Opinion
23-P-676
07-12-2024
RICARDO R. POLLO v. JAMIE PETERS.
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Ricardo Pollo (father), who is the father of the subject child, filed a "Petition to Change Name of Minor" (petition) in the Probate and Family Court pursuant to G. L. c. 210, § 12. Following a trial, a Probate and Family Court judge entered a Decree and Memorandum of Decision (decree) allowing the petition. Jamie Peters (mother), who is the mother of the subject child, appeals from the decree, arguing that the evidence at trial was insufficient to support the conclusion that the name change was in the best interests of the child. We affirm.
Background.
We summarize the findings of fact from the judge's posttrial decree. The parties are the parents of the subject child, who was three years old at the time of trial. The parties met in 2018, began a romantic relationship, but never married and never lived together. Prior to the child's birth, the father "raised the issue of wanting [the child] to bear both of [the parents'] last names." The mother chose the child's first name, and the father chose the child's first middle name. The parties "nominally agreed to have the [child] have [the father's] last name as her second middle name." The mother "was clear in her desire to have [the child] bear her last name only." The father, by contrast, wanted the child to bear his last name. The father's family is from Cuba, and he wanted the child to bear both parents' last names to "recognize her dual heritage." However, the mother "put him off by indicating that the issue could be revisited if they got married." The father acquiesced to the mother's desire to have her last name as the child's sole last name "so as to not add to [the mother's] stress, anxiety and increased blood pressure while pregnant."
The mother does not contend on appeal that any of the judge's findings of fact are clearly erroneous.
The parties share legal and physical custody of the child. Shortly after the child was born, the father filed a motion pursuant to G. L. c. 209C, to change the child's name. The judge denied that motion.
The judge who denied the motion filed under G. L. c. 209C was the same judge who presided over the trial. The judge noted in the decree that she did "not find it relevant to this pending action that the [c. 209C] motion was denied."
The father subsequently filed the petition, and the mother filed an affidavit of objection. Following a one-day trial during which both parties testified, the parties submitted proposed findings and proposed judgments. The judge subsequently issued the decree wherein she concluded, inter alia, that changing the child's name "will preserve and advance the development of [the child's] relationship with both parents and all of her siblings, which have their parents' respective last names"; that the name change "will support [the child's] best interest as having both of the parties' last names will recognize her dual heritage"; that "[t]here is no issue of embarrassment for [the child] to have both of her parents' last names"; that although the child knew all four of her names, she was only able to write her first name; that the name change "will simply require hyphenating [the child's] current second middle name . . . with her current last name"; that "it is in [the child's] best interests to bear the last names of both of her parents"; and that the father "satisfied his burden to establish that a name change is in the best interests of the minor child."
The mother filed a notice of appeal on December 15, 2022, after which she filed a motion to stay pending appeal, which the father opposed. Subsequently, the mother filed a supplemental motion to stay, which was allowed on February 3, 2023. On April 21, 2023, the mother filed a second notice of appeal from the decree only.
Discussion.
Pursuant to G. L. c. 210, § 12, a person may file a name change petition, and typically, the petition "shall be granted unless such a change is inconsistent with public interests." Id. "However, where the petition concerns the surname of a child, whether born to married or unmarried parents, the best interests of the child standard is applicable" (quotations omitted). Gomes v. Candido, 99 Mass.App.Ct. 825, 829 (2021). The petitioner bears the burden of demonstrating that the name change is in the child's best interests. Id., citing Jones v. Roe, 33 Mass.App.Ct. 660, 664 (1992).
"[I]n considering the child's best interests, some factors to be considered 'include the effect of the change of the child's surname on the preservation and development of the child's relationship with each parent and other siblings; the length of time the child has utilized a given name; the age of the child as it may relate to his or her identification with the surname; and the difficulties and embarrassment that the child may experience from bearing the present or proposed surname.'" Gomes, 99 Mass.App.Ct. at 829, quoting Jones, 33 Mass.App.Ct. at 664. This list is not exhaustive, and other factors may be considered, including "the allocation of custodial responsibility." Id., quoting Cormier v. Quist, 77 Mass.App.Ct. 914, 916 (2010).
In the present case, the mother argues that the evidence did not support the judge's ultimate conclusion in view of the parties' prebirth agreement to give the child two middle names, the effect of the name change on the child's relationship with her siblings and family members, the father's underlying motivation, and other consequences. The claim is unavailing for many reasons.
First, the judge's memorandum of decision, trial transcript, and the entire record on appeal demonstrate that the judge understood and applied the correct legal standards delineated above. Furthermore, the judge was cognizant of our holding and rationale in Gomes, supra, wherein we reversed a judge's decree ordering a name change of two minor children. See Gomes, 99 Mass.App.Ct. at 831-832 (judge erred by limiting analysis to whether name change would cause twin children harm, applying presumption in favor of name change, and failing to consider whether name change affirmatively would be in children's best interests). Unlike Gomes, the judge here properly allocated the burden of proof to the petitioner father, considered all relevant factors, and made findings of fact supported by the record.
There is a measure of persuasiveness to the mother's claim that the father's initial reason for the name change stemmed from the denial of the father's request for access to the child's medical records. Indeed, the father stated as much in his prior motion brought under c. 209C. That notwithstanding, the judge addressed this issue in her memorandum of decision, finding that the father's desire for the name change stemmed from myriad appropriate factors including his desire for the child to recognize her dual heritage, and to advance and preserve the development of the child's relationship with both parents and all her siblings. The record supports this determination, and the judge was free to reject other claims regarding the father's motivation. In this regard, we reiterate that the trial judge in this case was also the judge who heard and ruled on the father's c. 209C motion.
In sum, the decision to allow a request to change the name of a child is not to be taken lightly and requires a careful analysis under the requirements discussed herein. In the present case, the judge followed precedent and made clear findings supported by the evidence at trial and the record on appeal. Therefore, the decree is affirmed.
We deny the father's request for appellate fees.
Decree entered December 15, 2022, affirmed.
The panelists are listed in order of seniority.