· Web view1 of 80 DOCUMENTS. American Jurisprudence, Second Edition . Copyright © 2008 West Group. Eric C. Surette, J.D. Name. 57 Am Jur 2d Name Summary. Name Summary. Scope: This

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1 of 80 DOCUMENTS

American Jurisprudence, Second Edition Copyright © 2008 West Group

Eric C. Surette, J.D.

Name

57 Am Jur 2d Name Summary

Name Summary

Scope:This article considers names of individuals in their legal aspects, and includes a discussion of the use of fictitious or as-sumed names, including doing business under an assumed or fictitious name. The article also encompasses change of name and the general principles relating to the doctrine of idem sonans, which deals with names that sound alike. Treated Elsewhere:Acknowledgment of instruments: omission of name of party executing instrument from certificate of acknowledgment as affecting validity of certificate, see 1 Am. Jur. 2d, Acknowledgment ß 51; effect of mistake or variance in name of person acknowledging instrument or acknowledging person's name, see 1 Am. Jur. 2d, Acknowledgment ß 52Adoption, change of name as consequence of, see 2 Am. Jur. 2d, Adoption ßß 149, 178Aliens and citizens: alien's change of name in naturalization proceedings, see 3C Am. Jur. 2d, Aliens and Citizens ß 3018; issuance of new certificate of naturalization in new name where naturalized citizen's name is changed after natu-ralization, see 3C Am. Jur. 2d, Aliens and Citizens ßß 3126, 3127Bills and notes: identity of parties to bill, note, or check, see 11 Am. Jur. 2d, Bills and Notes ß 70Broker's authority to contract in his or her own name, 12 Am. Jur. 2d, Brokers ß 92Contracts: designation of parties to contract as affecting its validity, see 17A Am. Jur. 2d, Contracts ß 422; designation of third-party beneficiary of contract, see 17A Am. Jur. 2d, Contracts ß 454Corporation's use of other than true name, see 18A Am. Jur. 2d, Corporations ßß 284, 285Deeds, designation of parties in, see 23 Am. Jur. 2d, Deeds ßß 33 to 41Deposition notice, identification of person to be examined in, see 23 Am. Jur. 2d, Depositions and Discovery ß 144Divorce and separation: restoration of wife's former or maiden name, see 24 Am. Jur. 2d, Divorce and Separation ß 390; effect of incorrect name, or variant of name, appearing on return or proof of service, see 24 Am. Jur. 2d, Divorce and Separation ß 290Election ballots, designation of candidates on, see 26 Am. Jur. 2d, Elections ßß 309 to 311Evidence: identity of names as raising presumption of identity of persons, see 29 Am. Jur. 2d, Evidence ßß 285 to 287Executions: requirement that execution recite names of parties, see 30 Am. Jur. 2d, Executions and Enforcement of Judgments ßß 91 to 93False personation, see 32 Am. Jur. 2d, False Personation ßß 1 et seq.Forgery, use of name in commission of, see 36 Am. Jur. 2d, Forgery ßß 7 et seq.Good will, name as element of, see 38 Am. Jur. 2d, Good Will ßß 7, 20Indictment or information: name or description of person in charging instrument, see 41 Am. Jur. 2d, Indictments and Informations ßß 142 to 148; plea in abatement as means of raising objection to misnomer of accused, see 21 Am. Jur. 2d, Criminal Law ß 623Judgments: names of parties in judgment record or docket as necessary to validity of, see 46 Am. Jur. 2d, Judgments ßß 151 to 155Mortgage, designation of parties as necessary to validity of, see 54A Am. Jur. 2d, Mortgages ß 24Parties to civil actions, designation of, see 59 Am. Jur. 2d, Parties ßß 15 to 18Privacy, unauthorized use of person's name or likeness as tortious invasion of, see 62A Am. Jur. 2d, Privacy ßß 68 to 90

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Process: designation and names of parties in process, see 62B Am. Jur. 2d, Process ßß 79 to 86; names in service by publication, see 62B Am. Jur. 2d, Process ßß 256 to 259Tradenames, see 74 Am. Jur. 2d, Trademarks and Tradenames ßß 1 et seq.Wills: necessity that beneficiary be clearly identified, see 79 Am. Jur. 2d, Wills ß 38; construction and interpretation of will with respect to identification or name of beneficiary, see 80 Am. Jur. 2d, Wills ßß 1184 to 1191

REFERENCE: Research References A.L.R. Digest: NameA.L.R. Index: Assumed or Fictitious NamesA.L.R. Index: Change of NameA.L.R. Index: Idem SonansA.L.R. Index: Maiden NameA.L.R. Index: Middle Name or InitialA.L.R. Index: NamesProof of Liability for Entity's Failure to Acquire Fictitious Name Certification, 56 Am. Jur. Proof of Facts 3d 103Mistake in Naming or Designating Beneficiary in Will, 2 Am. Jur. Proof of Facts 2d 69313B Am. Jur. Legal Forms 2d, Name18A Am. Jur. Pleading and Practice Forms, Name

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Name I. In General

A. Basic Rules

57 Am Jur 2d Name ß 1

ß 1 Definition

For all practical and legal purposes, a person's name is the designation by which the person is known and called in the community in which the person lives and is best known. n1 It has been defined as the word or combination of words by which a person is distinguished from other individuals, n2 and, also, as the label or appellation a person bears for the con-venience of the world at large in addressing him or her, or in speaking of or dealing with said person. n3 A person's name is the designation given to the individual by himself or herself and others n4 and consists, in law, of a given or Christian name, and a family surname. n5

A numeral is not a name, because, while words may consist of letters or letters and symbols, it is common knowledge that words do not consist solely of numbers or symbols. n6 Also, a description or abbreviation is not the equivalent of a name. n7

Observation: The word "name," as used in statutes, should be taken in its plain, ordinary, and usual sense and not be specifically limited to a Christian name or given name. n8

FOOTNOTES:

n1 Stevenson v. Ellisor, 270 S.C. 560, 243 S.E.2d 445 (1978).

n2 Petition of Dengler, 246 N.W.2d 758 (N.D. 1976).

n3 Weathers v. Modern Masonry Materials, Inc., 107 Ga. App. 34, 129 S.E.2d 65 (1962).

n4 Hosmer v. Hosmer, 611 S.W.2d 32 (Mo. Ct. App. S.D. 1980).

n5 Carroll v. Johnson, 263 Ark. 280, 565 S.W.2d 10 (1978); In re Brast, 32 Conn. Supp. 1, 334 A.2d 483 (Super. Ct. 1974); Reynolds v. Nowotny, 189 N.W.2d 557 (Iowa 1971).

n6 In re Ritchie, 159 Cal. App. 3d 1070, 206 Cal. Rptr. 239 (1st Dist. 1984) (name suggested by appellant, "III," failed to qualify as name within meaning of either the common law or the statute); Petition of Dengler, 246 N.W.2d 758 (N.D. 1976) (petition to change name to "1069" was denied).

n7 W.B. Mfg. Co. v. Rubenstein, 236 Mass. 215, 128 N.E. 21, 11 A.L.R. 1283 (1920). As to abbreviations, generally, see ß 6.

n8 Stevenson v. Ellisor, 270 S.C. 560, 243 S.E.2d 445 (1978).

REFERENCE: West's Key Number Digest, Names [westkey]1 to 15

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A.L.R. Digest: Name ßß 1, 2A.L.R. Index: Maiden NameA.L.R. Index: Middle Name or InitialA.L.R. Index: NamesMistake in Naming or Designating Beneficiary in Will, 2 Am. Jur. Proof of Facts 2d 693 ßß 16, 18

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Name I. In General

A. Basic Rules


ß 2 Use and acquisition

At common law, a person could adopt any name he or she wished, n1 without resort to any court and without legal pro-ceedings, n2 provided it was not done for fraudulent purposes, n3 and this rule is continued in some states by statute. n4 By custom, a surname is continued from parent to child, n5 and it has been said that this custom serves four major purposes:

1ease of inheritance;

2governmental convenience;

3genealogical or historical convenience; and

4promotion of marriage and family life. n6

It is also said that one function of the "family" surname is to identify those persons who live in an economic and social unit. n7

Unlike a trademark, a proper name cannot be deemed abandoned throughout its possessor's life, despite a failure to use it, or continue to use it, commercially. n8

Observation: A person has a property right in the use of his or her name which a person may assign. n9

FOOTNOTES:

n1 In re Adoption/Guardianship No. 3155 Circuit Court for Harford County, 103 Md. App. 300, 653 A.2d 521 (1995); Rappleye v. Rappl-eye, 183 Mich. App. 396, 454 N.W.2d 231 (1990).

n2 Rappleye v. Rappleye, 183 Mich. App. 396, 454 N.W.2d 231 (1990).

n3 In re Adoption/Guardianship No. 3155 Circuit Court for Harford County, 103 Md. App. 300, 653 A.2d 521 (1995); Rappleye v. Rappl-eye, 183 Mich. App. 396, 454 N.W.2d 231 (1990).

n4 In re Name Change of Handley, 107 Ohio Misc. 2d 24, 736 N.E.2d 125 (Prob. Ct. 2000).

n5 Buckley v. State, 19 Ala. App. 508, 98 So. 362 (1923); Roberts v. Mosier, 1913 OK 207, 35 Okla. 691, 132 P. 678 (1913).

n6 Rio v. Rio, 132 Misc. 2d 316, 504 N.Y.S.2d 959 (Sup 1986).

n7 Doe v. Dunning, 87 Wash. 2d 50, 549 P.2d 1 (1976).

n8 Abdul-Jabbar v. General Motors Corp., 85 F.3d 407 (9th Cir. 1996).

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n9 Gracey v. Maddin, 769 S.W.2d 497 (Tenn. Ct. App. 1989).

REFERENCE: West's Key Number Digest, Names [westkey]1 to 15A.L.R. Digest: Name ßß 1, 2A.L.R. Index: Maiden NameA.L.R. Index: Middle Name or InitialA.L.R. Index: NamesMistake in Naming or Designating Beneficiary in Will, 2 Am. Jur. Proof of Facts 2d 693 ßß 16, 18

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Name I. In General

A. Basic Rules


ß 3 First name

The Christian or first name is, in law, denominated the "proper name," n1 and has been used from early times to distin-guish a particular individual from that person's fellows. n2 It is ordinarily selected for a child by the child's parents n3 and is usually conferred upon a person at birth or baptism. n4 Originally, it was the only name which was recognized in law; consequently, it has always been considered an essential part of a person's name. n5 It has been held that the law knows but one first name of a single individual. n6

FOOTNOTES:

n1 Roberts v. Mosier, 1913 OK 207, 35 Okla. 691, 132 P. 678 (1913).

n2 Smith v. United States Casualty Co., 197 N.Y. 420, 90 N.E. 947 (1910).

n3 Laflin & Rand Powder Co. v. Steytler, 146 Pa. 434, 23 A. 215 (1892).

n4 Riley v. Litchfield, 168 Iowa 187, 150 N.W. 81 (1914).

n5 Proctor v. Nance, 220 Mo. 104, 119 S.W. 409 (1909).

n6 Ex parte Woods, 367 So. 2d 985 (Ala. 1979).


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Name I. In General

A. Basic Rules


ß 4 Middle name or initial

Under the early common law, still recognized in some states, a middle name or initial was not recognized, n1 and is gen-erally disregarded unless only the initial of the first name is given, or where a question of identity is involved, or when it appears two persons have each the same first name and surname and can be distinguished only by the middle name or initial of each. n2 Middle names and initials have been considered as not essential, n3 or immaterial, being unknown at common law. n4 It is immaterial whether a mistake is made in the middle name of a person, or whether such name is omitted entirely from an indictment, n5 from pleadings or process in a civil action, n6 or from a recorded instrument, such as a conveyance, n7 since a person's middle name has little, if any, legal significance. n8

Some courts, while deeming the entire omission of a middle name or initial to be immaterial, take the position that a mistake in the middle name or initial is a variance. n9 Other courts hold that a mistake in the middle initial is fatal where a person is designated only by initials. n10

It is recognized that persons may drop their first names and use only their middle names. n11

FOOTNOTES:

n1 Bond v. Riley, 317 Mo. 594, 296 S.W. 401 (1927); Northern Trust Co. v. Perry, 105 Vt. 524, 168 A. 710, 94 A.L.R. 7 (1933).

n2 Reynolds v. Nowotny, 189 N.W.2d 557 (Iowa 1971).

n3 In re Brast, 32 Conn. Supp. 1, 334 A.2d 483 (Super. Ct. 1974).

n4 Williams v. State, 461 S.W.2d 614 (Tex. Crim. App. 1970).

n5 41 Am. Jur. 2d, Indictments and Informations ß 146.

n6 62B Am. Jur. 2d, Process ßß 256 to 259.

n7 23 Am. Jur. 2d, Deeds ß 36.

n8 State v. McMillan, 593 S.W.2d 629 (Mo. Ct. App. S.D. 1980); Imperial-Yuma Production v. Hunter, 609 P.2d 1329 (Utah 1980).

n9 Cleveland, C., C. & St. L.R. Co. v. Pierce, 34 Ind. App. 188, 72 N.E. 604 (Div. 2 1904).

n10 First Nat. Bank v. Hacoda Mercantile Co., 169 Ala. 476, 53 So. 802 (1910); Carney v. Bigham, 51 Wash. 452, 99 P. 21 (1909).

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n11 H.R. & C. Co. v. Smith, 242 N.Y. 267, 151 N.E. 448, 45 A.L.R. 554 (1926).


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Name I. In General

A. Basic Rules


ß 5 Initials and single letters

A given name may consist simply of a letter or letters, whether vowel or consonant, n1 and where a surname is preceded by single letters, no presumption is said to exist that they are merely initials rather than the full given name of the person designated. n2 Generally, however, though it is not impossible that a single letter should constitute a name, such in-stances are rare, and ordinarily, such a letter is the first or initial letter of a name which is not fully expressed. n3 In some states, public interest concerns counsel against permitting the official use of an initial as a surname, particularly where a petitioner fails to demonstrate that the desired name carries any special meaning or significance. n4

Initials are not an essential part of a name. n5 Although some decisions sanction the use of initials followed by the sur-name in full in naming a party in legal proceedings, n6 such a practice is usually discountenanced. n7

FOOTNOTES:

n1 People v. Reilly, 257 Ill. 538, 101 N.E. 54 (1913); Stratton v. McDermott, 89 Neb. 622, 131 N.W. 949 (1911).

n2 People v. Reilly, 257 Ill. 538, 101 N.E. 54 (1913); Stratton v. McDermott, 89 Neb. 622, 131 N.W. 949 (1911).

n3 Illinois Cent. R. Co. v. Hasenwinkle, 232 Ill. 224, 83 N.E. 815 (1908); Loser v. Plainfield Savings Bank, 149 Iowa 672, 128 N.W. 1101 (1910).

n4 In re Ravitch, 2000 PA Super 179, 754 A.2d 1287 (Pa. Super. Ct. 2000).


n6 Calhoun v. F.G. Elliott Hardware Co., 34 Del. 552, 156 A. 343 (Super. Ct. 1931).

Related References:As to initials as signatures on deeds, see 23 Am. Jur. 2d, Deeds ß 36. As to assessment of taxes by initials instead of full names, see 72 Am. Jur. 2d, State and Local Taxation ßß 922, 976.

n7 Walton v. Marietta Chair Co., 157 U.S. 342, 15 S. Ct. 626, 39 L. Ed. 725 (1895); Proctor v. Nance, 220 Mo. 104, 119 S.W. 409 (1909).

REFERENCE: West's Key Number Digest, Names [westkey]1 to 15A.L.R. Digest: Name ßß 1, 2A.L.R. Index: Maiden Name

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A.L.R. Index: Middle Name or InitialA.L.R. Index: NamesMistake in Naming or Designating Beneficiary in Will, 2 Am. Jur. Proof of Facts 2d 693 ßß 16, 18

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Name I. In General

A. Basic Rules


ß 6 Abbreviations and corruptions

A commonly known diminutive or abbreviation of a name is sufficient to identify a person in the absence of evidence indicating that a different person is intended. n1 Further, as a general rule, courts will take judicial notice of ordinary and commonly used abbreviations n2 or corruptions of given or first names. n3 However, an abbreviation will not be judicially noticed unless it is one that is universally recognized as an abbreviation of the full name contended. n4

In some instances, the identity between a full name and an abbreviation not judicially known can be presumed from sur-rounding circumstances. n5 Where two names have the same original derivation, or where one is an abbreviation or cor-ruption of the other, but both are taken to be the same according to common usage, though differing in sound, the use of one for the other has not been regarded as a material misnomer, n6 though this is not always true. n7

FOOTNOTES:

n1 Salazar v. Tower, 683 S.W.2d 797 (Tex. App. Corpus Christi 1984).

n2 Brown v. Piper, 91 U.S. 37, 23 L. Ed. 200 (1875).

n3 State ex rel. Scher v. Ayres, 217 Ind. 179, 26 N.E.2d 1002 (1940). It has been held that certain standard abbreviations and derivatives of the more common first names are interchangeable with full names, such as "Alex." for "Alexander," "Wm." for "William," "Geo." for "George," "Jos." for "Joseph," "Saml." or "Sam'l." for "Samuel," "Thos." for "Thomas," and the like. Clinton v. Miller, 124 Mont. 463, 226 P.2d 487 (1951).

n4 In re Nunes' Estate, 123 Cal. App. 2d 150, 266 P.2d 574 (1st Dist. 1954).

n5 Layman v. Southwestern Bell Tel. Co., 554 S.W.2d 477 (Mo. Ct. App. 1977).

n6 H.R. & C. Co. v. Smith, 242 N.Y. 267, 151 N.E. 448, 45 A.L.R. 554 (1926) ("Bess," "Bessie," "Bettie," and "Elizabeth"); Ex parte El-liott, 542 S.W.2d 863 (Tex. Crim. App. 1976) ("Bob" and "Robert").

n7 Grober v. Clements, 71 Ark. 565, 76 S.W. 555 (1903) ("Minnie" and "Wilhelmina" or "Mena").


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Name I. In General

A. Basic Rules


ß 7 Nicknames

A nickname has been defined as a short name, one nicked or cut off for the sake of brevity. n1 Certain standard nick-names for the more common first names are interchangeable with full names. n2

Practice Guide: It has been held that in proceedings founded on constructive notice, the defendant should not be designated by a corrupted name or nickname, for the reason that such a designation is insufficient to give the court juris-diction. n3

Nicknames may bear no relation to a person's given name, unlike a derivative of the name by which a person is usually and commonly known, n4 and frequently purport to state some characteristic, such as "Crazy Nolan." n5

Practice Guide: Such nicknames are not so generally expressive of the characteristics of the persons to whom they are applied as to be competent evidence for the purpose of proving that the bearer of the name possesses the characteris-tics denoted by the name. n6

FOOTNOTES:

n1 Ohlmann v. Clarkson Sawmill Co., 222 Mo. 62, 120 S.W. 1155 (1909).

Related References:Mistake in Naming or Designating Beneficiary in Will, 2 Am. Jur. Proof of Facts 2d 693 ß 16.

n2 Clinton v. Miller, 124 Mont. 463, 226 P.2d 487 (1951) ("Bill" for "William," "Bob" for "Robert," "Dan" for "Daniel," "Jack" for "John," "Joe" for "Joseph," "Sam" for "Samuel," "Tom" for "Thomas").

n3 Ohlmann v. Clarkson Sawmill Co., 222 Mo. 62, 120 S.W. 1155 (1909).

n4 Stevenson v. Ellisor, 270 S.C. 560, 243 S.E.2d 445 (1978) (woman was permitted to use the name "Nancy" rather than her given name "Ferdinan" on a general election ballot where the court found that "Nancy" was a derivative of the respondent's given name).

n5 Marrinan v. New York Cent. & H.R.R. Co., 13 A.D. 439, 43 N.Y.S. 606 (4th Dep't 1897).

n6 Marrinan v. New York Cent. & H.R.R. Co., 13 A.D. 439, 43 N.Y.S. 606 (4th Dep't 1897).

REFERENCE: West's Key Number Digest, Names [westkey]1 to 15A.L.R. Digest: Name ßß 1, 2A.L.R. Index: Maiden Name

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A.L.R. Index: Middle Name or InitialA.L.R. Index: NamesMistake in Naming or Designating Beneficiary in Will, 2 Am. Jur. Proof of Facts 2d 693 ßß 16, 18

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Name I. In General

A. Basic Rules


ß 8 Prefixes and suffixes

The designation "Mr." or "Mrs." preceding the name of a person is legally regarded as a mere title, and no part of a per-son's legal name. n1 The title "Mrs." may be used to indicate the legal status of a married woman as well as to distinguish a woman from her husband. n2

The suffix "Senior" or "Sr." is no part of a person's name. n3 Likewise, suffixes such as "Junior" or "Jr." or words of sim-ilar import are ordinarily not part of a person's name, and it is normally not necessary to add it to a name in a legal docu-ment. n4 It is neither a baptismal or a family name, but constitutes an addition to distinguish between two or more per-sons bearing the same name. n5 Under appropriate circumstances, however, the suffix "Junior" may be regarded as a con-stituent part of a person's legal name. n6

The letters "Dr." have a well-understood meaning, and, when used as prefix, serve as a description but do not add to or detract from the true name of a person. n7

FOOTNOTES:

n1 Harrell v. Alabama Farm Bureau Mut. Cas. Ins. Co., 287 Ala. 259, 251 So. 2d 220 (1971); Petition of Dengler, 246 N.W.2d 758 (N.D. 1976).

n2 Huff v. State Election Bd., 1934 OK 307, 168 Okla. 277, 32 P.2d 920, 93 A.L.R. 906 (1934).

n3 Reynolds v. Nowotny, 189 N.W.2d 557 (Iowa 1971).

n4 Morton v. State Officers Electoral Bd., 311 Ill. App. 3d 982, 244 Ill. Dec. 605, 726 N.E.2d 201 (4th Dist. 2000).

n5 State v. Superior Court of Whatcom County, 122 Wash. 255, 210 P. 380 (1922).

n6 Dunaway v. Lindsley-Feiber Motor Co., 73 So. 2d 505 (La. Ct. App. 1st Cir. 1954).

n7 Gears v. State, 203 Ind. 3, 176 N.E. 553 (1931).


