App.4th 607, the father sought to change his daughters name from Kate McManamy Templeton, with his surname as her middle name, to the hyphenated name, Kate McManamy-Templeton. The family court granted the request, but the appellate court reversed. The appellate court explained: We find no authority giving mothers surname less importance because it was the surname of her former husband rather than her birth-given surname. It was in fact mothers name at the time of her marriage to father, and at the time of the minors birth; it is in effect mothers maiden name within the context of this second marriage. Thus fathers complaint that the surname Templeton was the name of a total stranger to Kate is without force. Templeton is the surname of Kates mother and of Kates brother, with whom Kate lives for a substantial portion of each year. Father provided no meaningful link between the proposed name change and his relationship with his daughter; instead he simply voiced his unhappiness with the mothers choice of surname for the child. (In re Marriage of McManamy & Templeton, supra, 14 Cal.App.4th at p. 611.)

In addressing the fathers complaint that the change would affect the father-daughter relationship, the court went on to say: Father expressed concern that Kate not be confused about her heritage or the role he plays in her life. We note that Kate does bear fathers name as part of her own, albeit as a middle name rather than a surname. More importantly, Kates understanding of her fathers role in her life will not be based solely on her surname, but will develop in light of his conduct and attitudes, particularly his active involvement in her life. [Citation.] (In re Marriage of McManamy & Templeton, supra, 14 Cal.App.4th at p. 611.)

Similarly, in this case, fathers role in Ryans life will not be based on her surname, but on his continued active involvement in her life. This is particularly true because their identity as father and daughter has been maintained for over 12 years and never depended upon sharing the same name.

As to fathers request for a hyphenated name, the trial court reasonably could have found this alternative inappropriate where father did not request the change while he was living with mother or following their separation, but only after mother made her request to have Ryan share her new married name. Also, where there is an objection to a hyphenated name, the court may consider whether the name itself would be too burdensome upon the child for common use. (In re Marriage of Douglass (1988) 205 Cal.App.3d 1046, 1056; In re Marriage of McManamy & Templeton, supra, 14 Cal.App.4th at p. 609.)

In any event, the question in this case was whether the trial court abused its discretion in granting mothers petition to change Ryans name from Oregon to Arellano. Because substantial evidence supported the trial courts implied finding that the change was in Ryans best interest, we find no abuse of discretion.

2. Motion to Vacate the Order

Father alternatively argues that the trial court erred in denying his motion to vacate its order granting mothers petition.

California Code of Civil Procedure section 473, subdivision (b), authorizes the trial court to relieve a party from a judgment or order taken against him through his mistake, inadvertence, surprise, or excusable neglect. A courts order denying a motion to vacate the order is reviewed for an abuse of discretion. A motion to vacate a default and set aside a judgment [citation] is addressed to the sound discretion of the trial court, and in the absence of a clear showing of abuse . . . the exercise of that discretion will not be disturbed on appeal. [Citations.] The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. [Citation.] (Anastos v. Lee (2004) 118 Cal.App.4th 1314, 1318-1319.)

In this case, the record shows that the trial court held two hearings separated by about six months. The court postponed ruling on mothers petition during the first hearing on March 4, 2005, because father requested an opportunity to file his own petition for a different name change. As stated above, father wanted Ryan to have a hyphenated name with his surname and mothers maiden name. In order to accommodate fathers request, the court rescheduled the hearing.

Although fathers attorney reported that he was unable to attend the September 20, 2005, hearing because of illness, the court found no reason to disturb its prior ruling. In addition to fathers attorneys affidavit, father submitted the declaration of his attorneys secretary, Diane Forsythe. Forsythe explained that, on the morning of the hearing, after receiving a call from fathers attorney that he was sick with the stomach flu, she contacted the court clerk and informed the clerk that he was unable to attend the hearing. The court, however, had no record of the call or of any excuse for fathers attorneys absence. The record states only that notice was given as required by law, but neither father nor his attorney was present during the hearing.

Moreover, the record shows that the court did not enter a default judgment, but granted mothers petition over fathers objection. (See Vandermoon v. Sanwong (2006) 142 Cal.App.4th 315, 321; see also Ambrose v. Michelin North America, Inc. (2005) 134 Cal.App.4th 1350, 1355.) During the hearing, the court specifically stated that it considered fathers objection in making its decision to grant the requested name change. Because the court provided adequate notice for the hearing and considered fathers objection, it did not abuse its discretion in denying fathers motion to vacate based on the lack of fathers presence at the September 20, 2005, hearing.

Additionally, the primary reason for the second hearing was to afford father an opportunity to pursue the matter in family court. As noted by the court, father was given six months to file a petition in family court, but father did nothing. During the hearing on fathers motion, his attorney informed the court that he had filed a petition in family court. Mothers attorney clarified, however, that father filed his petition on September 26, 2005, six days after the last hearing. The family court petition, therefore, was not pending at the time of the courts ruling on mothers petition. (See Glade v. Glade (1995) 38 Cal.App.4th 1441, 1449 [stating the general rule that one department of the superior court cannot interfere with the exercise of another].) Father provided no adequate reason for the delay.

Based on this record, we conclude that the trial court did not abuse its discretion in denying fathers motion to vacate the order.

Disposition

We affirm the trial courts order. Mother may recover her costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

s/Ramirez

P.J.

We concur:

s/Hollenhorst

J.

s/King

J.

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