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Name I. In General

B. Married Woman's Name


ß 9 Surname; right to retain maiden name

The right of a woman to her birth-given name, notwithstanding marriage, is established in law. n1 It is now generally rec-ognized that a married woman acquires her husband's surname by repute only, as a matter of custom rather than as a matter of law. n2 The common-law rule that a person may nonfraudulently adopt any name n3 has been used as a basis for approving a married woman's use of her maiden surname. n4 A married woman's surname does not become that of her husband where she evinces a clear intent to consistently and nonfraudulently use her birth-given name subsequent to her marriage. n5 A married woman may file a petition for the dissolution of marriage, n6 register to vote, n7 and run for politi-cal office under her maiden name. n8 This does not imply that a woman's legal surname may not become that of her hus-band through her consistent use of the husband's name following marriage. n9

Practice Guide: Some states have statutes under which each married party is allowed to declare which surname each will use as a married person and it may be the person's own surname, the spouse's surname or a hyphenated combi-nation of the two. n10

A contrary view still exists in some states, stating that a woman, on marriage, abandons her maiden name and assumes her husband's surname. n11

FOOTNOTES:

n1 Pilch v. Pilch, 447 So. 2d 989 (Fla. Dist. Ct. App. 1st Dist. 1984).

n2 Malone v. Sullivan, 124 Ariz. 469, 605 P.2d 447 (1980); Davis v. Roos, 326 So. 2d 226 (Fla. Dist. Ct. App. 1st Dist. 1976). There is no Ohio law that compels a woman, on marriage, to adopt the surname of her husband, and a woman may choose to marry and to retain her family surname. Ball v. Brown, 450 F. Supp. 4 (N.D. Ohio 1977).

Related References:Right of married woman to use maiden surname, 67 A.L.R. 3d 1266 ß 4. Notice of use of maiden surname. 13B Am. Jur. Legal Forms 2d, Name ß 182:44. Application for change of name -- Use of maiden surname. 13B Am. Jur. Legal Forms 2d, Name ß 182:45. Petition or application -- To change adult woman's surname to maiden name. 18A Am. Jur. Pleading and Practice Forms, Name ß 15.

n3 ß 2.

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n4 State v. Taylor, 415 So. 2d 1043 (Ala. 1982); Malone v. Sullivan, 124 Ariz. 469, 605 P.2d 447 (1980). For a discussion of application by married, divorced, or separated women for a statutory change of name, see ß 42.

Related References:Right of married woman to use maiden surname, 67 A.L.R. 3d 1266 ß 5.

n5 Stuart v. Board of Sup'rs of Elections for Howard County, 266 Md. 440, 295 A.2d 223 (1972).

n6 Malone v. Sullivan, 124 Ariz. 469, 605 P.2d 447 (1980); Simmons v. O'Brien, 201 Neb. 778, 272 N.W.2d 273 (1978).

n7 State v. Taylor, 415 So. 2d 1043 (Ala. 1982).

Related References:Right of married woman to use maiden surname, 67 A.L.R. 3d 1266 ß 12[b].

n8 State ex rel. Krupa v. Green, 114 Ohio App. 497, 19 Ohio Op. 2d 341, 177 N.E.2d 616 (8th Dist. Cuyahoga County 1961).

n9 Custer v. Bonadies, 30 Conn. Supp. 385, 318 A.2d 639 (Super. Ct. 1974); Kruzel v. Podell, 67 Wis. 2d 138, 226 N.W.2d 458, 67 A.L.R.3d 1249 (1975).

n10 Doe v. Dunning, 87 Wash. 2d 50, 549 P.2d 1 (1976).

n11 Application of Halligan, 46 A.D.2d 170, 361 N.Y.S.2d 458 (4th Dep't 1974); Custer v. Bonadies, 30 Conn. Supp. 385, 318 A.2d 639 (Super. Ct. 1974) (recognizing rule).


REFERENCE: West's Key Number Digest, Names [westkey]1 to 15A.L.R. Digest: Name ßß 1, 2 and 4A.L.R. Index: Maiden NameA.L.R. Index: Middle Name or InitialA.L.R. Index: Names13B Am. Jur. Legal Forms 2d, Name ßß 182:44, 182:4518A Am. Jur. Pleading and Practice Forms, Name, Form 15

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Name I. In General



ß 10 Effect of particular factors

The fact that at some stage in the marriage a child is born does not operate so as to deprive a wife of the use of her prenuptial name. n1 While the existence or possible future existence of children in the marriage in question is a consider-ation, the retention by the wife of her maiden name, in itself, has not been considered an embarrassment to existing chil-dren n2 or otherwise contrary to the best interests of children that might thereafter be born in the marriage. n3 A statutory requirement that a married woman register to vote under her legal name, based upon a broad general principle of the ne-cessity of proper record-keeping, does not require a woman to register under her husband's name where she has retained her maiden name. n4 The increased cost and inconvenience in the keeping of public records, or confusion and the result-ing frustration of the aims of such record-keeping have warranted denial of a wife's use of her maiden name, as where allowing a married driver's license applicant and others of her class to use maiden surnames would result in administra-tive inconvenience and added costs to the state, outweighing any harm to the applicant in using her husband's surname, n5

and where allowing a married voter to retain her maiden name on the registry of voters could conceivably promote fraud and confusion and make superfluous statutory provisions requiring re-registration by any registered voter who had changed his or her name by marriage or other means. n6 The existence of an antenuptial agreement between spouses per-mitting the wife's continued use of her maiden surname is another factor upon which such use has been sustained. n7

FOOTNOTES:

n1 Klein v. Klein, 36 Md. App. 177, 373 A.2d 86 (1977).

n2 In re Mullinix, 152 Ga. App. 215, 262 S.E.2d 540 (1979); Petition of Hauptly, 262 Ind. 150, 312 N.E.2d 857 (1974).


n3 Kruzel v. Podell, 67 Wis. 2d 138, 226 N.W.2d 458, 67 A.L.R.3d 1249 (1975).

n4 Stuart v. Board of Sup'rs of Elections for Howard County, 266 Md. 440, 295 A.2d 223 (1972).

n5 Forbush v. Wallace, 341 F. Supp. 217 (M.D. Ala. 1971), judgment aff'd, 405 U.S. 970, 92 S. Ct. 1197, 31 L. Ed. 2d 246 (1972).

n6 People ex rel. Rago v. Lipsky, 327 Ill. App. 63, 63 N.E.2d 642 (1st Dist. 1945).

n7 Stuart v. Board of Sup'rs of Elections for Howard County, 266 Md. 440, 295 A.2d 223 (1972); State ex rel. Krupa v. Green, 114 Ohio App. 497, 19 Ohio Op. 2d 341, 177 N.E.2d 616 (8th Dist. Cuyahoga County 1961).

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Name I. In General



ß 11 First name

The correct first name of a married woman is her maiden first name, and not the first name of her husband. n1 However, a married woman is sufficiently identified for legal purposes where she is designated as "Mrs." followed by her hus-band's middle name and surname, n2 or by his initials and surname. n3

FOOTNOTES:

n1 Wilty v. Jefferson Parish Democratic Executive Committee, 245 La. 145, 157 So. 2d 718 (1963); Brown v. Reinke, 159 Minn. 458, 199 N.W. 235, 35 A.L.R. 413 (1924).

n2 Carroll v. State, 53 Neb. 431, 73 N.W. 939 (1898).

n3 Roberts v. Grayson, 233 Ala. 658, 173 So. 38 (1937).


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Name I. In General

C. Minor's Name


ß 12 Child's rights to name

It is generally recognized that children have a common-law right to take any name they may choose, but this right is not absolute and must not interfere with the rights of others. n1 The common law permits a minor who is of sufficient age and maturity to make an intelligent choice to assume any chosen name. n2

FOOTNOTES:

n1 In re Marriage of Omelson, 112 Ill. App. 3d 725, 68 Ill. Dec. 307, 445 N.E.2d 951 (5th Dist. 1983) (recognizing rule); Hall v. Hall, 30 Md. App. 214, 351 A.2d 917, 92 A.L.R.3d 1077 (1976).

n2 Rappleye v. Rappleye, 183 Mich. App. 396, 454 N.W.2d 231 (1990).

REFERENCE: West's Key Number Digest, Names [westkey]1 to 15A.L.R. Digest: Name ßß 1, 2A.L.R. Index: Change of NameA.L.R. Index: Names

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Name I. In General

C. Minor's Name


ß 13 Child born out of wedlock; custody at birth

Under the common law, a child born out of wedlock has no rights as to the natural father, including no right to the fa-ther's name. n1 Thus, if parents of children born out of wedlock marry, the children's names do not automatically con-form to the father's surname when the surname on the children's birth certificates is that of the mother. n2 Insofar as sur-names give an individual a personal identity and self-awareness, a minor child born out of wedlock has a "liberty" inter-est at stake when the child's name is altered because the name change touches on the right to maintain the integrity of established family relations. n3 The best interests of the child is the standard applied in determining the surname to be given to a child, regardless of the child's birth status. n4

A mother now does not have an absolute right to name a child because of custody due to birth. n5

FOOTNOTES:

n1 Application of Fisher, 204 N.J. Super. 75, 497 A.2d 907 (Law Div. 1985). Under the common law, a father of a child born in lawful wedlock has a primary right or protectable interest in having that child bear his sur-name, while the mother of a child born out of wedlock has a primary right or protectable interest in that child bearing her surname. Donald J. v. Evna M., 81 Cal. App. 3d 929, 147 Cal. Rptr. 15 (5th Dist. 1978).

n2 Aitkin County Family Service Agency v. Girard, 390 N.W.2d 906 (Minn. Ct. App. 1986).

n3 Roe v. Conn, 417 F. Supp. 769 (M.D. Ala. 1976).

n4 Gubernat v. Deremer, 140 N.J. 120, 657 A.2d 856 (1995).

n5 Keegan v. Gudahl, 525 N.W.2d 695, 40 A.L.R.5th 901 (S.D. 1994).


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Name I. In General

C. Minor's Name


ß 14 Parents' rights to name child

Neither parent has a superior right to determine the surname of a child, n1 nor a legal entitlement to have a child receive his or her surname. n2 Accordingly, absent a statute to the contrary, the widespread custom of giving a child the surname of the child's father is a matter of choice rather than law. n3 Although the traditional practice has been that a child bears the surname of the child's father, n4 it is now usually recognized that naming of a child is a right and privilege belonging to both of the child's parents, n5 and it can no longer be said that one parent has a primary right or protectable interest in having the child bear and maintain his or her surname merely because of that parent's sex and marital status with respect to that child's other parent at the time the child is born. n6 It follows that although a father has a recognized interest in having his child bear his surname, a father has no legal entitlement to require a child to bear his name. n7

The common-law principle of freedom of choice in the matter of names extends to the names chosen by a married cou-ple for their children. n8 Accordingly, assuming an agreement between the parents, a child's surname can be the father's, the mother's, both (either hyphenated or not), or any other surname. n9 However, it is not clear that parents are free to se-lect as the name of their child a surname borne by neither of them. n10

In resolving disputes over the surnames of a child, the courts apply the best interests of child standard, n11 free of gender-based notions of parental rights, n12 and the rights of parents must yield to that concern. n13 The best interests of the child approach for determining which parent's surname a child should bear is fact sensitive. n14 In contested cases, a strong presumption exists that the surname selected for a child by the custodial parent, that being the parent primarily charged with making custodial decisions, is consistent with the child's best interests. n15 However, the strong presumption that the surname selected for a child by the custodial parent is in the child's best interests is rebuttable by evidence that a differ-ent surname would better serve those interests, and the noncustodial parent bears the burden of demonstrating by a pre-ponderance of evidence that, despite the presumption, a chosen surname is not in the best interests of the child. n16

FOOTNOTES:

n1 Cohan v. Cunningham, 104 A.D.2d 716, 480 N.Y.S.2d 656 (4th Dep't 1984); Daves v. Nastos, 105 Wash. 2d 24, 711 P.2d 314 (1985).

Related References:Rights and remedies of parents inter se with respect to the names of their children, 40 A.L.R. 5th 697.

n2 Swank v. Petkovsek, 216 A.D.2d 920, 629 N.Y.S.2d 129 (4th Dep't 1995).

n3 In re Custody of J.C.O., 1999 MT 325, 297 Mont. 327, 993 P.2d 667 (1999).

n4 M.D. v. A.S.L., 275 N.J. Super. 530, 646 A.2d 543 (Ch. Div. 1994).

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For discussion of parents' rights and interests respecting a minor's change of name, see ß 44.

n5 D'Ambrosio v. Rizzo, 12 Mass. App. Ct. 926, 425 N.E.2d 369 (1981). It is only reasonable to allow a mother and father equal rights in the naming of a child, since, upon a determination of paternity, both the mother and father potentially enjoy equal legal rights as parents. Matter of J.N.H., 659 N.E.2d 644 (Ind. Ct. App. 1995).

n6 Donald J. v. Evna M., 81 Cal. App. 3d 929, 147 Cal. Rptr. 15 (5th Dist. 1978). Courts should not give greater weight to father's interest in having child bear paternal surname, as opposed to mother's surname. Pizziconi v. Yarbrough, 177 Ariz. 422, 868 P.2d 1005 (Ct. App. Div. 1 1993).

n7 Ryan v. Schmidt, 221 A.D.2d 449, 633 N.Y.S.2d 558 (2d Dep't 1995). A father is not automatically entitled to insist that a child be given his surname. Durham v. McNair, 659 So. 2d 1291 (Fla. Dist. Ct. App. 5th Dist. 1995).

n8 Secretary of Com. v. City Clerk of Lowell, 373 Mass. 178, 366 N.E.2d 717 (1977).



n11 In re Marriage of Douglass, 205 Cal. App. 3d 1046, 252 Cal. Rptr. 839 (5th Dist. 1988); Cardinal v. Perch, 611 A.2d 515 (Del. Fam. Ct. 1991).

n12 Gubernat v. Deremer, 140 N.J. 120, 657 A.2d 856 (1995). The law does not presume it is in a child's best interest to carry the father's surname. Schubert v. Tolivar, 905 S.W.2d 924 (Mo. Ct. App. E.D. 1995).

n13 Halloran v. Kostka, 778 S.W.2d 454 (Tenn. Ct. App. 1988).





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Name I. In General

C. Minor's Name


ß 15 Constitutional issues

The Fourteenth Amendment protects a parent's freedom of choice in naming one's child, and a state may not interfere with that right arbitrarily. n1 Since parents have a constitutionally protected right to choose the name of their child, the state must at least show that any intrusion on that right has a reasonable relationship to some state purpose. n2 Accord-ingly, a statute requiring a child conceived and born in wedlock be given the surname of the father is unconstitutional and the parents are entitled to give their child a surname which is a fusion of both parents' surnames, n3 or a hyphenated combination of the two parents' surnames. n4 Additionally, a statute requiring an unmarried mother to register the child by the mother's surname, while allowing a married mother to designate the child's surname violates equal protection. n5 However, it has been held that parents do not have a constitutionally protected right to give a child a surname at birth with which that child has no legally recognized parental connection. n6 Consequently, a statute pursuant to which the sur-name given to a child at birth has to have a connection with at least one legally verifiable parent bares a rational rela-tionship to the state's legitimate interests in promoting the welfare of children, in ensuring that names of citizens are not appropriated for improper purposes, and in inexpensive and efficient record-keeping, and such a statute does not uncon-stitutionally restrict the rights of parents. n7 It has also been held that a statute providing that a child's surname will be entered on the birth certificate as that of the husband if the mother was married at the time of conception is not unconsti-tutional, as a state's desire to ensure the accuracy and reliability of its vital statistics is a reasonable justification for any intrusion on the parents' joint rights to choose a child's name. n8 Further, a statute allowing a parent with actual or legal custody at the time of the preparation of a birth certificate to enter the name of a child is gender-neutral, even though in many, if not most, instances the mother will be the person with actual physical custody, and such a statute does not vio-late equal protection. n9

The concept of a vested paternal surname presumption has been held to deny mothers equal parental rights since, as a matter of constitutional law, parents who have taken responsibility for the child have equal decisional rights respecting that child. n10 Under this view, no preference is accorded to either the paternal or the maternal surname, n11 and there is no legal impediment to prevent married parents from giving their child the mother's surname. n12

FOOTNOTES:

n1 Jech v. Burch, 466 F. Supp. 714 (D. Haw. 1979); O'Brien v. Tilson, 523 F. Supp. 494 (E.D.N.C. 1981).

n2 Sydney v. Pingree, 564 F. Supp. 412 (S.D. Fla. 1982).

n3 Sydney v. Pingree, 564 F. Supp. 412 (S.D. Fla. 1982); Jech v. Burch, 466 F. Supp. 714 (D. Haw. 1979).

n4 O'Brien v. Tilson, 523 F. Supp. 494 (E.D.N.C. 1981).

n5 Brill v. Hedges, 783 F. Supp. 340 (S.D. Ohio 1991).

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n6 Henne v. Wright, 904 F.2d 1208, 16 Fed. R. Serv. 3d 908 (8th Cir. 1990).

n7 Henne v. Wright, 904 F.2d 1208, 16 Fed. R. Serv. 3d 908 (8th Cir. 1990).

n8 Robertson v. Pfister, 523 So. 2d 678 (Fla. Dist. Ct. App. 4th Dist. 1988).

n9 Steinbach v. Gustafson, 177 Wis. 2d 178, 502 N.W.2d 156 (Ct. App. 1993).

n10 O'Brien v. Tilson, 523 F. Supp. 494 (E.D.N.C. 1981); Rio v. Rio, 132 Misc. 2d 316, 504 N.Y.S.2d 959 (Sup 1986).

n11 Application of Saxton, 309 N.W.2d 298 (Minn. 1981).

n12 Secretary of Com. v. City Clerk of Lowell, 373 Mass. 178, 366 N.E.2d 717 (1977); Beyah v. Shelton, 231 Va. 432, 344 S.E.2d 909 (1986).


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Name II. Change of Name

A. Basic Rules 1. In General


ß 16 Common-law rule

A person has a common-law right to assume any name he or she lawfully chooses. n1 In the absence of a statute to the contrary, at common law any person may ordinarily change his or her name at will, without any legal proceedings, merely by simple usage or habit, n2 absent fraud, n3 misrepresentation or an interference with the rights of others. n4 There is nothing in the common law requiring a showing of a compelling need to justify a change of name and any such re-quirement is inconsistent with the common-law principle that names may be changed in the absence of a fraudulent pur-pose. n5 It is recognized that a foolish choice of name may have undesired consequences, but freedom to choose is free-dom to choose foolishly. n6 Thus, if a petitioner for a change of name chooses to adopt a name which subjects the person to contempt, ridicule, and inconvenience, the person has a common-law right to do so. n7 However, while a petitioner has the right at common law to adopt any name as long as fraud or misrepresentation is not involved, once a petitioner seeks court approval, the petition becomes subject to close scrutiny and it becomes the court's responsibility to ensure that the grant of the name change will not mislead, confuse, or deceive others in their dealings with the petitioner. n8

Observation: The common-law and statutory right to change one's name belongs to the individual whose name is being changed, with the limited exception of a petition to change the name of a minor child brought by the child's parent in a dissolution proceeding, n9 and consequently, no one may request a name change for another person without that per-son's express consent. n10

FOOTNOTES:

n1 Application of Ferner, 295 N.J. Super. 409, 685 A.2d 78 (Law Div. 1996).

Related References:Fictitious or assumed name certificate -- By individual. 13B Am. Jur. Legal Forms 2d, Name ß 182:16. Certificate -- Amendment or change or fictitious or assumed name -- By individual. 13B Am. Jur. Legal Forms 2d, Name ß 182:26.

n2 In re Verrill, 40 Mass. App. Ct. 34, 660 N.E.2d 697 (1996); Application of Sakaris by Sakaris, 160 Misc. 2d 657, 610 N.Y.S.2d 1007 (City Civ. Ct. 1993). An Ohio resident may change his name without following statutory procedure so long as he does not do so for a fraudulent purpose and does not infringe the rights of others. Dennis v. Ford Motor Co., 121 Ohio App. 3d 318, 699 N.E.2d 993 (9th Dist. Lorain County 1997).

Related References:Affidavit denying use of alias. 13B Am. Jur. Legal Forms 2d, Name ß 182:55.

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n3 Matter of J.N.H., 659 N.E.2d 644 (Ind. Ct. App. 1995); State v. Hansford, 219 Wis. 2d 226, 580 N.W.2d 171 (1998).

n4 Matter of Miller, 162 Misc. 2d 527, 617 N.Y.S.2d 1024 (City Civ. Ct. 1994).

n5 In re Miller, 218 Va. 939, 243 S.E.2d 464 (1978).


n7 Application of Dengler, 287 N.W.2d 637 (Minn. 1979).

n8 Matter of Rivera, 165 Misc. 2d 307, 627 N.Y.S.2d 241 (City Civ. Ct. 1995).

n9 In re the Marriage of Hayes, 12 S.W.3d 767 (Mo. Ct. App. S.D. 2000). As to statutory regulation, see ß 17.

n10 Warfield v. Warfield, 661 So. 2d 924 (Fla. Dist. Ct. App. 4th Dist. 1995).

REFERENCE: West's Key Number Digest, Names [westkey]20A.L.R. Digest: Name ß 7A.L.R. Index: Change of NameA.L.R. Index: Maiden NameA.L.R. Index: Names13B Am. Jur. Legal Forms 2d, Name ßß 182:16, 182:26, 182:54 to 182:5618A Am. Jur. Pleading and Practice Forms, Name ßß 6 to 10, 13 to 21, 23 to 30, 33 to 38

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ß 17 Statutory regulation

In most jurisdictions, a change of one's name is regulated by statutes which prescribe the proceedings by which such change is to be accomplished. n1 Statutes which set forth procedures to be followed in changing one's name merely pro-vide a codified process to aid the individual's common-law right to adopt another name at will. n2 The statutory method of changing one's name has distinct advantages, as it is speedy and definite, n3 provides a record by which the change of name is definitely and specifically established, n4 and is easily proved, even after the death of all contemporaneous wit-nesses. n5

Practice Guide: Statutory procedures enabling a person to petition for a court order changing his or her name are generally an alternative procedure to the common-law procedure, and such procedures are neither a substitute nor a re-placement for the common law, n6 and conversely, the common-law right to change a name does not preclude the use of a statutory method, as neither method is generally exclusive. n7

A change-of-name proceeding is concerned with a petitioner's legal identity, and not with the various parties' legal rights. n8 No person has an absolute right to a change of name by way of legal process. n9

A name change statute has been held not to apply where the petitioner seeks to change a name to a numeral. n10

FOOTNOTES:


n2 In re Cruchelow, 926 P.2d 833 (Utah 1996).

n3 Matter of Natale, 527 S.W.2d 402 (Mo. Ct. App. 1975); Application of Pirlamarla, 208 N.J. Super. 112, 504 A.2d 1238 (Law Div. 1985).

n4 Matter of Morehead, 10 Kan. App. 2d 625, 706 P.2d 480 (1985). Applications under a statute permitting a person to change his or her name should be encouraged, since statutory process provides protection for both the applicant and the general public by producing a public record to document the name change. In re Cruchelow, 926 P.2d 833 (Utah 1996).

n5 Brown v. Brown, 384 A.2d 632 (D.C. 1977).

Related References:Certificate -- Change of name. 18A Am. Jur. Pleading and Practice Forms, Name ß 29.

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n6 Matter of Morehead, 10 Kan. App. 2d 625, 706 P.2d 480 (1985); Application of Sakaris by Sakaris, 160 Misc. 2d 657, 610 N.Y.S.2d 1007 (City Civ. Ct. 1993).

n7 Torbit v. State, 102 Md. App. 530, 650 A.2d 311 (1994).

n8 Petition of Larson, 295 N.W.2d 733 (S.D. 1980).

n9 In re Verrill, 40 Mass. App. Ct. 34, 660 N.E.2d 697 (1996).

n10 In re Ritchie, 159 Cal. App. 3d 1070, 206 Cal. Rptr. 239 (1st Dist. 1984) (purported name suggested by appellant, "III," failed to qualify as a "name" within meaning of either the common law or the statute); Petition of Dengler, 246 N.W.2d 758 (N.D. 1976).


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ß 18 Prison inmates

Prison inmates generally retain their right to a change of name. n1 In states where inmates are allowed to change names legally, prisons are generally required to recognize only legally changed names. n2 States may, however, lawfully pro-hibit a name change for persons convicted of a felony in view of statute's purpose to protect the legitimate governmental interest of being able to identify persons sought on warrant and detainer and to preserve the criminal history of felons, n3 and such statutes include persons convicted of felonies occurring outside of the state. n4 An inmate denied a name change still retains the common-law right to use a different name. n5

FOOTNOTES:

n1 Matter of Washington, 216 A.D.2d 781, 628 N.Y.S.2d 837 (3d Dep't 1995); Matter of Mees, 465 N.W.2d 172 (N.D. 1991). As to conduct of a petitioner that may create basis for objection to name change, see ß 35.

n2 Malik v. Brown, 71 F.3d 724 (9th Cir. 1995).

n3 In re Verrill, 40 Mass. App. Ct. 34, 660 N.E.2d 697 (1996); In re Dickey, 919 S.W.2d 790 (Tex. App. Texarkana 1996).

n4 In re Dickey, 919 S.W.2d 790 (Tex. App. Texarkana 1996).

n5 In re Verrill, 40 Mass. App. Ct. 34, 660 N.E.2d 697 (1996).


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ß 19 Application or petition; costs

Statutes prescribing the procedure by which a person may change his or her name usually provide for the filing of a cer-tificate, application, or petition to a particular court of record. n1 Under some statutes, the petition must be in writing, signed by the petitioner, and must specify the grounds of the application, the name, date and place of birth, age, and res-idence of the individual whose name is proposed to be changed, and the name which the person proposes to assume, and it must be verified in like manner as a pleading in a court of record. n2 Where a petition for name change must be verified by oath or in a written declaration which attests that under penalty of perjury the facts stated in it are true, a verification of a petition which states that the information contained therein is "true to the best of the affiant's knowledge" is insuffi-cient because it is a qualified, and not positive, declaration. n3

Practice Guide: An order in an independent civil action changing a name, including that of a child, is a "final judg-ment" in a "civil case," within the meaning of a statute providing for the appeal of such an order. n4

An application for a judicial change of name does not entitle the petitioner to poor person's relief and, in view of the common-law right to change one's name at will absent fraud or interference with the rights of others, n5 requiring a city to assume the costs of a statutory name change would contravene the policy underlying poor person's relief. n6

FOOTNOTES:

n1 In re Name Change of Handley, 107 Ohio Misc. 2d 24, 736 N.E.2d 125 (Prob. Ct. 2000). A statute requiring that a verified petition with the name, address, and reasons for the name change be filed with a court, provides the sole method by which a name change for a minor may be accomplished. In Interest of J.K., 922 S.W.2d 220 (Tex. App. San Antonio 1996).

Related References:Application for change of name. 13B Am. Jur. Legal Forms 2d, Name ß 182:54. Checklist -- Matters that should be alleged in petition or application for change of name. 18A Am. Jur. Pleading and Practice Forms, Name ß 6. Petition or application for change of name. 18A Am. Jur. Pleading and Practice Forms, Name ßß 7 to 9, 13 to 21, 33 to 38.

n2 In re Burstein, 69 Misc. 41, 124 N.Y.S. 989 (City Ct. 1910).

Page 35

Related References:Petition or application -- Allegation -- Absence of criminal record. 18A Am. Jur. Pleading and Practice Forms, Name ß 16. Petition or application -- Allegation -- No adjudication as bankrupt. 18A Am. Jur. Pleading and Practice Forms, Name ß 17. Petition or application -- Allegation -- Absence of judgments, liens, and pending actions. 18A Am. Jur. Pleading and Practice Forms, Name ß 18. Petition or application -- Allegation -- Absence of claims, demands, liabilities, and creditors. 18A Am. Jur. Pleading and Practice Forms, Name ß 19. Petition or application -- Allegation -- Notice of intended change of name given by publication. 18A Am. Jur. Pleading and Practice Forms, Name ß 21.

n3 Barton v. Circuit Court of Nineteenth Judicial Circuit, 659 So. 2d 1262 (Fla. Dist. Ct. App. 4th Dist. 1995).

n4 Rowland v. Shurbutt, 259 Va. 305, 525 S.E.2d 917 (2000).

n5 ß 2.

n6 Application of Ellerby, 99 Misc. 2d 691, 416 N.Y.S.2d 968 (City Civ. Ct. 1979).


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ß 20 Notice

A petition for a change of name may be denied where the petitioner fails to comply with a statutory requirement that no-tice of the proposed name change be given. n1 Where a petitioner for a change of name has fully complied with the statu-tory requirements for giving notice, a resident of the county wherein notice is made has constructive notice of the change-of-name hearing. n2

Where a prison inmate's original application for a name change was dismissed, the inmate was not required to publish a second notice of the application in a newspaper of general circulation before a second hearing on remand. Rather, the inmate's initial publication of the application in the proceedings before the remand satisfied the statutory publication re-quirement. n3

FOOTNOTES:

n1 Bruster v. Hopper, 146 Ga. App. 217, 246 S.E.2d 140 (1978).

Related References:Notice of change of name by individual. 13B Am. Jur. Legal Forms 2d, Name ß 182:56. Notice -- Filing of petition for change of adult's name. 18A Am. Jur. Pleading and Practice Forms, Name ß 23. Notice of motion -- To amend petition or application -- Correcting proposed change of name. 18A Am. Jur. Pleading and Practice Forms, Name ß 25. Order to show cause -- Why petition for change of adult's name should not be granted -- Publication of statutory notice. 18A Am. Jur. Pleading and Practice Forms, Name ß 26.

n2 Petition of Larson, 295 N.W.2d 733 (S.D. 1980). As to specific objections raised with respect to petitions for a change of name, see ßß 33 to 39.

n3 In re Hall, 135 Ohio App. 3d 1, 732 N.E.2d 1004 (4th Dist. Ross County 1999).

REFERENCE: West's Key Number Digest, Names [westkey]20A.L.R. Digest: Name ß 7A.L.R. Index: Change of NameA.L.R. Index: Maiden Name

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A.L.R. Index: Names13B Am. Jur. Legal Forms 2d, Name ßß 182:16, 182:26, 182:54 to 182:5618A Am. Jur. Pleading and Practice Forms, Name ßß 6 to 10, 13 to 21, 23 to 30, 33 to 38

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ß 21 Hearing

Before a court denies a request for a change of name under a statute providing that the court must approve the change if it is satisfied that the desired change would be proper and not detrimental to the interests of any other person, it should, n1

or in some states must, n2 conduct an evidentiary hearing. A trial court has the discretion to order a hearing to determine the truthfulness of allegations in a petition for a name change. n3 The reason for requiring the payment of a filing fee and a hearing on an application for a change of name is to protect the public from fraudulent name changes. n4

Practice Guide: In the case where the opportunity for anyone to object at a hearing to a petitioner's change-of-name request stems from a statutory general notice provision, objections will not be heard by way of posthearing means. n5

In some states, a court cannot make an inmate's physical presence at a hearing a condition precedent to a ruling on the inmate's petition for a change of name, as the court can conduct a hearing by telephone or obtain the inmate's testimony at the hearing via deposition, n6 although there is authority elsewhere stating a prison inmate must appear personally. n7

A refusal to waive the filing fee or the requirement of a hearing on an application for a change of name does not result in the denial of an applicant's right to the free exercise of religion, where such a statute applies with equal force to both secularly and religiously motivated name changes and is a proper exercise of the state's police power. n8

FOOTNOTES:

n1 In re Knight, 36 Colo. App. 187, 537 P.2d 1085, 79 A.L.R.3d 559 (1975). An inmate who petitioned to change his name was entitled to a hearing, as a hearing would give the Department of Corrections and law en-forcement agencies notice and an opportunity to be heard on any problems the name change would create. In re Boyd, 627 So. 2d 30 (Fla. Dist. Ct. App. 2d Dist. 1993).

Related References:Notice -- Hearing of petition for change of family's name. 18A Am. Jur. Pleading and Practice Forms, Name ß 10 Notice -- Hearing of petition for change of adult's name. 18A Am. Jur. Pleading and Practice Forms, Name ß 24.

n2 In re Harris, 707 A.2d 225 (Pa. Super. Ct. 1997).

n3 In re Boyd, 627 So. 2d 30 (Fla. Dist. Ct. App. 2d Dist. 1993).

n4 State ex rel. Robinson v. Clark, 91 Ohio App. 3d 627, 632 N.E.2d 1393 (12th Dist. Warren County 1994).

Page 39

n5 Petition of Larson, 295 N.W.2d 733 (S.D. 1980).

n6 Gosby v. Third Judicial Circuit, 586 So. 2d 1056 (Fla. 1991); In re Hall, 135 Ohio App. 3d 1, 732 N.E.2d 1004 (4th Dist. Ross County 1999).

n7 In re Simpkins, 599 N.W.2d 170 (Minn. Ct. App. 1999).

n8 State ex rel. Robinson v. Clark, 91 Ohio App. 3d 627, 632 N.E.2d 1393 (12th Dist. Warren County 1994).


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ß 22 Judicial discretion

The granting of a change of name under a statute is not automatic and name change statutes have ordinarily been held to vest discretion in the trial court. n1 The statutory procedures enabling a person to petition for a court order changing his or her name does not require a ministerial act; rather, such statutes require the performance of a judicial function in that a court must screen each petition and the supporting proof and exercise its discretion responsibly. n2 Consequently, sim-ply because a name change statute presupposes an ex parte application does not mean that an applicant is automatically entitled to the relief sought upon demand. n3 However, even under statutes authorizing a change of name by a judicial proceeding, a court, in exercising its discretion, usually follows the common law, which allows great freedom of change. n4

The general rule is that some substantial reason must exist before a court is justified in denying a petition for a change of name, n5 and unsupported generalizations and speculation do not constitute a cause shown to deny a change of name. n6

Thus, to the extent that judicial discretion is properly used to deny a name change, it must be based upon the underpin-nings of the facts of the case and upon reasonable proof, n7 and when granting or denying a petition for a name change, a court must set forth clear and compelling reasons for its decision. n8 Consequently, a trial court's failure to provide find-ings in authorizing the change of a child's surname has been held to be an abuse of discretion. n9

Observation: Generally speaking, it is reasonable and proper for an individual to change his or her name if the re-quest is not intended to interfere with the rights of others, nor to confuse or mislead the public. n10

FOOTNOTES:

n1 In re Ravitch, 2000 PA Super 179, 754 A.2d 1287 (Pa. Super. Ct. 2000); Ogle v. Circuit Court, Tenth (Now Sixth) Judicial Circuit, 89 S.D. 18, 227 N.W.2d 621 (1975).



n4 Hall v. Hall, 30 Md. App. 214, 351 A.2d 917, 92 A.L.R.3d 1077 (1976).

n5 In re Cruchelow, 926 P.2d 833 (Utah 1996).

n6 Williams v. Racine County Circuit Court, 197 Wis. 2d 841, 541 N.W.2d 514 (Ct. App. 1995). A properly presented request for a name change should not be denied because of an individual judge's preferences or speculation about whether the applicant has made a wise decision. Application of Ferner, 295 N.J. Super. 409, 685 A.2d 78 (Law Div. 1996).

Page 41

n7 Williams v. Racine County Circuit Court, 197 Wis. 2d 841, 541 N.W.2d 514 (Ct. App. 1995). When a trial court denies a facially sufficient petition for a change of name after a telephonic hearing which was not transcribed, the factual basis for the denial should be set forth in the court's order, and a denial based on an unreported evidentiary hearing in the absence of factual findings is improper. Barton v. Circuit Court of Nineteenth Judicial Circuit, 659 So. 2d 1262 (Fla. Dist. Ct. App. 4th Dist. 1995).

n8 Matter of Welfare of C.M.G., 516 N.W.2d 555 (Minn. Ct. App. 1994).

n9 Matter of Welfare of C.M.G., 516 N.W.2d 555 (Minn. Ct. App. 1994).



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ß 23 Scope of discretion

The scope of a trial court's discretion in name change proceedings has been held to be broad, and a court is duty bound to examine all the facts, including the reasons expressed for the change and the name sought to be approved. n1 Under this approach, the court's discretion is to be exercised in such a way as to comport with good sense, common decency and fairness to all concerned and to the public. n2 Other courts view the scope of this discretion as narrow, n3 and state that upon a petition for a name change, the trial court's only duty is to determine that no fraudulent intent is involved, al-though this rule is modified to some extent where an individual seeking a name change is a minor. n4 Under the com-mon-law standard, a showing of fraud or misrepresentation akin to fraud is necessary in order for the court to deny a change of name, n5 and if the court determines that the change of name will foster fraud or other illegality, it is not only free to withhold its imprimatur and deny the petition for the change of name, it is bound to do so. n6

Observation: A primary reason for denying a requested name change application is the potential for fraud, particu-larly where it could lead to financial abuse or misrepresentations in society. n7

One type of statute governing an adult's petition for a name change requires a petition to be based on reasonable and proper cause for the name change, and allows the court to determine in its discretion the sufficiency of the reasons set forth to support the application. n8 Another type of statute governing an adult's petition for a change of name authorizes the court to grant the petition unless the court determines that there is a good and sufficient reason to deny the change of name and it is within the court's discretion to determine what constitutes good and sufficient reason to deny a petition. n9

FOOTNOTES:

n1 Application of Sakaris by Sakaris, 160 Misc. 2d 657, 610 N.Y.S.2d 1007 (City Civ. Ct. 1993).

n2 In re Ravitch, 2000 PA Super 179, 754 A.2d 1287 (Pa. Super. Ct. 2000).

n3 In re the Marriage of Hayes, 12 S.W.3d 767 (Mo. Ct. App. S.D. 2000).

n4 Matter of J.N.H., 659 N.E.2d 644 (Ind. Ct. App. 1995). In most circumstances, a petition to change one's name should generally be granted unless sought for a wrongful or fraudulent purpose. In re Cruchelow, 926 P.2d 833 (Utah 1996).


n6 Matter of Linda Ann A., 126 Misc. 2d 43, 480 N.Y.S.2d 996 (Sup 1984).

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n7 Application of Sakaris by Sakaris, 160 Misc. 2d 657, 610 N.Y.S.2d 1007 (City Civ. Ct. 1993); In re Name Change of Handley, 107 Ohio Misc. 2d 24, 736 N.E.2d 125 (Prob. Ct. 2000).

n8 Moskowitz v. Moskowitz, 118 N.H. 199, 385 A.2d 120 (1978); Petition of Dengler, 246 N.W.2d 758 (N.D. 1976); In re Name Change of Handley, 107 Ohio Misc. 2d 24, 736 N.E.2d 125 (Prob. Ct. 2000).

Related References:Order -- Changing adult's name -- After uncontested hearing. 18A Am. Jur. Pleading and Practice Forms, Name ß 27.

n9 In re Knight, 36 Colo. App. 187, 537 P.2d 1085, 79 A.L.R.3d 559 (1975); In re Reed, 584 S.W.2d 103 (Mo. Ct. App. E.D. 1979); Williams v. Racine County Circuit Court, 197 Wis. 2d 841, 541 N.W.2d 514 (Ct. App. 1995).


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ß 24 Burden of proof

The general rule is that the party seeking a name change bears the burden of proof. n1 Under a change-of-name statute re-quiring a petition to be based on good and sufficient reason for the proposed change, the burden of proof rests with the petitioner to prove that there is more than just a whim or personal desire to assume another name. n2 Where a statute au-thorizes the court to grant the petition unless the court determines that there is a good and sufficient reason to deny the change of name, the burden of proof rests with either the court or interested third parties to prove that there exists a law-ful objection which overrides the petitioner's right to a name change. n3

FOOTNOTES:

n1 In re Brast, 32 Conn. Supp. 1, 334 A.2d 483 (Super. Ct. 1974); Girten v. Andreu, 698 So. 2d 886 (Fla. Dist. Ct. App. 3d Dist. 1997).

n2 Moskowitz v. Moskowitz, 118 N.H. 199, 385 A.2d 120 (1978).

n3 Moskowitz v. Moskowitz, 118 N.H. 199, 385 A.2d 120 (1978).


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ß 25 Effect of change or denial

Statutes relating to changing one's name sometimes provide that on and after the day specified in the order of the court for the change to take effect, the applicant must be known by the new name and no other. n1 It has been said that such a statutory provision may well have the effect of barring a person who has acquired a name by judicial decree from ac-quiring another name without resorting to the courts. n2

Although a petitioner is denied a court order changing his or her name, such a petitioner continues to have the common-law right to use whatever moniker he or she chooses for personal or professional purposes. n3 An individual's decision to use a name other than the person's birth name, whether the decision rests on religious, marital, or other personal consid-erations, does not imply an intent to set aside the birth name, or the identity associated with that name. n4

FOOTNOTES:

n1 Smith v. United States Casualty Co., 197 N.Y. 420, 90 N.E. 947 (1910).

n2 Smith v. United States Casualty Co., 197 N.Y. 420, 90 N.E. 947 (1910). Notice to public -- Of change of adult's name -- By individual. 18A Am. Jur. Pleading and Practice Forms, Name ß 30.


n4 Abdul-Jabbar v. General Motors Corp., 85 F.3d 407 (9th Cir. 1996).


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A. Basic Rules 2. Factors Affecting Court's Decision

a. Preferred or Implied Reasons


ß 26 Religion

Reasons sufficient to support a petition for an adult's name change include the wish to assume a name which reflects a new religious affiliation. n1 A religion-inspired desire to change one's name is not an unworthy motive or trivial, capri-cious or vainglorious. n2 Courts have rejected religious reasons in support of a proposed change of name. For example, with respect to names sought to be adopted to reflect a religious affiliation, the use of a single Sanskrit name requested by one petitioner would be a retrogression to antiquity, one court stated. n3

FOOTNOTES:

n1 Isom v. Circuit Court of Tenth Judicial Circuit, 437 So. 2d 732 (Fla. Dist. Ct. App. 2d Dist. 1983); Application of Jackson, 177 N.J. Su-per. 591, 427 A.2d 139 (Law Div. 1981).

n2 Petition of Alexander, 260 Pa. Super. 371, 394 A.2d 597 (1978).

Related References:Circumstances justifying grant or denial of petition to change adult's name, 79 A.L.R. 3d 562 ß 4[b].

n3 Application of Douglas, 60 Misc. 2d 1057, 304 N.Y.S.2d 558 (Sup 1969).

Related References:Circumstances justifying grant or denial of petition to change adult's name, 79 A.L.R. 3d 562 ß 4[a].


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ß 27 Prison inmates

A religious motivation on the part of a prisoner seeking a name change does not create an affirmative right to the name change on the theories of equal protection or the right to religious freedom. n1 Accordingly, a statute prohibiting an in-mate, a convicted felon, from changing his or her name has a logical connection to a legitimate governmental interest, and thus does not violate the inmate's free exercise of religion, when such a statute is enacted for security reasons and is intended to maintain adequate identification records and to preserve the criminal history of convicted felons. n2 How-ever, an inmate's application for a name change for the purpose of conforming to the practice of the Islamic faith should have been granted, despite the trial court's concern that the name change would result in record-keeping problems for various governmental agencies, when the state's Attorney-General had submitted a letter indicating that the Department of Correctional Services did not oppose the application, and there was no demonstrable reason not to do so. n3

Once an inmate has legally changed the inmate's name to a Muslim name for religious purposes, a state corrections de-partment's refusal to follow a dual-name policy for an inmate's identification card and related services violates the in-mate's constitutional right to the free exercise of religion. n4

FOOTNOTES:

n1 Williams v. Racine County Circuit Court, 197 Wis. 2d 841, 541 N.W.2d 514 (Ct. App. 1995).

n2 In re Redding, 218 Ga. App. 376, 461 S.E.2d 558 (1995) (denial found proper); Whitmore v. State, 752 So. 2d 365 (La. Ct. App. 1st Cir. 2000).

n3 In re Waters, 264 A.D.2d 910, 695 N.Y.S.2d 428 (3d Dep't 1999).

n4 Hakim v. Hicks, 223 F.3d 1244 (11th Cir. 2000).


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ß 28 National origin or ethnic background

The apparent desire to disguise the national origin or ethnic background of the petitioner is sometimes a sufficient rea-son to support a proposed change of name, n1 although such a motive has raised the question of the accuracy of the peti-tioner's statement that the change was not intended to deceive. n2 Petitions for a change of name have been denied where the desire was to abandon one ethnic name for another, as where a Jewish name was sought to be changed to a Protes-tant-sounding name, n3 or to an historically distinguished Irish surname, n4 or where an American professor of black stud-ies sought to change his name to a traditional African name. n5 Similarly, where it appeared that a petitioner wished to enhance the surname reflecting the petitioner's Slavic national origin by adding to it a prefix indicative of Germanic no-bility, the petition was refused. n6 To permit such a change, one court held, would allow the applicant to travel under false color, a disadvantage to the applicant and to those with whom the applicant dealt. n7

FOOTNOTES:

n1 Matter of Novogorodskaya, 104 Misc. 2d 1006, 429 N.Y.S.2d 387 (City Civ. Ct. 1980). Concealment of national origin has been rejected as an objection to a petition for a change of name, see ß 39.


n2 In re Kastenbaum, 44 N.Y.S.2d 2 (Sup 1943).

n3 Applications of Greenfield, 66 Misc. 2d 733, 322 N.Y.S.2d 276 (City Civ. Ct. 1970).

n4 Petition of Cohen, 163 Misc. 795, 297 N.Y.S. 905 (City Ct. 1936).

n5 Application of Middleton, 60 Misc. 2d 1056, 304 N.Y.S.2d 145 (City Civ. Ct. 1969).

n6 Application of Jama, 51 Misc. 2d 9, 272 N.Y.S.2d 677 (City Civ. Ct. 1966).

n7 Cohen's Petition for Change of Name, 4 Conn. Supp. 342, 1936 WL 1359 (Super. Ct. 1936).

Related References:

Page 49

Circumstances justifying grant or denial of petition to change adult's name, 79 A.L.R. 3d 562 ß 5[a].


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ß 29 Sanction of previously adopted name

The desire of a petitioner to change his or her legal name to a name which has already been effectively adopted through long and conspicuous use has been viewed as a sufficient reason to warrant a judicial change of name. n1 Notwithstand-ing that a petitioner has effectively changed his or her name under the common law, n2 a court may deny a petition to legally effect the change, reasoning that, in view of the petitioner's right to continue to use the name already adopted, the wish to legally adopt the name is an insufficient reason for the court to grant such a petition. n3

FOOTNOTES:

n1 Petition of Buyarsky, 322 Mass. 335, 77 N.E.2d 216 (1948).


n2 ß 2.

n3 In re Brast, 32 Conn. Supp. 1, 334 A.2d 483 (Super. Ct. 1974); Application of Douglas, 60 Misc. 2d 1057, 304 N.Y.S.2d 558 (Sup 1969).


SUPPLEMENT:

CasesPetitioner had the right to change his name to "Santa Claus," as there was no sufficient likelihood of confusion, misun-derstanding, substantial mischief, or concern that some would be unwilling to sue a person with such a name; petitioner conducted charitable and business activities in the Santa Claus persona, and the name change would allow him to better conduct those activities, and he already told others he was Santa Claus. U.C.A.1953, 42-1-1, 42-1-2. In re Porter, 2001 UT 70, 31 P.3d 519 (Utah 2001).

REFERENCE: West's Key Number Digest, Names [westkey]20A.L.R. Digest: Name ß 7

Page 51

A.L.R. Index: Change of NameA.L.R. Index: Maiden NameA.L.R. Index: Names13B Am. Jur. Legal Forms 2d, Name ßß 182:16, 182:26, 182:54 to 182:5618A Am. Jur. Pleading and Practice Forms, Name ßß 6 to 10, 13 to 21, 23 to 30, 33 to 38

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ß 30 Ease of spelling and pronunciation

The wish to assume a name easier to spell and pronounce has been rejected as silly and capricious. n1 However, it has been held lawful for an alien to change his or her name to one easier for native-born Americans to pronounce at the time the alien files a petition for naturalization. n2

FOOTNOTES:

n1 Application of Filoramo, 40 Misc. 2d 598, 243 N.Y.S.2d 339 (City Civ. Ct. 1963).


n2 Application of Chan, 426 F. Supp. 680 (S.D.N.Y. 1976). For discussion of alien status of a petitioner as an objection to a change of name, see ß 37.

Related References:Petition or application -- For change of adult's names -- After naturalization. 18A Am. Jur. Pleading and Practice Forms, Name ß 14.


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ß 31 Change of name to conform to a change of gender

The desire of a petitioner for a change of name to conform to a change of gender has been sufficient to support a name change. n1 A person has been entitled to change his name from a traditional "male" into a "female" name with the caveat that the person could not use the grant of the name change as evidence that the sex of that individual had in fact been changed. n2 Absent fraud or other improper purpose, the fact that a name change applicant has chosen a "female" name does not warrant a denial of an application, whether a transsexual applicant has undergone or intends to undergo a sex change through surgery, whether he has received hormonal injections to induce physical change, whether he is a trans-vestite, or whether he simply wants to change from a traditional "male" first name to a traditionally "female" name. n3 However, some courts have required that a transsexual petitioning for a name change demonstrate that he or she is per-manently committed to living as a member of the opposite sex. n4 The totality of each case's attendant circumstances must be evaluated in order to discern whether a transsexual petitioning for a name change is irretrievably committed to living as a person of opposite gender. n5 Accordingly, a petitioner failed to set forth sufficient facts to warrant the grant of an application to change the petitioner's first name from an obviously male name to an obviously female name, where he failed to submit medical and psychiatric evidence as to whether he was a transvestite or transsexual and, if a trans-sexual, whether he had undergone a sex change operation. n6

FOOTNOTES:


Related References:Circumstances justifying grant or denial of petition to change adult's name, 79 A.L.R. 3d 562 ß 6.

n2 Matter of Rivera, 165 Misc. 2d 307, 627 N.Y.S.2d 241 (City Civ. Ct. 1995).

n3 Matter of Eck, 245 N.J. Super. 220, 584 A.2d 859 (App. Div. 1991).

n4 Matter of Anonymous, 153 Misc. 2d 893, 582 N.Y.S.2d 941 (City Civ. Ct. 1992); In re Harris, 707 A.2d 225 (Pa. Super. Ct. 1997).


n6 Application of Anonymous, 155 Misc. 2d 241, 587 N.Y.S.2d 548 (City Civ. Ct. 1992).

REFERENCE: West's Key Number Digest, Names [westkey]20

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A.L.R. Digest: Name ß 7A.L.R. Index: Change of NameA.L.R. Index: Maiden NameA.L.R. Index: Names13B Am. Jur. Legal Forms 2d, Name ßß 182:16, 182:26, 182:54 to 182:5618A Am. Jur. Pleading and Practice Forms, Name ßß 6 to 10, 13 to 21, 23 to 30, 33 to 38

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ß 32 Maintenance of legal action

The desire to effect a change of name so as to maintain a legal action in that name is not a sufficient reason to warrant a change of name under a statute requiring that the change be in the interest or to the benefit of the petitioner. n1

FOOTNOTES:

n1 Appeal of Evetts, 392 S.W.2d 781 (Tex. Civ. App. San Antonio 1965), writ refused, (Oct. 6, 1965).


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b. Objections


ß 33 Prejudice to third parties

Prejudice to the interests of third parties has been raised as an objection to a petition for a change of name and consid-ered by the courts in determining whether to grant a petition for a change of name. n1 Thus, prejudice to third parties has been found in an entertainer's wish to assume the name, as closely as legally possible, of a prominent celebrity and thereby "cash in" on a third party's reputation. n2 In another case, an individual who wore a full white beard and wire glasses, and who portrayed Santa Claus at various events, failed to establish reasonable and proper cause sufficient to allow the grant of his application to legally change his name to "Santa Robert Claus," as while no fraudulent intent ex-isted, allowing the name change would violate public policy, as the individual sought to assume the identity of an icon of culture, in which the public had a proprietary right and interest, and approving the change would be very misleading to children in the community. n3 However, a general concern for possible detriment to society occasioned by persons who seek to use the law to add recognition to their legal name is not a valid objection to a change of name where no prima facie evidence of harm to a third party is presented. n4 Finally, in some cases, it is recognized that while a court may inquire into the potential detriment to third parties in change-of-name proceedings, doing so is not exclusively within its province. n5

FOOTNOTES:

n1 Application of Halligan, 46 A.D.2d 170, 361 N.Y.S.2d 458 (4th Dep't 1974); In re Knight, 36 Colo. App. 187, 537 P.2d 1085, 79 A.L.R.3d 559 (1975).

Related References:Circumstances justifying grant or denial of petition to change adult's name, 79 A.L.R. 3d 562 ß 10[a, b]. Notice -- Hearing of petition for change of adult's name. 18A Am. Jur. Pleading and Practice Forms, Name ß 24.

n2 Weingand v. Lorre, 231 Cal. App. 2d 289, 41 Cal. Rptr. 778 (2d Dist. 1964).


n4 In re Reed, 584 S.W.2d 103 (Mo. Ct. App. E.D. 1979).

n5 Brown v. Wyrick, 626 S.W.2d 674 (Mo. Ct. App. W.D. 1981).


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A.L.R. Digest: Name ß 7A.L.R. Index: Change of NameA.L.R. Index: Maiden NameA.L.R. Index: Names13B Am. Jur. Legal Forms 2d, Name ßß 182:16, 182:26, 182:54 to 182:5618A Am. Jur. Pleading and Practice Forms, Name ßß 6 to 10, 13 to 21, 23 to 30, 33 to 38

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b. Objections


ß 34 Family members

The unfairness to a wife and her children that would result upon the granting of a petition by her husband to change the name under which they had acquired standing in the family, the local schools, and the community is an example of prej-udice to third parties raised in objection to a change of name. n1 On the other hand, inconvenience to third parties, n2 hurt feelings of the family, n3 or pride in a distinguished family name do not constitute lawful objections. n4

FOOTNOTES:

n1 In re Taminosian, 97 Neb. 514, 150 N.W. 824 (1915).

Related References:Petition or application -- By head of family -- For change of family's surname. 18A Am. Jur. Pleading and Practice Forms, Name ß 7.


n3 Petition of Rusconi, 341 Mass. 167, 167 N.E.2d 847 (1960).

n4 Petition of Falcucci, 355 Pa. 588, 50 A.2d 200 (1947).

Related References:Circumstances justifying grant or denial of petition to change adult's name, 79 A.L.R. 3d 562 ß 10[b]. Order -- Changing adult's name -- After hearing objections. 18A Am. Jur. Pleading and Practice Forms, Name ß 28.


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b. Objections


ß 35 Conduct of petitioner

Such matters as illegal conduct on the part of the petitioner have been raised in objection to petitions for change of name. n1 Thus, a court will not approve a change of name where such could be construed to approve or facilitate an adul-terous relationship, n2 or where the petitioner seeks to adopt a new name for nefarious reasons and to conceal a tainted reputation of unconscientious, bad faith conduct. n3 Applications for a change of name have been denied to persons with extensive criminal records based upon the potential for confusion in the criminal justice system and the potential for the person to disassociate him or herself from his or her prior criminal record. n4

FOOTNOTES:

n1 Application of B., 81 Misc. 2d 284, 366 N.Y.S.2d 98 (County Ct. 1975).

Related References:Circumstances justifying grant or denial of petition to change adult's name, 79 A.L.R. 3d 562 ß 11[a, b].

n2 Matter of Linda Ann A., 126 Misc. 2d 43, 480 N.Y.S.2d 996 (Sup 1984).

n3 Wilson v. Thomason, 406 So. 2d 871 (Ala. 1981).

n4 Application of Mendelson, 151 Misc. 2d 367, 572 N.Y.S.2d 1014 (City Civ. Ct. 1991).


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b. Objections


ß 36 Policy of court

A policy established by a court, unauthorized by the statutes pertaining to change-of-name petitions, does not constitute a lawful objection to a petition filed in accordance with statute, as where a local court imposes a requirement of one year's residence in the state as a prerequisite to consideration of a petition for a change of name. n1

FOOTNOTES:

n1 Application of Smulevitz, 101 Cal. App. 2d 70, 224 P.2d 911 (2d Dist. 1950).



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b. Objections


ß 37 Alien status

The alien status of a petitioner has been raised in objection to petitions for change of name, n1 notwithstanding the gener-ally recognized view that any person, including an alien, n2 may ordinarily change his name at will, without any legal proceedings, merely by adopting another name. n3 A statute which provides in pertinent part that any person may insti-tute an action for authority to assume another name is facially broad enough to confer upon a noncitizen a statutory au-thorization to seek a name change, since if the legislature had intended to limit the class of persons permitted to invoke the statute, it could and would have employed language which clearly expressed that intent. n4

The fact that a petitioner is a resident of another country in whose courts the party has applied for a name change, n5 or is an alien who seeks to be rid of a stigmatizing surname, n6 does not constitute a lawful objection to the change of name.

FOOTNOTES:

n1 Matter of Novogorodskaya, 104 Misc. 2d 1006, 429 N.Y.S.2d 387 (City Civ. Ct. 1980).


n2 Application of Pirlamarla, 208 N.J. Super. 112, 504 A.2d 1238 (Law Div. 1985); Matter of Novogorodskaya, 104 Misc. 2d 1006, 429 N.Y.S.2d 387 (City Civ. Ct. 1980).

n3 ß 2.

n4 Application of Pirlamarla, 208 N.J. Super. 112, 504 A.2d 1238 (Law Div. 1985).

n5 Matter of Lipschutz, 178 Misc. 113, 32 N.Y.S.2d 264 (Sup 1941).

n6 Matter of Novogorodskaya, 104 Misc. 2d 1006, 429 N.Y.S.2d 387 (City Civ. Ct. 1980).

REFERENCE: West's Key Number Digest, Names [westkey]20A.L.R. Digest: Name ß 7A.L.R. Index: Change of NameA.L.R. Index: Maiden NameA.L.R. Index: Names

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13B Am. Jur. Legal Forms 2d, Name ßß 182:16, 182:26, 182:54 to 182:5618A Am. Jur. Pleading and Practice Forms, Name ßß 6 to 10, 13 to 21, 23 to 30, 33 to 38

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b. Objections


ß 38 Record-keeping concerns

Objections based upon confusion and record-keeping problems attendant upon a change of name have warranted denial of a change of name. n1 For example, a petitioner was not entitled to change her given name and surname to a sole name where the use of the single name was not reasonable when it would create confusion in identifying different people, cause disruption of official and business records and wreak havoc in an economy largely dependent on the credit of eas-ily identifiable persons. n2 However, another applicant was entitled to legally change her full name to a single name, where the applicant did not harbor any fraudulent or other unlawful purposes, and the state's computer programmers and record-keepers were capable of adjusting their systems to accommodate unusual names. n3

FOOTNOTES:

n1 Malone v. Sullivan, 124 Ariz. 469, 605 P.2d 447 (1980); In re Ritchie, 159 Cal. App. 3d 1070, 206 Cal. Rptr. 239 (1st Dist. 1984).


n3 Application of Ferner, 295 N.J. Super. 409, 685 A.2d 78 (Law Div. 1996).


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b. Objections


ß 39 Other objections

A court has the inherent authority to withhold judicial approval of a change of name, even under a statute which pro-vides that the court shall grant such an application unless it finds an intent to defraud or mislead, where the name the pe-titioner chooses is racist, obscene, or otherwise likely to provoke violence, arouse passions, or inflame hatred. n1 Like-wise, a court may properly exercise its wide discretion to refuse a requested name if the name is bizarre or unduly lengthy or difficult to pronounce or possessive of a ridiculous or offensive connotation. n2 However, the fact that a name change results in some confusion alone is not a sufficient reason to deny an application. n3

The fact that an applicant for a change of name has been discharged in bankruptcy and subsequently has not paid the debts discharged in the bankruptcy proceeding is not a sufficient reason to deny the application. n4

The possibility that a judicial change of name would imply a conferring of a title of nobility, royalty, n5 or superior rank,

n6 has been successfully raised in objection to petitions for change of name.

FOOTNOTES:

n1 Application of Dengler, 287 N.W.2d 637 (Minn. 1979). An African-American applicant's common-law right to use whatever name he chose did not include the statutory right to require the state to participate in the social experiment of changing his name to include a racial epithet which was universally recognized as offensive. Lee v. Superior Court, 9 Cal. App. 4th 510, 11 Cal. Rptr. 2d 763 (2d Dist. 1992).

n2 Application of Ferner, 295 N.J. Super. 409, 685 A.2d 78 (Law Div. 1996); In re Ravitch, 2000 PA Super 179, 754 A.2d 1287 (Pa. Super. Ct. 2000).


n4 Application of Stempler, 110 Misc. 2d 174, 441 N.Y.S.2d 800 (Sup 1981).

Related References:Petition or application -- Allegation -- No adjudication as bankrupt. 18A Am. Jur. Pleading and Practice Forms, Name ß 17. Petition or application -- Allegation -- Absence of claims, demands, liabilities, and creditors. 18A Am. Jur. Pleading and Practice Forms, Name ß 19.

Page 66

n5 Application of Jama, 51 Misc. 2d 9, 272 N.Y.S.2d 677 (City Civ. Ct. 1966).


n6 Application of Thompson, 82 Misc. 2d 460, 369 N.Y.S.2d 278 (City Civ. Ct. 1975).

SUPPLEMENT:

CasesA substantial reason to deny a petition to change a name may exist when there is factual proof of an unworthy motive, the possibility of fraud on the public, or the choice of a name that is bizarre, unduly lengthy, ridiculous, or offensive to common decency and good taste. U.C.A.1953, 42-1-2. In re Porter, 2001 UT 70, 31 P.3d 519 (Utah 2001).


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ß 40 In general

A woman, like a man, may change her name at will, without resorting to legal proceedings, provided that this is done for an honest purpose. n1 Under statutes recognizing the common-law right, married women are free to adopt another name by the common-law method, if this right has not been invalidated by constitutional or statutory mandate and if the common-law right was not limited to males. n2 Thus, where the common law permits an adult to change his or her name without leave of court simply by adopting a new name and utilizing it in the ordinary course of daily living, and where a name-change statute, under which the petitioner seeks change, is remedial in nature and supplements the common law, a married woman may institute an action to assume the surname of her husband under such a statute. n3 A court may not deny a married woman a change of name on grounds other than those specified in statute, or at common law, in lieu of statute, on grounds which lack evidentiary support. n4

FOOTNOTES:

n1 Secretary of Com. v. City Clerk of Lowell, 373 Mass. 178, 366 N.E.2d 717 (1977). As to the common-law right of a person to freely adopt any name absent a fraudulent purpose, see ß 2. As to a married woman's right to maintain her maiden name, see ß 9.

Related References:Application for change of name. 13B Am. Jur. Legal Forms 2d, Name ß 182:54. Petition or application -- For change of name. 18A Am. Jur. Pleading and Practice Forms, Name ßß 7 to 9, 13 to 21, 33 to 36.

n2 Matter of Natale, 527 S.W.2d 402 (Mo. Ct. App. 1975).

n3 Application of Pirlamarla, 208 N.J. Super. 112, 504 A.2d 1238 (Law Div. 1985).

n4 Matter of Natale, 527 S.W.2d 402 (Mo. Ct. App. 1975).

REFERENCE: West's Key Number Digest, Names [westkey]20A.L.R. Digest: Name ß 7A.L.R. Index: Change of NameA.L.R. Index: Maiden NameA.L.R. Index: Names13B Am. Jur. Legal Forms 2d, Name ß 182:54

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18A Am. Jur. Pleading and Practice Forms, Name, Forms 7 to 9, 13 to 21, 33 to 36

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ß 41 Change incident to dissolution of marriage

Absent injury to the rights of others, there appears to be no reason why a woman's failure to assert the right to use her maiden name upon her marriage should prevent her from doing so at the time of her divorce or thereafter, n1 so long as she does not do so for criminal or fraudulent purposes. n2 A woman whose marriage has been dissolved, by divorce or annulment, should have an absolute right, absent fraudulent intent, to resume her former name or adopt a new name, re-gardless of whether there are living issue from the marriage, n3 with or without a court order. n4

Practice Guide: The dissolution of a marriage by divorce does not form a basis for injunctive relief on behalf of a former husband to prevent his former wife from using a combination of her maiden name and his surname, in view of the generally acknowledged acceptability of the use of the husband's surname by his former spouse and the problems that could result from the unwarranted judicial rejection of that custom. n5

FOOTNOTES:

n1 Petition of Hooper, 436 So. 2d 401 (Fla. Dist. Ct. App. 2d Dist. 1983); Piotrowski v. Piotrowski, 71 Mich. App. 213, 247 N.W.2d 354 (1976).

n2 Brown v. Brown, 384 A.2d 632 (D.C. 1977).

n3 Thomas v. Thomas, 100 Ill. App. 3d 1080, 56 Ill. Dec. 604, 427 N.E.2d 1009 (1st Dist. 1981) (by implication); In re Harris, 160 W. Va. 422, 236 S.E.2d 426 (1977).

N4 Secretary of Com. v. City Clerk of Lowell, 373 Mass. 178, 366 N.E.2d 717 (1977).

n5 Welcker v. Welcker, 342 So. 2d 251 (La. Ct. App. 4th Cir. 1977), writ denied, 343 So. 2d 1077 (La. 1977).

REFERENCE: West's Key Number Digest, Names [westkey]20A.L.R. Digest: Name ß 7A.L.R. Index: Change of NameA.L.R. Index: Maiden NameA.L.R. Index: Names13B Am. Jur. Legal Forms 2d, Name ß 182:5418A Am. Jur. Pleading and Practice Forms, Name, Forms 7 to 9, 13 to 21, 33 to 36

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ß 42 Effect and applicability of dissolution statutes; judicial discretion

A statute which permits a wife, upon dissolution of marriage, to resume her maiden name or the name of a living or de-ceased former husband, acknowledges the custom that a wife generally assumes her husband's surname at marriage and that she may wish to resume a former name after a dissolution of the marriage. n1 Such a statute merely recognizes that, by marriage, a wife may have effected a common-law change in her name through usage and is applicable only if the married woman has, in fact, adopted her husband's name. n2 Whether a married woman has changed her name within the context of a particular statute is a question of fact to be determined on a case-by-case basis. n3

A statute which provides that upon the request of a wife whose marriage is dissolved or declared invalid, "the court shall order" her maiden or former name restored, is a statute in aid of the common law, n4 and does not leave the matter to the court's discretion. n5 Thus, it is an abuse of discretion to deny a woman, who requests at the time of divorce, the restoration of her prenuptial name, absent any illegal or immoral purpose. n6 The use of the word "may" in a statute au-thorizing the court to grant a change of name to a woman upon a decree of divorce indicates that the court is empowered to decree a name restoration, with the only restriction being the common-law one, that the change not be with any fraud-ulent or evil intent. n7

FOOTNOTES:

n1 Malone v. Sullivan, 124 Ariz. 469, 605 P.2d 447 (1980); Thomas v. Thomas, 100 Ill. App. 3d 1080, 56 Ill. Dec. 604, 427 N.E.2d 1009 (1st Dist. 1981).


n3 Ball v. Brown, 450 F. Supp. 4 (N.D. Ohio 1977).

n4 Malone v. Sullivan, 124 Ariz. 469, 605 P.2d 447 (1980); Thomas v. Thomas, 100 Ill. App. 3d 1080, 56 Ill. Dec. 604, 427 N.E.2d 1009 (1st Dist. 1981).

n5 Thomas v. Thomas, 100 Ill. App. 3d 1080, 56 Ill. Dec. 604, 427 N.E.2d 1009 (1st Dist. 1981).

n6 Klein v. Klein, 36 Md. App. 177, 373 A.2d 86 (1977).

n7 Piotrowski v. Piotrowski, 71 Mich. App. 213, 247 N.W.2d 354 (1976).

REFERENCE: West's Key Number Digest, Names [westkey]20A.L.R. Digest: Name ß 7A.L.R. Index: Change of NameA.L.R. Index: Maiden Name

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A.L.R. Index: Names13B Am. Jur. Legal Forms 2d, Name ß 182:5418A Am. Jur. Pleading and Practice Forms, Name, Forms 7 to 9, 13 to 21, 33 to 36

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C. Minor's Name 1. In General


ß 43 Right of child to change own name

A minor, on the minor's own initiative, may exercise the common-law right to a change of name, without any legal for-mality, n1 by public declaration. n2 The right to change one's name is not encumbered by the ordinary disabilities gener-ally attendant upon minority, n3 but, in order for a minor to effectuate the common-law change of name, the minor must be of sufficient age and maturity to make an intelligent choice. n4 Thus, in the absence of any statutory language to the contrary, a minor may file a petition to obtain a name change and there is no legal impediment to a grant of the re-quested change in view of the common law which recognizes the right of any person, including a minor, to a change of name so long as no fraud is intended. n5 When a minor seeks a name change, the issues of fraud, deceit, misrepresenta-tion and protection of the public are less relevant factors than when an adult applies for a change of name. n6 Nonethe-less, courts are reluctant to grant a very youthful minor's change-of-name petition due to an interest in preserving the custom of having the child bear the paternal surname and an interest in maintaining the relationship between the oppos-ing parent and the child. n7

Caution: In some states, separate procedures and standards apply for name changes by minors under age of 14. n8

FOOTNOTES:

n1 In re Staros, 280 N.W.2d 409 (Iowa 1979).

n2 Burke v. Hammonds, 586 S.W.2d 307 (Ky. Ct. App. 1979).


n4 Laks v. Laks, 25 Ariz. App. 58, 540 P.2d 1277 (Div. 2 1975).

n5 Matter of Morehead, 10 Kan. App. 2d 625, 706 P.2d 480 (1985). As to the common-law right, generally, see ß 2.

Related References:Petition or application -- For change of minor's given name -- By minor. 18A Am. Jur. Pleading and Practice Forms, Name ß 36.

n6 Matter of Adoption of J.O.T., 120 Misc. 2d 817, 466 N.Y.S.2d 636 (Fam. Ct. 1983).

n7 Petition of Christjohn, 286 Pa. Super. 112, 428 A.2d 597 (1981).

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n8 Williams v. Racine County Circuit Court, 197 Wis. 2d 841, 541 N.W.2d 514 (Ct. App. 1995).

REFERENCE: West's Key Number Digest, Names [westkey]20A.L.R. Digest: Name ß 7A.L.R. Index: Change of NameA.L.R. Index: Names18A Am. Jur. Pleading and Practice Forms, Name ßß 23 to 43, 45

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ß 44 Rights of parents to have child's name changed; statutory regulation

Statutes providing for change-of-name proceedings sometimes stipulate that where the change of a minor's name is sought, both parents, if surviving, must join in the petition, and where this is so, the consent of both parents is a neces-sary prerequisite to the change. n1 Where a mother is a child's only legal parent, a purported father's consent to the child's name change is not required. n2

When one parent seeks to change the surname of a child, the other parent has standing to object. n3 However, such statutes have been held not to apply in some circumstances, such as when the parent opposing the change has been guilty of gross misconduct, n4 the child was born out of wedlock, n5 during the pendency of a separation action, n6 or an action for divorce. n7

On the other hand, statutes sometimes provide that a single parent, upon giving proper notice to the other, may petition for a change of name of their minor child and, under such a statute, the consent of both parents is not essential. n8 In some states, however, a noncustodial parent is not authorized to bring a petition to change a child's name under the statute governing name changes. n9

Practice Guide: A minor child, and not the child's mother, must institute an action for a change of name through an appointed guardian ad litem, under a statute authorizing a court in its discretion to grant a petition for a change of name upon application of "any person" desirous of such modification. n10

FOOTNOTES:

n1 In re Petras, 123 Misc. 2d 665, 475 N.Y.S.2d 198 (City Civ. Ct. 1984). A court could not change the last name of a child from that of the natural father who was divorced from the natural mother, to correspond with the last name of the natural mother's second husband, without the consent of the natural father. Application of J.S.S., 1995 OK CIV APP 47, 895 P.2d 748 (Okla. Ct. App. Div. 1 1995).

Related References:Rights and remedies of parents inter se with respect to the names of their children, 40 A.L.R. 5th 697 ß 3. Affidavit -- Parent's consent to change name. 18A Am. Jur. Pleading and Practice Forms, Name ß 40.

n2 Matter of J.N.H., 659 N.E.2d 644 (Ind. Ct. App. 1995).

n3 Application of Saxton, 309 N.W.2d 298 (Minn. 1981).

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A child's noncustodial natural father has standing to contest a name-change petition. In re Marriage of Charnogorsky, 302 Ill. App. 3d 649, 236 Ill. Dec. 234, 707 N.E.2d 79 (1st Dist. 1998); In re Grimes, 400 Pa. Super. 146, 582 A.2d 1386 (1990), decision rev'd, 530 Pa. 388, 609 A.2d 158 (1992). As to change of a child's name in an adoption proceeding, see 2 Am. Jur. 2d, Adoption ß 149.

Related References:Petition or application -- For change of minor's surname -- To adoptive parents' name. 18A Am. Jur. Pleading and Prac-tice Forms, Name ß 35.


Related References:Rights and remedies of parents inter se with respect to the names of their children, 40 A.L.R. 5th 697 ß 6[a].

n5 In re Dunston, 18 N.C. App. 647, 197 S.E.2d 560 (1973). A mother could not unilaterally change an infant son's surname over the biological father's objection, even though the son was born out of wedlock and had not been legitimated, where the biological father's name was entered on the birth certificate as the father, and the parents had initially agreed that the child would bear the biological father's surname. In re Crawford, 134 N.C. App. 137, 517 S.E.2d 161 (1999).

Related References:Rights and remedies of parents inter se with respect to the names of their children, 40 A.L.R. 5th 697 ß 3.

n6 Webber v. Parker, 246 La. 886, 168 So. 2d 269 (1964).

n7 In In Interest of M. L. P., 621 S.W.2d 430 (Tex. Civ. App. San Antonio 1981), dismissed.

n8 Application of Otis, 204 Misc. 1073, 126 N.Y.S.2d 651 (Sup 1954).

Related References:Rights and remedies of parents inter se with respect to the names of their children, 40 A.L.R. 5th 697 ß 3. Notice -- Filing of petition for change of minor's name. 18A Am. Jur. Pleading and Practice Forms, Name ß 41.

n9 In re Marriage of Charnogorsky, 302 Ill. App. 3d 649, 236 Ill. Dec. 234, 707 N.E.2d 79 (1st Dist. 1998).

n10 In re Staros, 280 N.W.2d 409 (Iowa 1979); Ex parte Stull, 276 S.C. 512, 280 S.E.2d 209 (1981). A father with no adverse interest may, as next friend, assert legal rights on behalf of his minor children. Secretary of Com. v. City Clerk of Lowell, 373 Mass. 178, 366 N.E.2d 717 (1977).

Related References:Petition or application -- For leave to intervene by minor's natural father -- Opposition to change -- Proceeding for change of minor child's name. 18A Am. Jur. Pleading and Practice Forms, Name ß 37.


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ß 45 Informal name change

A divorced parent may not change a minor child's name de facto, even for informal occasions, where a statute mandates that no minor child's name may be changed without both of the child's parents having notice of the pending of the appli-cation for the change of name. n1 A court may grant injunctive relief prohibiting a custodial mother from the informal name change of minor children in her custody to reflect the surname of a stepfather, where the change is against their best interests and in derogation of the natural father's interest in preserving the children's use of their legal name and his parental relationship. n2 It is not in the best interests of a minor child for a court to sanction its informal adoption of a stepfather's surname, for use while in the custody of the mother, despite the retention and use of the natural father's sur-name at other times. n3

Observation: An informal or illegal change of a minor's surname does not effect a de facto adoption and does not suspend the natural father's duty to support. n4

FOOTNOTES:

n1 Young v. Young, 356 N.W.2d 823 (Minn. Ct. App. 1984).

n2 Brown v. Carroll, 683 S.W.2d 61 (Tex. App. Tyler 1984).

Related References:Petition or application -- For injunction to prevent mother from allowing minor child to use stepfather's surname -- By natural father. 18A Am. Jur. Pleading and Practice Forms, Name ß 38.

n3 Young v. Young, 356 N.W.2d 823 (Minn. Ct. App. 1984).

Related References:Petition or application -- For change of minor's surname -- To stepfather's name. 18A Am. Jur. Pleading and Practice Forms, Name ßß 33, 34.

n4 In re Russek, 38 Ohio App. 2d 45, 67 Ohio Op. 2d 260, 312 N.E.2d 536 (8th Dist. Cuyahoga County 1974) (recognizing rule).

REFERENCE: West's Key Number Digest, Names [westkey]20A.L.R. Digest: Name ß 7A.L.R. Index: Change of NameA.L.R. Index: Names

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18A Am. Jur. Pleading and Practice Forms, Name ßß 23 to 43, 45

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ß 46 Requirement that change be in child's best interest

While an adult has a general right to assume a new name, n1 a court must give greater protection when it is the name of an infant that is sought to be changed, and in these matters a court stands in loco parentis with respect to the infant, n2 and the paramount concern is that the name change must be in the best interests of the child. n3 However, where there are peripheral factors, exceptions are permitted. n4 In view of the special rights and interests of parents with regard to their children, a court considering a proposed name change for a minor child should also consider the interests of the parents as well as the best interests of the child. n5

Observation: In a proceeding for the name change of a child, the issue is not whether it is in the best interest of the child to have the surname of the mother or father, but rather, whether the interest of the child will be promoted substan-tially by changing his or her surname. n6

In the case of a contested petition to change a minor child's name, the court must carefully evaluate all the relevant fac-tual circumstances to determine if the petitioning parent has established that the change is in the child's best interests, without according a presumption in favor of either parent. n7 However, it has been held that a court has no discretion to deny a father's application to change the name of his child if there is satisfactory evidence establishing that the change of name would be in the best interest of the child. n8

The task of determining the best interests of a child in a case involving a child's surname is for the trial judge, who has the opportunity to personally observe and evaluate witnesses, n9 and the determination of the issues involved is ordinar-ily a matter for the trial court's discretion. n10 Because the child's best interest is the ultimate fact and the material issue, n11

when granting or denying a petition for a name change, the court must set forth clear and compelling reasons for its de-cision. n12

FOOTNOTES:

n1 As to right of adult to change name, see ßß 16, 17.


n3 In re Custody of J.C.O., 1999 MT 325, 297 Mont. 327, 993 P.2d 667 (1999); Minnig v. Nelson, 9 Neb. App. 427, 613 N.W.2d 24 (2000), review overruled, (Jan. 18, 2001); Mazzone v. Miles, 341 S.C. 203, 532 S.E.2d 890 (Ct. App. 2000); Christensen v. Christensen, 941 P.2d 622 (Utah Ct. App. 1997); May v. Grandy, 259 Va. 629, 528 S.E.2d 105 (2000). An order to change a child's name shall not be entered unless the trial court finds by clear and convincing evidence that a change is necessary to serve the child's best interest. Stockton v. Oldenburg, 305 Ill. App. 3d 897, 238 Ill. Dec. 1013, 713 N.E.2d 259 (4th Dist. 1999).

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Related References:Rights and remedies of parents inter se with respect to the names of their children, 40 A.L.R. 5th 697 ß 8.5.


n5 Matter of Morehead, 10 Kan. App. 2d 625, 706 P.2d 480 (1985).

n6 Swank v. Petkovsek, 216 A.D.2d 920, 629 N.Y.S.2d 129 (4th Dep't 1995).

n7 Petition of Schidlmeier by Koslof, 344 Pa. Super. 562, 496 A.2d 1249 (1985).

n8 In Interest of M. L. P., 621 S.W.2d 430 (Tex. Civ. App. San Antonio 1981), dismissed.

n9 Christensen v. Christensen, 941 P.2d 622 (Utah Ct. App. 1997).

n10 Matter of Spatz, 199 Neb. 332, 258 N.W.2d 814 (1977); In Interest of M. L. P., 621 S.W.2d 430 (Tex. Civ. App. San Antonio 1981), dismissed.

n11 Daves v. Nastos, 105 Wash. 2d 24, 711 P.2d 314 (1985).

n12 LaChapelle v. Mitten, 607 N.W.2d 151 (Minn. Ct. App. 2000), review denied, (May 16, 2000) and cert. denied, 121 S. Ct. 565, 148 L. Ed. 2d 485 (U.S. 2000).

Related References:Order -- Changing minor child's name -- After hearing objections. 18A Am. Jur. Pleading and Practice Forms, Name ß 45.


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C. Minor's Name 2. Particular Factors Considered


ß 47 Generally

Whether a change in a child's surname is in the child's best interests may depend on several factors, including:

.misconduct by one parent

.a parent's failure to support the child

.parental failure to maintain contact with the child

.the length of time that the surname has been used for or by the child

.whether the child's surname is different from the surname of the custodial parent

.the child's reasonable preference for one surname

.the effect of the change of the child's surname on the preservation and development of the child's relationship with each parent

.the degree of community respect associated with the child's present surname and proposed surname

.difficulties that the child may experience from bearing the present or proposed surname

.the identification of the child as part of a family unit n1

Other important factors in determining whether a change in a child's surname is in the child's best interests include the motivation of the parties, the effect a failure to change the name will have on furthering an estrangement of the child from a parent exhibiting a desire to preserve the parental relationship and the possibility that a different surname may cause insecurity or a lack of identity. n2 Also considered are the expressed wishes of both parents, the stated reason for the proposed change, the child's age and maturity, the nature of the family situation, and the strength of the tie between the child and each parent. n3

FOOTNOTES:

n1 Minnig v. Nelson, 9 Neb. App. 427, 613 N.W.2d 24 (2000), review overruled, (Jan. 18, 2001).

n2 Minnig v. Nelson, 9 Neb. App. 427, 613 N.W.2d 24 (2000), review overruled, (Jan. 18, 2001).

Related References:Rights and remedies of parents inter se with respect to the names of their children, 40 A.L.R. 5th 697 ß 8.5.

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n3 In re Marriage of Presson, 102 Ill. 2d 303, 80 Ill. Dec. 294, 465 N.E.2d 85 (1984).

Related References:Rights and remedies of parents inter se with respect to the names of their children, 40 A.L.R. 5th 697 ßß 6[a, c], 8.

SUPPLEMENT:

CasesIn a name change, what is in the best interest of the child involves several factors, including but not limited to: (1) mis-conduct by one of the parents, (2) failure to support the child, (3) failure to maintain contact with the child, (4) the length of time the surname has been used, and (5) whether the surname is different from that of the custodial parent; the court may also consider whether a particular name will contribute to the estrangement of the child from a non-custodial parent who wishes to foster and preserve the parental relationship. In re Name Change of L.M.G., 2007 SD 83, 738 N.W.2d 71 (S.D. 2007). Change of child's surname to father's surname was not in child's best interests, where child's surname was the same as her mother's name, her half-sister's name, and her stepfather's name, those people constituted child's family unit, rela-tionship between mother and stepfather, although troubled in the past, was improving, relationship between mother and father was also improving and father had increased visitation with child such that a name change would not change his and child's relationship, and child could suffer difficulties, harassment, or embarrassment by having a different surname than her family unit. In re Name Change of L.M.G., 2007 SD 83, 738 N.W.2d 71 (S.D. 2007).


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ß 48 Embarrassment, inconvenience, or confusion

Although embarrassment and harassment to the child occasioned upon a proposed change of name are frequent consid-erations in the determination of a minor's best interests, n1 a custodial parent's interest in having his or her minor child's name changed, over the objection of the noncustodial parent, in order to avoid embarrassment, inconvenience, or confu-sion is, as a general matter, entitled to little or no consideration. n2 Embarrassment and harassment to the child will be considered, and evidence supported the conclusion that changing a child's surname from that of the father to that of the mother would be in the best interest of the child and would not be detrimental to any person, including the father, where a social worker testified that the notoriety of the father's surname was causing difficulty for the child. n3

Observation: A change of name was not in the best interest of the minor children, born out of wedlock and bearing the mother's maiden name, where any benefit of a name change, to reflect the acknowledged father's surname, would be outweighed by the possible confusion and disruption that could result from the change. n4

A change of a minor's name will be denied where the granting of the change will further no purpose other than that of a temporary and superficial expedient based upon allegations of speculative embarrassment to the child. n5

FOOTNOTES:

n1 Mazzone v. Miles, 341 S.C. 203, 532 S.E.2d 890 (Ct. App. 2000); Christensen v. Christensen, 941 P.2d 622 (Utah Ct. App. 1997). The potential embarrassment or discomfort the child would experience when his or her surname is different than the custodial parent is a fac-tor that should be considered by the trial court when contemplating changing a minor's name. In re the Marriage of Hayes, 12 S.W.3d 767 (Mo. Ct. App. S.D. 2000).

n2 Wearn v. Wray, 139 Ga. App. 363, 228 S.E.2d 385 (1976); In re Harris, 160 W. Va. 422, 236 S.E.2d 426 (1977). It has been said that a trial court cannot change a child's name because of minor inconvenience or minor embarrassment. May v. Grandy, 259 Va. 629, 528 S.E.2d 105 (2000).


n3 B -- L -- W -- by Ellen K -- v. Wollweber, 823 S.W.2d 119 (Mo. Ct. App. S.D. 1992).

n4 Aitkin County Family Service Agency v. Girard, 390 N.W.2d 906 (Minn. Ct. App. 1986).

n5 In re Marriage of Omelson, 112 Ill. App. 3d 725, 68 Ill. Dec. 307, 445 N.E.2d 951 (5th Dist. 1983).

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ß 49 Parent's interest in having child bear paternal or maternal surname

Among the inherent and inalienable rights protected, when the scope of life, liberty, and property is measured, is the right to establish and maintain a home and family relations, and because a change of a child's paternal surname can be a burden upon an important family relationship, a father's protectible interest in that respect comes within the coverage of the due process clause of the Federal Constitution. n1 Thus, it is generally recognized that a father, who is ordinarily the objecting party, has a protectible interest in having his child bear his surname in accordance with the usual custom, even though the mother may have been awarded custody of the child. n2 Such custom, however, is not alone sufficient justifi-cation for the change of a minor child's name. n3 To the extent that a father's "right" in having a child bear his surname represents a recognition of a father's interest in perpetuating his own name or in protecting his ego or in preserving his perceived male prerogatives, it may have little or no relevance to the best interests of the child or to the propriety of a name change. n4 However, to the extent the right recognizes the father's interest in maintaining his relationship with a child for their mutual benefit, it becomes highly relevant. n5 Every divorced parent, custodial or not, whose paternal or maternal bond remains unsevered, has a cognizable claim to having his or her child continue to bear the very same legal name as that by which it was known at the time the marriage was dissolved. n6 Accordingly, judicial discretion in order-ing a change of a minor's surname against the objection of one parent should be exercised with great caution and only where the evidence is clear and compelling that the substantial welfare of the child necessitates such change. n7

FOOTNOTES:

n1 Carroll v. Johnson, 263 Ark. 280, 565 S.W.2d 10 (1978).

n2 Cohan v. Cunningham, 104 A.D.2d 716, 480 N.Y.S.2d 656 (4th Dep't 1984); Application of Tubbs, 1980 OK 177, 620 P.2d 384 (Okla. 1980). As to respecting a father's right in his minor child's surname, generally, see ßß 14, 15. As to the right of a parent objecting to the other parent's attempt to change the name of their child to relief by way of injunction, see 42 Am. Jur. 2d, Injunctions ß 90.

Related References: Rights and remedies of parents inter se with respect to the names of their children, 40 A.L.R. 5th 697 ß 7[a, c]. Petition or application -- For leave to intervene by minor's natural father -- Opposition to change -- Proceeding for change of minor child's name. 18A Am. Jur. Pleading and Practice Forms, Name ß 37.

n3 Petition of Schidlmeier by Koslof, 344 Pa. Super. 562, 496 A.2d 1249 (1985).

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n4 In re Marriage of Omelson, 112 Ill. App. 3d 725, 68 Ill. Dec. 307, 445 N.E.2d 951 (5th Dist. 1983). Evidence was insufficient to support the trial court's conclusion that changing a child's surname from that of an unwed mother to the father was in the child's best interests, as the only testimony offered by the father was his desire for the child to bear his name because she was his daughter, the mother had been the custodial parent since the child's birth, the child had been known by her surname, and the mother testified that a change to the father's name would create confusion for the child and the administration at the school she attended. Mazzone v. Miles, 341 S.C. 203, 532 S.E.2d 890 (Ct. App. 2000).

n5 ß 50.

n6 Application of Tubbs, 1980 OK 177, 620 P.2d 384 (Okla. 1980). As to the significance of maintaining a bond with the child in the court's determination whether to grant a change of name, see ß 50.

n7 LaChapelle v. Mitten, 607 N.W.2d 151 (Minn. Ct. App. 2000), review denied, (May 16, 2000) and cert. denied, 121 S. Ct. 565, 148 L. Ed. 2d 485 (U.S. 2000).


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ß 50 Interest of noncustodial parent in maintaining parental bond

A relevant factor in determining whether changing a child's surname is in the child's best interests includes any effect of the name change on the development and preservation of the child's relationship with each parent. n1 A noncustodial par-ent's interest in having the child's name remain the same in order to maintain the parental bond with the child is another factor entitled to significant consideration where the custodial parent's proposal to change the minor child's name is op-posed by the noncustodial parent. n2 Rights in a parental bond have been variously classified as essential rights, basic civil rights, fundamental rights and "personal rights more precious than those of property" and the interest comprised within the concept of the parental bond is the subject of constitutional protection under both the Due Process and Equal Protection Clauses. n3 The societal interest in preserving the parental relationship is so strong that judicial discretion in ordering a name change of a minor child against the objection of one parent, particularly where that parent is divorced from the custodial parent and, thus, already has a weakened bond with the child, should be exercised only upon clear and compelling evidence that the substantial welfare of the child necessitates such a change. n4 The courts have tradition-ally tried to maintain and to encourage the continuation of such parental relationships because the link between a father and child in circumstances such as divorce and separation is uncertain at best, and a change of name could further weaken, if not sever, such a bond. n5 The change of a child's paternal surname may foster an unnatural barrier between father and child and erode a relationship that should be nurtured n6 and may not be in the child's best interest if the effect is to contribute to the further estrangement of the child from a father who exhibits a desire to preserve the parental rela-tionship. n7

Observation: Notwithstanding the importance of the parental bond, where there is no evidence of any relationship between the natural father and the minor child seeking to adopt the surname of his stepfather, a court may not deny the name change on the speculation that such a relationship could be disrupted. n8

FOOTNOTES:

n1 In re Marriage of Omelson, 112 Ill. App. 3d 725, 68 Ill. Dec. 307, 445 N.E.2d 951 (5th Dist. 1983); Christensen v. Christensen, 941 P.2d 622 (Utah Ct. App. 1997).

n2 Ex parte Stull, 276 S.C. 512, 280 S.E.2d 209 (1981); In Interest of Baird, 610 S.W.2d 252 (Tex. Civ. App. Fort Worth 1980).


n3 Application of Tubbs, 1980 OK 177, 620 P.2d 384 (Okla. 1980); Beyah v. Shelton, 231 Va. 432, 344 S.E.2d 909 (1986).

n4 Robinson v. Hansel, 302 Minn. 34, 223 N.W.2d 138 (1974); Matter of Spatz, 199 Neb. 332, 258 N.W.2d 814 (1977).

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n5 Hall v. Hall, 30 Md. App. 214, 351 A.2d 917, 92 A.L.R.3d 1077 (1976); Brown v. Carroll, 683 S.W.2d 61 (Tex. App. Tyler 1984). How a name change will affect the child's relationship with his or her parent is a factor that should be considered by the trial court when con-templating changing a minor's name. In re the Marriage of Hayes, 12 S.W.3d 767 (Mo. Ct. App. S.D. 2000).

n6 Carroll v. Johnson, 263 Ark. 280, 565 S.W.2d 10 (1978); Application of Rossell by Yacono., 196 N.J. Super. 109, 481 A.2d 602 (Law Div. 1984).

n7 In re Petras, 123 Misc. 2d 665, 475 N.Y.S.2d 198 (City Civ. Ct. 1984).

n8 In re Dillen, 283 Pa. Super. 26, 423 A.2d 426 (1980).


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ß 51 Parent's misconduct or neglect

Relevant inquiries in deciding cases involving a change of name of minor children include whether any proof exists of misconduct by the natural father that might make the continued use of the name by his children shameful and disgrace-ful and whether the father has willfully abandoned or surrendered the natural ties between himself and his children. n1 Misconduct or abandonment n2 and extenuating circumstances of neglect n3 by the parent opposed to a minor child's change of name may justify a forfeiture of that parent's right to have the child bear that parent's name. A change of name for a minor child may be permitted, despite opposition from a natural parent, where that parent's name is posi-tively deleterious to the child, n4 as in the case where a minor child's natural father had murdered the child's stepfather. n5 In certain states applications for a change of an infant's name are usually granted only where the natural father is guilty of misconduct or abandonment. n6

FOOTNOTES:


n2 Matter of Goldstein, 104 A.D.2d 616, 479 N.Y.S.2d 385 (2d Dep't 1984); Petition of Christjohn, 286 Pa. Super. 112, 428 A.2d 597 (1981).

Related References: Rights and remedies of parents inter se with respect to the names of their children, 40 A.L.R. 5th 697 ß 6[a].

n3 Application of Rossell by Yacono., 196 N.J. Super. 109, 481 A.2d 602 (Law Div. 1984).

n4 Application of Krcelic, 90 Misc. 2d 666, 395 N.Y.S.2d 382 (City Civ. Ct. 1977).


n6 ß 52.


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ß 52 Failure to support or maintain contact

The failure of a parent to provide support for n1 or to maintain contact with n2 the minor child is a factor that has lessened the weight to be accorded to that parent's opposition to a proposed name change of his or her child. A failure to maintain contact with a child may support a change of name even though the biological father has not abandoned the child. n3

On the other hand, where the record shows a father who maintains an active interest in his daughter, loves her, contin-ues to support her and had committed no wrong toward her, a change of name is not in the best interest of the minor child. n4

Observation: A change of name was not in the best interest of the minor child where, although the natural father could neither see nor support his child because of incarceration, the case did not involve a stepfather who had become the psychological father of the child. n5

FOOTNOTES:

n1 Hall v. Hall, 30 Md. App. 214, 351 A.2d 917, 92 A.L.R.3d 1077 (1976); In re Harris, 160 W. Va. 422, 236 S.E.2d 426 (1977). In certain states applications for a change of an infant's name are usually granted only where the natural father is guilty of a lack of support. Matter of Maliszewski on Behalf of Bowe, 162 Misc. 2d 79, 615 N.Y.S.2d 977 (Sup 1994).

Related References: Rights and remedies of parents inter se with respect to the names of their children, 40 A.L.R. 5th 697 ß 6[b].

n2 Hall v. Hall, 30 Md. App. 214, 351 A.2d 917, 92 A.L.R.3d 1077 (1976); In re Harris, 160 W. Va. 422, 236 S.E.2d 426 (1977).

Related References: Rights and remedies of parents inter se with respect to the names of their children, 40 A.L.R. 5th 697 ß 6[c].

n3 May v. Grandy, 259 Va. 629, 528 S.E.2d 105 (2000).

n4 In re Marriage of Omelson, 112 Ill. App. 3d 725, 68 Ill. Dec. 307, 445 N.E.2d 951 (5th Dist. 1983).

n5 Application of Krcelic, 90 Misc. 2d 666, 395 N.Y.S.2d 382 (City Civ. Ct. 1977).


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A.L.R. Digest: Name ß 7A.L.R. Index: Change of NameA.L.R. Index: Names18A Am. Jur. Pleading and Practice Forms, Name ßß 23 to 43, 45

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ß 53 Child's preference

A relevant factor in determining whether changing a child's surname is in the child's best interests is the child's prefer-ence in light of the child's age and experience, n1 although such a preference is not controlling in the determination of the minor child's best interest, n2 particularly where the minor child is not of sufficient age and discretion to make an intelli-gent choice in the matter of a change of name. n3 However, it has been said that a trial court must not change a child's name over the objection of the natural father solely because a child desires to bear that child's stepfather's surname. n4 More than a mere desire on the part of an upset child, fostered by the suggestion of the divorced and remarried mother, to change the child's surname to that of the second husband, is necessary to warrant interference with the usual custom that a child bear the father's surname. n5

FOOTNOTES:

n1 Mazzone v. Miles, 341 S.C. 203, 532 S.E.2d 890 (Ct. App. 2000); Christensen v. Christensen, 941 P.2d 622 (Utah Ct. App. 1997).

Related References:Affidavit -- Minor's consent to change of name. 18A Am. Jur. Pleading and Practice Forms, Name ß 39.

n2 Brown v. Carroll, 683 S.W.2d 61 (Tex. App. Tyler 1984).

n3 Laks v. Laks, 25 Ariz. App. 58, 540 P.2d 1277 (Div. 2 1975) (13- and 14-year-olds may have been of age and maturity to make intelli-gent and decisive choice); In re Marriage of Omelson, 112 Ill. App. 3d 725, 68 Ill. Dec. 307, 445 N.E.2d 951 (5th Dist. 1983) (12 year old was not capable of making intelligent choice); Application of Saxton, 309 N.W.2d 298 (Minn. 1981) (court erred in refusing to take testi-mony of nine- and seven-year old children with respect to proposed name change); Beyah v. Shelton, 231 Va. 432, 344 S.E.2d 909 (1986) (a child who is four years old at the time of a hearing is not of sufficient age and discretion). A change of name was granted to a 12-year-old child who expressed her desire to adopt the surname of the stepfather with whom she had lived for four years and where she was the only member of a well-integrated family with a different name. Application of Robinson, 74 Misc. 2d 63, 344 N.Y.S.2d 147 (City Civ. Ct. 1972).

Related References:Petition or application -- For change of minor's surname -- To stepfather's name. 18A Am. Jur. Pleading and Practice Forms, Name ßß 33, 34.

n4 May v. Grandy, 259 Va. 629, 528 S.E.2d 105 (2000).

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n5 In re Newcomb, 15 Ohio App. 3d 107, 472 N.E.2d 1142 (10th Dist. Franklin County 1984).


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ß 54 Cultural heritage

A change of name, from the maiden name of a divorced custodial mother to the name of the father, which would permit the enrollment of the child in the Indian Tribal Rolls, is in the best interest of a minor child where the child is of Indian blood. n1 Similarly, a change of name, incidental to a divorce, which reflects the mother's choice of an American given name while retaining the father's family name to promote a balance between the child's cultural heritages is in the best interest of the minor child. n2

FOOTNOTES:

n1 Overton v. Overton, 207 Mont. 292, 674 P.2d 1089 (1983).

n2 In re Marriage of Nguyen, 684 P.2d 258 (Colo. Ct. App. 1983).


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ß 55 Receipt of welfare benefits

A change of name will be denied to a minor child where the basis for the application was a desire on the part of the in-fant to assume the name of the infant's deceased father in order to participate in social security benefits, where the child's birth certificate sets forth the child's surname as the mother's maiden name and does not set forth the name of the father. n1

FOOTNOTES:

n1 Application of Szemplinski by Szemplinski, 134 Misc. 2d 162, 509 N.Y.S.2d 475 (City Civ. Ct. 1986).


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C. Minor's Name 3. Proceedings


ß 56 Notice

Where the result of a judicial proceeding could permanently deprive a legitimate parent of all that parenthood applies, due process requires notice reasonably calculated to apprise the interested parties of the pendency of the action and an opportunity to present their objections. n1 Even where held not to be required by statute or the Federal Constitution, the giving of notice is recognized as crucial to a parent's ability to protect his or her interest in a minor child's name n2 and is considered to be the better practice. n3

FOOTNOTES:

n1 Good v. Stevenson, 113 Misc. 2d 270, 448 N.Y.S.2d 981 (Fam. Ct. 1982); Beyah v. Shelton, 231 Va. 432, 344 S.E.2d 909 (1986). A decree changing a minor's surname without personal notice to a living noncustodial parent whose whereabouts are known or are readily ascertainable from the available sources at hand and whose paternal or maternal bond remains unsevered falls short of compliance with the minimum standards of due process. Application of Tubbs, 1980 OK 177, 620 P.2d 384 (Okla. 1980).

Related References:Order to show cause -- Why petition for change of minor's name should not be granted -- Publication of statutory notice. 18A Am. Jur. Pleading and Practice Forms, Name ß 43.

n2 Blasi v. Blasi, 648 S.W.2d 80 (Ky. 1983); Ex parte Stull, 276 S.C. 512, 280 S.E.2d 209 (1981).

n3 In re Fletcher, 145 Vt. 209, 486 A.2d 627 (1984).

Related References:Notice -- Filing of petition for change of minor's name. 18A Am. Jur. Pleading and Practice Forms, Name ß 41. Notice -- Hearing of petition for change of minor's name. 18A Am. Jur. Pleading and Practice Forms, Name ß 42.


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ß 57 Court's jurisdiction

A court, before entering a proper order changing the name of a child, must of course have jurisdiction to enter such an order. n1 In some states a trial court has jurisdiction to enter a change of name order for a minor child incidental to di-vorce proceedings. n2 Accordingly, it has been said that because the matter of a change of name of a minor child of di-vorced parents is a matter incidental to the custody of the child, a court which has jurisdiction of the divorce can enter-tain a petition for injunction to enjoin the custodial parent from instituting any proceeding to change the name of a mi-nor child of the parties. n3 However, in other jurisdictions, a court in a marital dissolution action does not have jurisdic-tion to enter a name change, usually because the state's name change statute provides the exclusive remedy, n4 or because another court has the exclusive jurisdiction to change the name of a child. n5 In some jurisdictions employing the Uni-form Parentage Act, a court making a determination as to the parentage of a minor child in an order of filiation has the authority to determine, in the best interests of the child, what surname a child born out of wedlock shall bear, n6 although in other jurisdictions, pursuant to the particular statutes therein, this rule is not adhered to. n7

Practice Guide: Although a certain court may have general jurisdiction over the name change of a child, another court may have specific authority to order that a new birth certificate be issued with an accompanying change of name in the course of a paternity proceeding. n8

FOOTNOTES:

n1 B -- L -- W -- by Ellen K -- v. Wollweber, 823 S.W.2d 119 (Mo. Ct. App. S.D. 1992); Gersuny v. Armstrong, 581 A.2d 718 (R.I. 1990).

n2 In re Marriage of Nguyen, 684 P.2d 258 (Colo. Ct. App. 1983); In re Marriage of Gulsvig, 498 N.W.2d 725 (Iowa 1993).

Related References:Petition or application -- For change of minor's surname -- To adoptive parents' name. 18A Am. Jur. Pleading and Prac-tice Forms, Name ß 35. Order -- Changing minor child's name -- After hearing objections. 18A Am. Jur. Pleading and Practice Forms, Name ß 45.

n3 In re Marriage of Omelson, 112 Ill. App. 3d 725, 68 Ill. Dec. 307, 445 N.E.2d 951 (5th Dist. 1983); Burke v. Hammonds, 586 S.W.2d 307 (Ky. Ct. App. 1979).

Related References:

Page 99

Petition or application -- For injunction to prevent mother from allowing child to use stepfather's surname -- By natural father. 18A Am. Jur. Pleading and Practice Forms, Name ß 38.

n4 Matter of Marriage of Killman, 264 Kan. 33, 955 P.2d 1228 (1998); Viola v. Fundrella, 241 N.J. Super. 304, 574 A.2d 1036 (Ch. Div. 1990).

n5 Bowen v. Thomas, 102 Ohio App. 3d 196, 656 N.E.2d 1328 (3d Dist. Marion County 1995).

n6 Brooks v. Willie, 117 Misc. 2d 640, 458 N.Y.S.2d 860 (Fam. Ct. 1983) (without reliance upon Act).

n7 Maria E v. Anthony E, 125 Misc. 2d 933, 481 N.Y.S.2d 227 (Fam. Ct. 1984).

n8 Gersuny v. Armstrong, 581 A.2d 718 (R.I. 1990).


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ß 58 Burden of persuasion; presumptions

In the determination of whether to grant a change of name to a minor child, there is a presumption that a change is detri-mental and must therefore be justified. n1 Thus, a parent seeking to change a child's surname has the burden of proving that the change will further the child's best interests, n2 and it has been said this must be done by clear, cogent and con-vincing evidence. n3 When a natural father objects to the proposed change of name of his minor child, the burden of per-suasion is on the mother to prove by satisfactory evidence that the change would be in the child's best interest. n4 Where it is clear that the legislature intended by statute that the best interests of a minor child in change of name actions should be protected, and in that regard created a presumption that it is in the best interest of the child to retain the name of the parent who makes support payments and fulfills other duties imposed by a dissolution decree, if that parent objects to the proposed name change, the effect of such a presumption is that the best interest of the child remains the primary concern with merely a presumption that the supporting parent's position is in the best interest of the child. n5 Generalized allegations will not suffice to rebut the statutory presumption in favor of allowing a minor child to retain the child's present name. n6

FOOTNOTES:

n1 State ex rel. Spence-Chapin Services to Families and Children v. Tedeno, 101 Misc. 2d 485, 421 N.Y.S.2d 297 (Sup 1979).

n2 Mazzone v. Miles, 341 S.C. 203, 532 S.E.2d 890 (Ct. App. 2000); Barabas v. Rogers, 868 S.W.2d 283 (Tenn. Ct. App. 1993); Rowland v. Shurbutt, 259 Va. 305, 525 S.E.2d 917 (2000). As to the requirement that change of name be in child's best interests, see ß 46.

n3 Lufft v. Lufft, 188 W. Va. 339, 424 S.E.2d 266 (1992).

n4 Beyah v. Shelton, 231 Va. 432, 344 S.E.2d 909 (1986).

n5 Petition of Meyer, 471 N.E.2d 718 (Ind. Ct. App. 4th Dist. 1984).

n6 Petition of Meyer, 471 N.E.2d 718 (Ind. Ct. App. 4th Dist. 1984); Petition of Schidlmeier by Koslof, 344 Pa. Super. 562, 496 A.2d 1249 (1985).


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ß 59 Appeals

Appellate courts review a lower court's determination as to whether the best interests of a child warrant changing his or her surname under an abuse of discretion standard. n1 Accordingly, a trial court's determination on a petition for the change of a child's surname will not be reversed absent an abuse of discretion, n2 or unless the court's findings are against the manifest weight of the evidence. n3 An abuse of discretion will be found only where the decision is clearly against the logic and effect of the facts and circumstances before the trial court or where the trial court has misinterpreted the law. n4 Furthermore, a reviewing court will not reweigh the evidence and will view the evidence in the light most favor-able to the appellee. n5

Practice Guide: Where the evidence before a trial court on the subject of whether it was in a child's best interest to grant the biological father's petition to change the child's surname was in the form of a deposition, and because the court thus did not see and hear witnesses, the trial court's finding of fact, while highly persuasive and entitled to great weight, was not binding on appeal. n6

An appellate court is precluded, on an appeal of an order denying a mother's application to change a minor daughter's surname from the father's to the mother's, from considering facts alleged by the father that were not before the trial court. n7 A mother's claim that the trial court's denial of her petition to change her infant son's surname violated her rights to due process and equal protection was procedurally barred on appeal, where the mother did not raise such argu-ments at an initial hearing before the trial court. n8

FOOTNOTES:

n1 Coolidge v. Ulbrich, 733 So. 2d 1092 (Fla. Dist. Ct. App. 4th Dist. 1999); In re Custody of J.C.O., 1999 MT 325, 297 Mont. 327, 993 P.2d 667 (1999); In re Hall, 135 Ohio App. 3d 1, 732 N.E.2d 1004 (4th Dist. Ross County 1999).

n2 Walbert v. Walbert, 1997 ND 164, 567 N.W.2d 829 (N.D. 1997).

n3 Stockton v. Oldenburg, 305 Ill. App. 3d 897, 238 Ill. Dec. 1013, 713 N.E.2d 259 (4th Dist. 1999).

n4 In re Paternity of Tibbitts, 668 N.E.2d 1266 (Ind. Ct. App. 1996).

n5 In re Paternity of Tibbitts, 668 N.E.2d 1266 (Ind. Ct. App. 1996).

n6 Rowland v. Shurbutt, 259 Va. 305, 525 S.E.2d 917 (2000).

n7 In re Budenz, 133 Ohio App. 3d 359, 728 N.E.2d 24 (2d Dist. Clark County 1999).

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n8 In re Crawford, 134 N.C. App. 137, 517 S.E.2d 161 (1999).


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Name III. Idem Sonans


ß 60 Generally

The rule of idem sonans, where recognized, provides that even given a variance in the spelling of two names, if the cor-rect pronunciation of the two names results in practically identical sounds, the names are held to designate the same per-son. n1 As stated by another court, idem sonans is the rule of law that a variant spelling of a name in a document will not render the document void if the misspelling is pronounced in the same way as the true spelling, and literally, it means "having the same sound." n2

Generally, under the doctrine of idem sonans, a mistake or variance in the spelling of a party's name is immaterial to the disposition of a legal proceeding, if both modes of spelling have the same sound. n3 Consequently, great latitude is al-lowed in the spelling and pronunciation of proper names in all legal proceedings, whether civil or criminal, n4 and a mis-take or variance in spelling the name of a party is immaterial if both modes of spelling have the same sound. n5 The rule of idem sonans has been much enlarged by modern decisions to conform to the growing rule that a variance in a name, to be material, must be such as to have misled a party to the party's prejudice. n6

While courts frequently resort to the doctrine of "idem sonans" where there is variation in the spelling of a name, the rule of idem sonans is not applicable where the record of a judgment entered on substituted notice presents not a mere discrepancy or variation in spelling of a defendant's name but uses a name other than and different from that borne by the person against whom the judgment is sought to be enforced. n7

Observation: In some cases, where the doctrine of idem sonans does not strictly apply, the doctrine of interchange-ability of names applies, as in the case of Celestia and Celeste. n8

FOOTNOTES:

n1 People v. White, 311 Ill. App. 3d 374, 243 Ill. Dec. 973, 724 N.E.2d 572 (4th Dist. 2000), appeal denied, 189 Ill. 2d 701, 248 Ill. Dec. 607, 734 N.E.2d 898 (2000). As to the application of the doctrine of idem sonans to particular situations, see 41 Am. Jur. 2d, Indictments and Informations ß 271; 46 Am. Jur. 2d, Judgments ß 153; 62B Am. Jur. 2d, Process ß 258; 66 Am. Jur. 2d, Records and Recording Laws ß 140; 77 Am. Jur. 2d, Vendor and Purchaser ß 156. As to the identity of names as presumptive evidence of the identity of the person, see 29 Am. Jur. 2d, Evidence ß 285. As to limited application of the principle of idem sonans in a divorce action, see 24 Am. Jur. 2d, Divorce and Separation ß 290.

n2 Mantis v. Resz, 5 S.W.3d 388 (Tex. App. Fort Worth 1999), reh'g overruled, (Dec. 9, 1999). Under the rule of idem sonans, a misspelling is not fatal to the validity of a document where the word, as misspelled, conveys to the hearer the same word correctly spelled. Wilson Sporting Goods Co. v. Pedersen, 76 Wash. App. 300, 886 P.2d 203 (Div. 1 1994).

n3 Brady v. Mullen, 139 N.H. 67, 649 A.2d 47 (1994).

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n4 Grannis v. Ordean, 234 U.S. 385, 34 S. Ct. 779, 58 L. Ed. 1363 (1914).

n5 State v. McGreevey, 832 S.W.2d 929 (Mo. Ct. App. W.D. 1992); State v. Laymon, 217 Neb. 464, 348 N.W.2d 902 (1984).

n6 Martin v. State, 541 S.W.2d 605 (Tex. Crim. App. 1976).

n7 Shields v. Heinold, 253 Iowa 898, 114 N.W.2d 302, 6 A.L.R.3d 1174 (1962).

n8 State v. Williams, 68 Ark. 241, 57 S.W. 792 (1900); Com. v. Warren, 143 Mass. 568, 10 N.E. 178 (1887). In an action against a nonresident motorist whose name was Edward Bahr, the filing of a petition against Edwin Bahr that was accepted by the defendant who signed the receipt card "Edward Bahr" was sufficient to give the court jurisdiction. Kraft v. Bahr, 256 Iowa 822, 128 N.W.2d 261 (1964).

REFERENCE: West's Key Number Digest, Names [westkey]16(1) to 16(3)A.L.R. Digest: Idem SonansA.L.R. Digest: Name ß 3A.L.R. Digest: Names

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ß 61 Application and illustrations of doctrine

The doctrine of idem sonans is generally applicable to documents in public records, n1 and applies to instruments affect-ing real property. n2 So, for example, under the rule of idem sonans, a one-letter mistake in the spelling of a judgment debtor's name on a recorded judgment is not fatal to the creation of a lien where the names sound sufficiently alike re-gardless of the misspelling. n3 However, in some states, the doctrine is inapplicable to the recordation of judgment liens, as the proper spelling of a debtor's name is said to be material. n4 Accordingly, in some states, the doctrine does not ap-ply to attachment liens recorded in the registry of deeds, and a judgment creditor's failure to correctly spell a judgment debtor's name in a recorded attachment lien prevents the recording from providing constructive notice of the lien to sub-sequent purchasers of the attached property. n5 Likewise, the doctrine has been held inapplicable to names that are mis-spelled in judgment-lien name indexes and cannot be invoked to preserve the rights of a judgment lienholder who has been excluded from foreclosure proceedings due to a misspelling of the judgment debtor's surname in a court's official record of certified judgments. n6

The rule of idem sonans has been applied to the misspelling of a name in a citation, and a citation is valid and jurisdic-tion is properly acquired where the defendant is merely misnamed and not misidentified, the intended defendant is served, and there is no showing that any person was misled or placed at some disadvantage. n7 Likewise when two names sound alike when commonly pronounced they are regarded as the same and are sufficient to withstand a plea of misnomer. n8

Idem sonans is not an infallible test in settling the question of variance between pleadings and proof. n9 The doctrine pro-vides that a variance between an allegation and proof of a given name is not material so long as the pronunciation or sound remains substantially the same. n10 Consequently, a variation between an allegation of name in a complaint and proof of the name will not impugn the validity of a judgment of conviction so long as the names sound alike or an atten-tive ear finds difficulty in distinguishing them when pronounced. n11 Thus the trial court, in a drug prosecution, properly charged the jury that the identity of the defendant was an essential element that had to be proven beyond a reasonable doubt, that the misspelling of the defendant's name in the indictment was not material and not a defense to the alleged offense, and that, if the defendant's name and the name in the indictment sounded similar, it was sufficient. n12

Courts have passed upon a variety of names and have determined that they were n13 or were not n14 idem sonans.

FOOTNOTES:

n1 In re Esparza, 118 Wash. 2d 251, 821 P.2d 1216, 16 U.C.C. Rep. Serv. 2d 1217 (1992).

n2 Wilson Sporting Goods Co. v. Pedersen, 76 Wash. App. 300, 886 P.2d 203 (Div. 1 1994).

n3 Wilson Sporting Goods Co. v. Pedersen, 76 Wash. App. 300, 886 P.2d 203 (Div. 1 1994).

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n4 Orr v. Byers, 198 Cal. App. 3d 666, 244 Cal. Rptr. 13 (4th Dist. 1988).

n5 Brady v. Mullen, 139 N.H. 67, 649 A.2d 47 (1994).

n6 National Packaging Corp. v. Belmont, 47 Ohio App. 3d 86, 547 N.E.2d 373 (1st Dist. Hamilton County 1988).

n7 Mantis v. Resz, 5 S.W.3d 388 (Tex. App. Fort Worth 1999), reh'g overruled, (Dec. 9, 1999).

n8 Werts v. State, 196 Ga. App. 452, 395 S.E.2d 922 (1990).

n9 Dees v. State, 41 Ga. App. 321, 152 S.E. 913 (1930).

n10 Purifoy v. State, 307 Ark. 482, 822 S.W.2d 374 (1991).

n11 Farris v. State, 819 S.W.2d 490 (Tex. Crim. App. 1990) (overruled on other grounds by, Riley v. State, 889 S.W.2d 290 (Tex. Crim. App. 1993)) and (overruling recognized by, Gilbert v. State, 904 S.W.2d 210 (Tex. App. Beaumont 1995)) and (overruling recognized by, Richards v. State, 1995 WL 704738 (Tex. App. Houston 14th Dist. 1995)) and (overruling recognized by, Mackvandian v. State, 1998 WL 751790 (Tex. App. Houston 14th Dist. 1998)) and (overruling recognized by, Horton v. State, 986 S.W.2d 297 (Tex. App. Waco 1999)) and (overruling recognized by, Adams v. State, 1999 WL 52902 (Tex. App. Dallas 1999)) and (overruling recognized by, Graham v. State, 1999 WL 298274 (Tex. App. Houston 14th Dist. 1999)) and (overruling recognized by, Fajardo v. State, 1999 WL 718538 (Tex. App. Houston 1st Dist. 1999)) and (overruling recognized by, Johnson v. State, 1999 WL 795746 (Tex. App. Houston 14th Dist. 1999)) and (overruling recog-nized by, Fare v. State, 1 S.W.3d 928 (Tex. App. Beaumont 1999)) and (overruling recognized by, Griffin v. State, 1999 WL 996987 (Tex. App. Houston 14th Dist. 1999)) and (overruling recognized by, Brown v. State, 2000 WL 816045 (Tex. App. Dallas 2000)).

n12 Werts v. State, 196 Ga. App. 452, 395 S.E.2d 922 (1990).

n13 Faust v. U.S., 163 U.S. 452, 16 S. Ct. 1112, 41 L. Ed. 224 (1896) ("Faust" and "Foust"); Guzman v. State, 3 Ark. App. 240, 625 S.W.2d 540 (1981) ("Orozco" and "Orozo"); Herring v. State, 239 Ga. 201, 236 S.E.2d 363 (1977) ("Herron" and "Herring"); State v. Laymon, 217 Neb. 464, 348 N.W.2d 902 (1984) ("Layman" and "Laymon"); Flanagan v. State, 620 S.W.2d 591 (Tex. Crim. App. 1981) ("Chatman" and "Chapman"); Mantis v. Resz, 5 S.W.3d 388 (Tex. App. Fort Worth 1999), reh'g overruled, (Dec. 9, 1999) ("Mantas" and "Mantis").

n14 Milbra v. Sloss-Sheffield Steel & Iron Co., 182 Ala. 622, 62 So. 176 (1913) ("Milbra" and "Milburn"); Woods v. State, 123 Ark. 111, 184 S.W. 409 (1916) ("Wood" and "Woods"); Boyd v. Boyd, 128 Iowa 699, 104 N.W. 798 (1905) ("Sheffey" and "Cheffey"); Thornily v. Prentice, 121 Iowa 89, 96 N.W. 728 (1903) ("William" and "Willis"); Schoenfeld v. Bourne, 159 Mich. 139, 123 N.W. 537 (1909) ("Dun-ton" and "Denton").

Related References: Application of doctrine of idem sonans or the like to substituted or constructive service of process, 45 A.L.R. 2d 1090 ß 4[b, c].


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ß 62 Prima facie application

Names that have the same pronunciation prima facie designate the same persons. n1 However, despite the prima facie ap-plication of the doctrine of idem sonans, the subsequent introduction of facts inconsistent with the truth of the assump-tion will shake the prima facie case. n2 Adjudicated cases determining certain names to be or not to be idem sonans apply only to the particular instance in which the determination was made, n3 and a reviewing court will refrain from disturbing a jury or trial court determination that names in question are idem sonans unless evidence shows that the names are patently incapable of being sounded the same or that the accused was misled to the accused's prejudice. n4 Thus, if the names are not idem sonans as a matter of law, then the question of the sufficiency of the evidence may be raised on ap-peal. n5

FOOTNOTES:

n1 McDavid v. State, 439 So. 2d 750 (Ala. Crim. App. 1983); Williams v. State, 364 So. 2d 717 (Ala. Crim. App. 1978).

n2 Robben v. Benson, 43 Cal. App. 204, 185 P. 200 (3d Dist. 1919); Rhodes v. State, 74 Fla. 230, 76 So. 776 (1917); King v. Slepka, 1944 OK 138, 194 Okla. 11, 146 P.2d 1002 (1944).

n3 Martin v. State, 541 S.W.2d 605 (Tex. Crim. App. 1976).

n4 Grant v. State, 568 S.W.2d 353 (Tex. Crim. App. 1978).

n5 Flanagan v. State, 620 S.W.2d 591 (Tex. Crim. App. 1981).


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ß 63 Questions of law and fact; Appeal

If, before a jury, a fact issue requiring the application of the rule of idem sonans is raised by testimony, the court, at the request of the defendant, should instruct the jury to resolve the issue. n1 Accordingly, the question of whether the doc-trine of idem sonans applies to the name of a person as set forth in a pleading so as to avoid a charge of variance is usu-ally one of fact for the jury. n2 Where, however, the issue is free from doubt, it may be determined by the court as a ques-tion of law. n3 If the variant spellings necessarily sound alike, the question is one of law, and if not, the question is one of fact. n4

Where there is no generally received English pronunciation of particular names as one and the same, and the difference in sound is not so slight as to be virtually imperceptible, the doctrine of idem sonans may not be applied without the aid of extrinsic evidence. n5 In such a case, whether the names are idem sonans becomes a question of fact, which must be referred to the jury. n6 The necessity for evidence as to pronunciation often arises in cases where the controversy pertains to the idem sonans of a name spelled according to a foreign language and a spelling in English based on its sound, or in cases where a name is spelled according to its local or common pronunciation instead of the correct mode of spelling it.

n7

If two names are patently incompatible of being sounded alike, a failure to request the submission of the issue for jury consideration will defeat any claim of variance on appeal. n8

FOOTNOTES:

n1 Smith v. State, 763 S.W.2d 836 (Tex. App. Dallas 1988), petition for discretionary review refused, (June 28, 1989).

n2 Evans v. State, 199 Ind. 55, 155 N.E. 203 (1927); Jackson v. State, 419 S.W.2d 370 (Tex. Crim. App. 1967).

n3 Evans v. State, 199 Ind. 55, 155 N.E. 203 (1927).

n4 State v. Alva, 18 N.M. 143, 134 P. 209 (1913).

n5 Buxton v. State, 40 Ala. App. 667, 122 So. 2d 151 (1960).

n6 Buxton v. State, 40 Ala. App. 667, 122 So. 2d 151 (1960).

n7 People v. Fick, 89 Cal. 144, 26 P. 759 (1891) (idem sonans of Chinese names would not be declared without evidence as to their identity of pronunciation).

n8 Farris v. State, 819 S.W.2d 490 (Tex. Crim. App. 1990) (overruled on other grounds by, Riley v. State, 889 S.W.2d 290 (Tex. Crim. App. 1993)) and (overruling on other grounds recognized by, Gilbert v. State, 904 S.W.2d 210 (Tex. App. Beaumont 1995)) and (overruling on other grounds recognized by, Richards v. State, 1995 WL 704738 (Tex. App. Houston 14th Dist. 1995)) and (overruling on other grounds

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recognized by, Mackvandian v. State, 1998 WL 751790 (Tex. App. Houston 14th Dist. 1998)) and (overruling on other grounds recognized by, Horton v. State, 986 S.W.2d 297 (Tex. App. Waco 1999)) and (overruling on other grounds recognized by, Adams v. State, 1999 WL 52902 (Tex. App. Dallas 1999)) and (overruling on other grounds recognized by, Graham v. State, 1999 WL 298274 (Tex. App. Houston 14th Dist. 1999)) and (overruling on other grounds recognized by, Fajardo v. State, 1999 WL 718538 (Tex. App. Houston 1st Dist. 1999)) and (overruling on other grounds recognized by, Johnson v. State, 1999 WL 795746 (Tex. App. Houston 14th Dist. 1999)) and (overruling on other grounds recognized by, Fare v. State, 1 S.W.3d 928 (Tex. App. Beaumont 1999)) and (overruling on other grounds recognized by, Griffin v. State, 1999 WL 996987 (Tex. App. Houston 14th Dist. 1999)) and (overruling on other grounds recognized by, Brown v. State, 2000 WL 816045 (Tex. App. Dallas 2000)).


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Name IV. Fictitious or Assumed Name

A. In General


ß 64 Generally

Since it is merely a custom for persons to bear the name of their parents, n1 in the absence of a statute or judicial adjudi-cation to the contrary, there is nothing in the law prohibiting a person from taking or assuming another name, so long as the person does not assume a name for the purpose of defrauding other persons through a mistake of identity. n2 It has been said that the use of fictitious names should not be judicially encouraged, because it may easily lend itself to fraud and thus be injurious to a public or private interest, especially interests of creditors or other interested parties; n3 although at common law, the use of an assumed name, especially one that is a more anglicized version of a real name, is not in and of itself fraud. n4

A contract entered into by a person under an assumed or fictitious name is valid. n5 Where a state does not require the registration of fictitious individual names, the question of what effect the use of a fictitious name has on the enforceabil-ity of a contract is of no consequence. n6 The law is chiefly concerned with the identity of the individual, and when that is ascertained and clearly established, the act will be binding on that individual and on others. n7

It is well settled that an assumed or fictitious name may be either a purely artificial name or a name that is or may be ap-plied to natural persons. n8 It is immaterial that there is a living person who bears the same assumed name. n9 Falsely as-suming the identity of a particular person, however, may constitute a criminal offense. n10 Also, the unauthorized use of a person's name, as by signing it to a letter, may, under some circumstances at least, be the basis of an action for damages. n11

Observation: There is no right, at common law or otherwise, to use false names in documents having legal effect. n12

FOOTNOTES:

n1 At to surnames, generally, see ß 2.

n2 U. S. v. Dunn, 564 F.2d 348 (9th Cir. 1977); U.S. v. Mount, 757 F.2d 1315 (D.C. Cir. 1985). It is not uncommon for theatrical people to continue to use their stage names both after marriage and after retirement from professional life. In re Erlanger's Estate, 145 Misc. 1, 259 N.Y.S. 610 (Sur. Ct. 1932).

Related References:Petition or application -- By husband and wife -- For change of surname -- To achieve business advantage of simpler name. 18A Am. Jur. Pleading and Practice Forms, Name ß 9. Petition or application -- For order compelling public official to file fictitious name certificate. 18A Am. Jur. Pleading and Practice Forms, Name ß 51.

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Order to show cause -- Why public official should not be required to file fictitious name certificate. 18A Am. Jur. Plead-ing and Practice Forms, Name ß 60. Order -- Directing public official to file fictitious name certificate. 18A Am. Jur. Pleading and Practice Forms, Name ß 61.

n3 Peak v. State, 240 Ind. 334, 163 N.E.2d 584 (1960).

n4 National Enterprises Corp. v. Reback, 219 A.D.2d 484, 631 N.Y.S.2d 161 (1st Dep't 1995).

n5 State v. Tinnin, 64 Utah 587, 232 P. 543, 43 A.L.R. 46 (1925).

n6 Telex Corp. v. Hamilton, 1978 OK 32, 576 P.2d 767 (Okla. 1978).

n7 Wherry v. Backelman, 126 Ind. App. 136, 130 N.E.2d 777 (1955); Sanders v. Sitton, 179 Kan. 118, 292 P.2d 1099 (1956). As to the use of fictitious name in warrants of arrest, see 5 Am. Jur. 2d, Arrest ß 28; in negotiable instruments, see 11 Am. Jur. 2d, Bills and Notes ß 60, 727, 732, 12 Am. Jur. 2d, Bills and Notes ßß 591, 593; in deeds, see 23 Am. Jur. 2d, Deeds ß 37; in forgery, see 36 Am. Jur. 2d, Forgery ß 11; by assignees of leases, see 49 Am. Jur. 2d, Landlord and Tenant ß 1086; in mortgages, see 54A Am. Jur. 2d, Mortgages ß 27; by attesting witnesses to a will, see 79 Am. Jur. 2d, Wills ß 3l6.


n8 Miller v. Thomason Supply Co., 107 S.W.2d 352 (Tex.Civ.App. -- Beaumont 1937); Coltun v. Getz, 97 Pa. Super. 591, 1930 WL 3451(1930).

n9 Gotthelf v. Shapiro, 136 A.D. 1, 120 N.Y.S. 210 (2d Dep't 1909).

n10 32 Am. Jur. 2d, False Personation ß 1.

n11 Crane v. Heine, 35 Cal. App. 466, 170 P. 433 (1st Dist. 1917).

Related References:Grant of right to use name -- General form. 13B Am. Jur. Legal Forms 2d, Name ß 182:33. Advertising. 13B Am. Jur. Legal Forms 2d, Name ß 182:34.

n12 Matter of Allison, 267 Ga. 638, 481 S.E.2d 211 (1997).

REFERENCE: West's Key Number Digest, Names [westkey]10, 17A.L.R. Digest: Assumed or Fictitious NamesA.L.R. Digest: Name ß 5A.L.R. Digest: Names13B Am. Jur. Legal Forms 2d, Name ßß 182:33, 182:34, 182:5518A Am. Jur. Pleading and Practice Forms, Name ßß 9, 51, 60, 61

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A. In General


ß 65 Designation of person by commonly known name

The object and purpose of describing a person by that person's name is to identify the person. n1 Thus, though there is some authority to the contrary, n2 it is a general rule that a person may be designated in legal proceedings by the name by which the person is commonly known, though this does not constitute the person's true name. n3 Moreover, it is not nec-essary that the person be known as well by the one name as by the other, and it is sufficient if the person is known by both names. n4 However, the regular use of an assumed name by which one is commonly known will not suffice to make it the "true name" required to be stated by a statute whose major purpose is to determine the past, as well as the present, identity of the individual. n5

FOOTNOTES:

n1 ß 64.

n2 De Renzes v. His Wife, 115 La. 675, 39 So. 805 (1905).

n3 U. S. v. Dunn, 564 F.2d 348 (9th Cir. 1977); People v. Mellon, 171 Misc. 171, 11 N.Y.S.2d 786 (Gen. Sess. 1939).

n4 Presley v. Wilson, 125 S.W.2d 654 (Tex. Civ. App. Dallas 1939), writ dismissed, judgment correct.


n5 In re Faith's Application, 22 N.J. Misc. 412, 39 A.2d 638 (C.P. 1944).

REFERENCE: West's Key Number Digest, Names [westkey]10, 17A.L.R. Digest: Assumed or Fictitious NamesA.L.R. Digest: Name ß 5A.L.R. Digest: Names13B Am. Jur. Legal Forms 2d, Name ßß 182:33, 182:34, 182:5518A Am. Jur. Pleading and Practice Forms, Name ßß 9, 51, 60, 61

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B. Doing Business Under Fictitious or Assumed Name 1. In General


ß 66 Generally

As a general rule, unless prohibited by statute, an individual or partnership may legally transact business under an as-sumed or fictitious name, provided the purpose for so doing is not a fraudulent design or intent to injure others. n1 Trans-actions and contracts so entered into under an assumed or fictitious name are generally held to be valid and enforceable.

n2 So, for example, a grantee is not legally barred from taking title to property under an unregistered assumed business name where no provision of state law forbids a grantee from doing business under an assumed name without formally registering the name. n3

FOOTNOTES:

n1 U. S. v. Dunn, 564 F.2d 348 (9th Cir. 1977). As to the applicability of fictitious name statutes to partnerships, see 59A Am. Jur. 2d, Partnership ßß 64 to 68.

Related References:Construction and effect of statute as to doing business under an assumed or fictitious name or designation not showing the names of the persons interested, 42 A.L.R. 2d 516 ß 1. Complaint, petition or declaration -- Allegation -- Individual plaintiff doing business under fictitious name. 18A Am. Jur. Pleading and Practice Forms, Name ß 50.

n2 State v. Tinnin, 64 Utah 587, 232 P. 543, 43 A.L.R. 46 (1925). As to the designation or description of a party to a contract, generally, see 17A Am. Jur. 2d, Contracts ßß 422, 423.

n3 Roeckl v. F.D.I.C., 885 P.2d 1067 (Alaska 1994).

REFERENCE: West's Key Number Digest, Names [westkey]10, 17A.L.R. Digest: Assumed or Fictitious NamesA.L.R. Digest: Name ß 5A.L.R. Digest: Names13B Am. Jur. Legal Forms 2d, Name ßß 182:14 to 182:18, 182:20, 182:2518A Am. Jur. Pleading and Practice Forms, Name ßß 50, 52, 54, 55, 57 to 59

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ß 67 Statutory regulation

Several statutes have been enacted that regulate the doing of business under a fictitious or assumed name. n1 In some states the fictitious name statute permits, rather than requires, the registration of assumed business names. n2 Some ficti-tious name statutes provide that each party doing business under an assumed name must file an assumed named certifi-cate in a county where the party is doing business; otherwise, the party cannot maintain suit in state court under that name. n3 In other states, a party operating under an assumed name, without registering the name under an assumed name statute, may sue and be sued. n4

Caution: Generally, compliance with the terms of a fictitious-name statute does not confer an exclusive right to use a so-registered name as a trade name, and the mere registration of a fictitious name gives no independent right to use the assumed name. n5

FOOTNOTES:

n1 Brad Associates v. Nevada Federal Financial Corp., 109 Nev. 145, 848 P.2d 1064 (1993); Lighthouse Church of Cloverleaf v. Texas Bank, 889 S.W.2d 595, 25 U.C.C. Rep. Serv. 2d 1292 (Tex. App. Houston 14th Dist. 1994), reh'g overruled, (Dec. 8, 1994) and writ denied, (May 4, 1995). As to the purpose and construction of such statutes, see ßß 68, 69.

Related References:Construction and effect of statute as to doing business under an assumed or fictitious name or designation not showing the names of the persons interested, 42 A.L.R. 2d 516. Form drafting guide -- Checklist -- Matters to be considered when drafting certificates in connection with conduct of business under fictitious or assumed name. 13B Am. Jur. Legal Forms 2d, Name ß 182:14. Application -- Conduct of business under fictitious or assumed name -- General form. 13B Am. Jur. Legal Forms 2d, Name ß 182:15. Petition or application -- To register fictitious name or particular business. 18A Am. Jur. Pleading and Practice Forms, Name ß 52.

n2 Roeckl v. F.D.I.C., 885 P.2d 1067 (Alaska 1994).

n3 Lighthouse Church of Cloverleaf v. Texas Bank, 889 S.W.2d 595, 25 U.C.C. Rep. Serv. 2d 1292 (Tex. App. Houston 14th Dist. 1994), reh'g overruled, (Dec. 8, 1994) and writ denied, (May 4, 1995).

Page 116

Related References:Answer -- Defense -- Failure to comply with fictitious name statute -- Lack of capacity to sue. 18A Am. Jur. Pleading and Practice Forms, Name ß 57.

n4 Thompson v. Cadillac, 187 Ill. App. 3d 104, 135 Ill. Dec. 73, 543 N.E.2d 308 (2d Dist. 1989).

n5 Stalnaker v. Stalnaker, 180 W. Va. 679, 379 S.E.2d 401 (1989). A plaintiff's filing of a statement of intent to do business under an assumed name did not give it exclusive right to the name under Maine law. Diagnostic Marketing Intern., Inc. v. Diamed, Inc., 707 F. Supp. 50 (D. Me. 1989).


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ß 68 Purpose

The object or purpose of statutes that regulates the doing of business under a fictitious or assumed name is, in general, to protect the public by giving notice or information as to the persons with whom they deal n1 and to afford protection against fraud and deceit. n2 Fictitious name statutes are also intended for the protection of creditors. n3 The class of per-sons a fictitious name statute is designed to protect are parties to business transactions. n4 A statute requiring disclosure by registration of the names and locations of persons doing business under an assumed name is not intended to protect private parties' interests in the use of their business names, despite the incidental benefit afforded to the registrants of the particular names; it does not grant private parties the remedy of an injunction to prohibit statutory violations that im-pinge upon their exclusive rights in registered business names. n5 In some jurisdictions, such statutes have been regarded as intended for the protection of those who extend credit to the person or firm within the statute and not to persons who receive credit from such individuals or partnerships. n6

FOOTNOTES:

n1 Brad Associates v. Nevada Federal Financial Corp., 109 Nev. 145, 848 P.2d 1064 (1993).

n2 Photo & Sound Co. v. Corvallis, 291 Or. 105, 628 P.2d 733 (1981).

Related References:Construction and effect of statute as to doing business under an assumed or fictitious name or designation not showing the names of the persons interested, 42 A.L.R. 2d 516 ß 3.

n3 Stalnaker v. Stalnaker, 180 W. Va. 679, 379 S.E.2d 401 (1989).

n4 Hanten v. Jacobs, 684 S.W.2d 433 (Mo. Ct. App. E.D. 1984).

n5 Photo & Sound Co. v. Corvallis, 291 Or. 105, 628 P.2d 733 (1981).

n6 Laliberte v. Wilkins, 30 Wash. App. 782, 638 P.2d 596 (Div. 3 1981).


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ß 69 Construction

Statutes regulating the doing of business under an assumed name are to be strictly construed, keeping in view, of course, their intended purpose; the courts will not, by a refined and technical interpretation, defeat the legislative will where the purpose can be accomplished by a fair construction of the statutes; nor will they, by indulging in a liberal interpretation, extend them so as to cover cases that are not clearly within the statutory provisions. n1 The word "business," in a statute requiring registration of a person doing business in a name other than the person's own, implies an employment or occu-pation that is of a continuing nature. n2 Thus, a single or isolated transaction, such as advertising on the part of one con-ducting an employment agency, even if the advertisement is under a name other than the real name of the party conduct-ing the business, n3 does not constitute "doing business," under the name thus used, within the meaning of the statute. n4 However, a defendant's solicitation through newspaper advertisements of orders accompanied by guaranteed payments constituted the transaction of business under a fictitious name statute that requires the filing of a certificate of business operated under an assumed name, even though the statute does not specify when the certificate was required to be filed.

n5

Practice Guide: Whether an advertisement in a newspaper constitutes transacting business under a fictitious name statute is a question of fact for the jury, but whether certain conduct violates a certain statute is a question of law to be decided by the court. n6

The operation of a business by the owner in the owner's own name with the addition of the words "auto sales" following the owner's name is not a violation of a statute prohibiting the transaction of business under a fictitious name, which was defined as being "other than the true name of such person." n7

FOOTNOTES:

n1 Caserta v. Manhasset Real Estate, Inc., 201 N.Y.S.2d 355 (Sup 1960); Keller v. Lonsdale, 216 Or. 339, 339 P.2d 112 (1959) (this rule of strict, rather than liberal, interpretation arises from the facts that the statutes are in derogation of the common law and that they are, for the most part, of a penal nature); Caruso v. Local Union No. 690 of Intern. Broth. of Teamsters, Chauffeurs, Warehousemen and Helpers of America, 33 Wash. App. 201, 653 P.2d 638 (Div. 3 1982), review granted, 99 Wash. 2d 1005, 676 P.2d 963 (1983) and judgment rev'd on other grounds, 100 Wash. 2d 343, 670 P.2d 240 (1983).


n2 Johnson v. Cass & Emerson, 91 Vt. 103, 99 A. 633 (1917).

n3 Johnson v. Cass & Emerson, 91 Vt. 103, 99 A. 633 (1917).

Page 120

n4 El Ranco, Inc. v. First Nat. Bank of Nev., 406 F.2d 1205 (9th Cir. 1968) (applying Nevada law); American Sav. & Loan Ass'n v. Stan-ton-Cudahy Lumber Co., 85 Nev. 350, 455 P.2d 39 (1969).

n5 People v. Wallace, 77 Ill. App. 3d 979, 33 Ill. Dec. 687, 397 N.E.2d 20 (5th Dist. 1979).

Related References:Fictitious or assumed name certificate. 13A Am. Jur. Legal Forms 2d, Name ßß 182:16 to 182:18.


n7 Williams v. Nuckolls, 644 S.W.2d 670 (Mo. Ct. App. E.D. 1982).


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ß 70 Form and content

Under a statute requiring a certificate to be executed and acknowledged by the party or parties conducting, intending to conduct, or having an interest in such business, it has been held insufficient if only one of the parties executes and ac-knowledges the certificate. n1 There is sufficient compliance with a statute regulating the doing of business under an as-sumed or fictitious name if the certificate prescribed therein is signed with the name by which the person doing business is usually known, so that the person may be easily identified, even though the initials are not those of the person's real Christian name; n2 the object of such statutes is that public notice be given and a public record made of the individual members of such business with such definiteness and particularly that those dealing with them may at all times know the individuals with whom they are dealing. n3 However, under a statute requiring an affidavit setting forth the "full Christian and surname" and addresses, in cases where persons are doing business as partners under any name other than the personal name or names of the members, an affidavit has been held insufficient that merely gives the initials of the owner of a business carried on under a fictitious name. n4

FOOTNOTES:

n1 Balfour v. Knight, 86 Or. 165, 167 P. 484 (1917). For a checklist of features to incorporate when drafting a fictitious name certificate, see ß 67.

Related References:Fictitious or assumed name certificate -- By partners. 13B Am. Jur. Legal Forms 2d, Name ß 182:17. Certificate -- Conduct of business under name of deceased person. 13B Am. Jur. Legal Forms 2d, Name ß 182:20.

n2 Louisville Planing Mill Co. v. Liberty Blowpipe Works, 201 Ky. 724, 258 S.W. 304 (1924).

n3 Meads v. Lasar, 92 Cal. 221, 28 P. 935 (1891).

Related References:Fictitious or assumed name certificate -- By individual. 13B Am. Jur. Legal Forms 2d, Name ß 182:16. Affidavit -- Individual conducting business under assumed name. 18A Am. Jur. Pleading and Practice Forms, Name ß 54.

Page 122

n4 Wallace Plumbing Co. v. Dillon, 71 Colo. 224, 205 P. 950 (1922).


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ß 71 Filing

Whether the publication of a certificate or its filing is first in point of time has been held immaterial, under the provision of a statute requiring persons transacting business under a fictitious name to file a certificate stating, among other things, the name, and to publish the same for a certain time. n1

A fictitious name statute requiring that a specified certificate be filed in the office of the county clerk in the county "in which such person conducted or transacted or intended to conduct or transact business" is not unconstitutionally vague for failing to state when the required certificate must be filed, because the statute clearly contemplates the possibility of filing before the transaction of any business. n2

FOOTNOTES:

n1 Bank & Trust Co. of Central California v. Gearhart, 45 Cal. App. 421, 187 P. 989 (1st Dist. 1920).

Related References:Affidavit of publication -- Original or renewal fictitious or assumed name certificate. 13B Am. Jur. Legal Forms 2d, Name ß 182:25. Affidavit -- Publication of fictitious name certificate. 18A Am. Jur. Pleading and Practice Forms, Name ß 55.



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B. Doing Business Under Fictitious or Assumed Name 2. Applicability


ß 72 Transactions prior to statute

The applicability of assumed or fictitious name statutes to contracts entered into prior to the enactment of such statutes depends primarily upon the terms of the legislation. Thus, a statute providing that no person shall "hereafter" use or file a certificate for the use of any family name, unless the same is the true or real name of the person or one of the persons conducting or intending to conduct the business, is not retrospective and does not apply to one who theretofore com-plied with prior laws requiring the filing of a certificate on the part of those doing business under an assumed or ficti-tious name. n1 Further, where a statute provides that no contracts entered into by persons or firms without compliance with the trade name act in force at the time of making the contract should be illegal and further expressly validates such contracts as against any such objection and stipulates that no suit or action then pending or later instituted by such per-sons or firms, whether sounding in contract or tort, should be defeated because of such failure to register, it has been held that such a statute applies to any contract made before its enactment by any person or partnership conducting or transacting business without registration and that such contract is not invalid or illegal on the ground that such firm or partnership has failed to register. n2

FOOTNOTES:

n1 Fawcett v. Andrews, 203 A.D. 591, 197 N.Y.S. 208 (1st Dep't 1922).


n2 Walker v. Abbot, 57 Ga. App. 381, 195 S.E. 450 (1938).


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ß 73 Names or designations within statute

Under a statute requiring individuals transacting business under a fictitious name, or a designation purporting to be a firm name, to file a certificate, the certificate is not required if the name under which the business is transacted fairly discloses the name of the individual, or of each partner, as the case may be. n1 The usual form of a partnership name is not an assumed or fictitious name within the meaning of any of the statutes. n2 Where the designation under which a business is being conducted consists of the surname of the proprietor or proprietors, with the addition of the words or abbreviations "and Company" or "& Co.," prefaced by a word descriptive of the nature of the business, the name is not assumed or fictitious within the meaning of the statute, n3 nor is a surname followed by "& Son" an assumed name. n4

Rules established by some courts as to the effect of the use of a particular suffix to a name, though not completely con-tra to the foregoing holdings, would seem to depend on whether a partnership or a sole proprietor is involved. n5

A person who has used an assumed name for a number of years, without being known or transacting business in any other name, even though the person has not obtained a decree of court changing his or her name, is not using a fictitious name within the meaning of a statute. n6

FOOTNOTES:

n1 Vagim v. Brown, 63 Cal. App. 2d 504, 146 P.2d 923 (4th Dist. 1944); Johnston v. Ellis, 49 Idaho 1, 285 P. 1015 (1930).

Related References:Fictitious or assumed name certificate -- By individual. 13B Am. Jur. Legal Forms 2d, Name ß 182:16. Fictitious or assumed name certificate -- By partnership. 13B Am. Jur. Legal Forms 2d, Name ß 182:17.

n2 59A Am. Jur. 2d, Partnership ß 67.

n3 Levelon Builders, Inc. v. Lynn, 194 Cal. App. 2d 657, 15 Cal. Rptr. 582 (4th Dist. 1961); Miller v. Titeca, 192 Mont. 357, 628 P.2d 670 (1981).

n4 Com. v. Richey, 171 Ky. 330, 188 S.W. 397 (1916); Winget v. Grand Trunk Western Ry. Co., 210 Mich. 100, 177 N.W. 273 (1920).

Related References:

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Construction and effect of statute as to doing business under an assumed or fictitious name or designation not showing the names of the persons interested, 42 A.L.R. 2d 516 ß 30.

n5 Wetenhall v. Chas S. Mabrey Const. Co., 209 Cal. 293, 286 P. 1015 (1930); Robinovitz v. Hamill, 1914 OK 625, 44 Okla. 437, 144 P. 1024 (1914).

n6 Ray v. American Photo Player Co., 46 Cal. App. 311, 189 P. 130 (1st Dist. 1920).


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ß 74 Foreign concerns; interstate transactions and commerce

Statutory provisions relating to the doing of business under assumed or fictitious names, or designations not showing the names of the partners, do not apply to transactions constituting interstate commerce or to nonresidents of the state. n1 Thus, solicitation and procuring, by an agent in a state having statutes that regulate the doing of business under a ficti-tious or assumed name, of orders for goods that were to be shipped and which were shipped from another state by the agent's principal, whose principal place of business was in a state other than the one in which the order was solicited, does not constitute doing business in the state in which the order was procured within the meaning of such statutes. n2

FOOTNOTES:

n1 Green v. Nelson, 120 Utah 155, 232 P.2d 776 (1951).


n2 Doll v. Rodgers, 98 Colo. 36, 52 P.2d 1147 (1935).


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ß 75 Tort actions

Generally, though there is some authority to the contrary, n1 fictitious or assumed name statutes are inapplicable to tort actions, n2 because it has been recognized that the purpose of such statutes is to provide notice to those engaging in trans-actions with businesses operating under assumed names and in that such statutes, in derogation of common law, are lim-ited to the purpose for which they are intended. n3 Such actions, it is held, do not fall within the statutory meaning of a "transaction." n4 Matters of fair dealing, fraud, enforcement of business agreements, and credit are not relevant consider-ations in the existence of a cause of action for personal injuries. n5 An action in which it was claimed that the defendant had obtained merchandise from the plaintiff by fraud and deceit was a tort action to which the assumed-name statute was inapplicable. n6

The lack of causation between the failure to comply with a fictitious name statute and an action sounding in tort renders such noncompliance insufficient to support a theory of negligence per se. n7

FOOTNOTES:

n1 Sanguin v. Wallace, 1951 OK 181, 205 Okla. 28, 234 P.2d 394, 42 A.L.R.2d 511 (1951).

n2 Medsen Development, Inc. v. Bryant, 376 So. 2d 423 (Fla. Dist. Ct. App. 3d Dist. 1979); Matthews v. Newspapers Inc., 319 S.W.2d 177 (Tex. Civ. App. Austin 1958), writ granted, (Apr. 22, 1959) and judgment rev'd on other grounds, 161 Tex. 284, 339 S.W.2d 890, 100 A.L.R.2d 218 (1960). As to the effect of a partnership's noncompliance with a fictitious name statute registration requirement on the bringing of tort actions, see 59A Am. Jur. 2d, Partnership ß 704.


n3 Caruso v. Local Union No. 690 of Intern. Broth. of Teamsters, Chauffeurs, Warehousemen and Helpers of America, 33 Wash. App. 201, 653 P.2d 638 (Div. 3 1982), review granted, 99 Wash. 2d 1005, 676 P.2d 963 (1983) and judgment rev'd on other grounds, 100 Wash. 2d 343, 670 P.2d 240 (1983).

n4 Thompson v. Byers, 116 Cal. App. 214, 2 P.2d 496 (4th Dist. 1931); Caruso v. Local Union No. 690 of Intern. Broth. of Teamsters, Chauffeurs, Warehousemen and Helpers of America, 33 Wash. App. 201, 653 P.2d 638 (Div. 3 1982), review granted, 99 Wash. 2d 1005, 676 P.2d 963 (1983) and judgment rev'd on other grounds, 100 Wash. 2d 343, 670 P.2d 240 (1983) (libel and slander were not based on a business transaction as contemplated by the statute requiring registration of the business under an assumed name before the maintenance of any action).

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n5 Hanten v. Jacobs, 684 S.W.2d 433 (Mo. Ct. App. E.D. 1984).

n6 Phillip v. Post, 308 Mich. 609, 14 N.W.2d 513 (1944).

n7 Williams v. Nuckolls, 644 S.W.2d 670 (Mo. Ct. App. E.D. 1982).


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B. Doing Business Under Fictitious or Assumed Name 3. Validity and Enforceability of Contracts Where Statute Is Violated


ß 76 Under statutes imposing penalty

Contracts or transactions entered into by individuals or partnerships that have failed to comply with statutes relating to the doing of business under assumed or fictitious names or designations not showing the names of the partners are gen-erally not invalid and unenforceable by such parties, n1 at least where no harm or injury has resulted to the other party from such noncompliance. n2 Generally, the infliction of a statutory penalty is sufficient to accomplish the legislative purpose of requiring registration, and it has been held that legislatures do not intend the additional penalty of voiding a contract entered into by someone who has failed to comply with such a statute. n3

The position has been taken that statutory provisions relating to the transaction of business under an assumed name, or a designation not showing the names of the partners, should not be so applied as to preclude recovery by innocent parties on contracts or transactions that have been entered into with persons who have not complied with the statutes, whatever might be the effect of noncompliance to prevent recovery by the latter. n4

FOOTNOTES:

n1 MAS Nursing, Inc. v. Burke, 523 So. 2d 909 (La. Ct. App. 3d Cir. 1988), writ denied, 530 So. 2d 570 (La. 1988); Phillips v. Hoke Const., Inc., 834 S.W.2d 785 (Mo. Ct. App. S.D. 1992). A debtor under a contract bearing only the creditor's trade name may not use a trade name registry statute as a defense to the creditor's claim for payment under the contract. Cummings v. Injury Hotline, 648 So. 2d 3 (La. Ct. App. 2d Cir. 1994). Contracts entered into under a fictitious name are valid in themselves, but the act of contracting without registration in compliance with ficti-tious name statute constitutes a misdemeanor. Matter of Natale, 527 S.W.2d 402 (Mo. Ct. App. 1975). As to the effect on contract actions, generally, where a partnership fails to comply with a fictitious name statute registration requirement, see 59A Am. Jur. 2d, Partnership ß 704.


n2 Kusnetzky v. Security Ins. Co., 313 Mo. 143, 281 S.W. 47, 45 A.L.R. 189 (1926).


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n3 Platt v. Locke, 11 Utah 2d 273, 358 P.2d 95 (1961).

n4 Bank of America Nat. Trust & Sav. Ass'n v. National Funding Corp., 45 Cal. App. 2d 320, 114 P.2d 49 (4th Dist. 1941).

Related References:Construction and effect of statute as to doing business under an assumed or fictitious name or designation not showing the names of the persons interested, 42 A.L.R. 2d 516 ß 11. Answer -- Failure to comply with fictitious name statute -- Lack of capacity to sue. 18A Am. Jur. Pleading and Practice Forms, Name ß 57.


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ß 77 Under statutes forbidding suits without compliance; time of compliance

Fictitious name statutes, instead of imposing a penalty for noncompliance therewith, sometimes forbid the maintenance of an action on a contract or transaction made under a fictitious name until the requirements of the statute have been ful-filled. n1 Though some courts have indicated that compliance with the statute is an absolute prerequisite to the action, n2 it has frequently been held that forbidding a party to "maintain" an action does not mean that the action cannot be com-menced, n3 as in the case where a business name fairly discloses the true names of all persons interested in the business, n4

and it is sufficient if the plaintiff complies with the statute at any time before trial n5 or after the bringing of the action but prior to the time of final judgment. n6 Moreover, the objection that the plaintiff cannot maintain the action because of noncompliance with the statute is not jurisdictional but is a matter of abatement. n7

FOOTNOTES:

n1 Mellgren Plumbing Shop, Inc. v. Lewis & Tinsley, Inc., 77 S.D. 193, 90 N.W.2d 78 (1958); Lighthouse Church of Cloverleaf v. Texas Bank, 889 S.W.2d 595, 25 U.C.C. Rep. Serv. 2d 1292 (Tex. App. Houston 14th Dist. 1994), reh'g overruled, (Dec. 8, 1994) and writ denied, (May 4, 1995); Seattle Ass'n of Credit Men v. Green, 45 Wash. 2d 139, 273 P.2d 513 (1954).

Related References:Construction and effect of statute as to doing business under an assumed or fictitious name or designation not showing the names of the persons interested, 42 A.L.R. 2d 516 ß 7. Answer -- Defense -- Failure to comply with fictitious name statute -- Lack of capacity to sue. 18A Am. Jur. Pleading and Practice Forms, Name ß 57.

n2 Gallafent v. Tucker, 48 Idaho 240, 281 P. 375 (1929); Smith v. Erla, 317 Mich. 109, 26 N.W.2d 728 (1947).


n3 Nowels v. Ketchersid Music, Inc., 80 Idaho 486, 333 P.2d 869 (1958); Lewis v. Root, 53 Wash. 2d 781, 337 P.2d 52 (1959).

n4 Miller v. Titeca, 192 Mont. 357, 628 P.2d 670 (1981); Laliberte v. Wilkins, 30 Wash. App. 782, 638 P.2d 596 (Div. 3 1981).

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n5 Kadota Fig Ass'n of Producers v. Case-Swayne Co., 73 Cal. App. 2d 796, 167 P.2d 518 (3d Dist. 1946); Coffin v. Fidelity-Philadelphia Trust Co., 374 Pa. 378, 97 A.2d 857, 39 A.L.R.2d 625 (1953).


n6 Bain v. Boykin, 180 Va. 259, 23 S.E.2d 127 (1942). A plaintiff's motion to strike defenses was granted with leave given to the defendants to comply with the Florida fictitious name statute, where the defendants were found to have violated that statute. Sparks v. Porter, 270 F. Supp. 953 (N.D. Fla. 1967).

n7 Tyrone v. Kelley, 9 Cal. 3d 1, 106 Cal. Rptr. 761, 507 P.2d 65 (1973); Campbell v. Graham, 144 Colo. 532, 357 P.2d 366, 94 A.L.R.2d 1165 (1960).


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ß 78 Contracts entered into under real name

If the contract or transactions are entered into in the real name or names of the person or persons who it is claimed are doing business in violation of statutes relating to fictitious names, or designations not showing the names of the part-ners, they may be enforced. n1 In other words, there must be a violation of the statute in the particular contract or transac-tion; if the person or partnership, who may be within (but has not complied with) the statute, contracts not in the ficti-tious name or partnership designation, but individually, the contract or transaction is not rendered invalid and unen-forceable by reason of such noncompliance. n2

FOOTNOTES:

n1 Stewart v. Darby Banking Co., 183 Ga. 888, 190 S.E. 28 (1937); June v. Vibra Screw Feeders, Inc., 6 Mich. App. 484, 149 N.W.2d 480 (1967).

n2 Stewart v. Darby Banking Co., 183 Ga. 888, 190 S.E. 28 (1937); June v. Vibra Screw Feeders, Inc., 6 Mich. App. 484, 149 N.W.2d 480 (1967). A certificate of doing business under a fictitious name need not be filed where partners did business under a designation containing both of their names in full. In re George & John Hurt, 129 F. Supp. 94 (S.D. Cal. 1955). As to the effect on contract actions, generally, where a partnership fails to comply with a fictitious name statute registration requirement, see 59A Am. Jur. 2d, Partnership ß 704.



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B. Doing Business Under Fictitious or Assumed Name 4. Pleading and Practice


ß 79 Generally

Compliance with statutory provisions relating to the doing of business under assumed or fictitious names, or designa-tions not showing the names of the partners, need not be alleged by the plaintiff. n1 Noncompliance is a matter of defense in abatement of the action, n2 and an objection to the legal capacity of the plaintiff to sue, based on this ground, must be raised in some appropriate way, as by demurrer if the incapacity appears on the face of the complaint or petition, n3 by answer, n4 or by proper and timely motion. n5 Otherwise, the objection will be deemed waived. n6

In accordance with the above rule that noncompliance with the statute is an affirmative defense, the burden of proof of noncompliance is on the defendant. n7 Thus, where the defendant relies upon the fact that the plaintiff is a partnership doing business under a fictitious name without having complied with the statute, but offers no proof that plaintiff has failed to comply therewith, the law will presume that plaintiff has complied. n8

In some situations, a defendant's failure to register under a fictitious name statute may be legally irrelevant, as in a per-sonal injury action where although the defendants may have employed what were arguably fictitious names in various aspects of their business dealings the plaintiff alleged and demonstrated that the defendants had committed the allegedly tortious acts for which they were sued while acting through appropriate corporate or individual capacities in which they were specifically made parties defendant. n9

FOOTNOTES:

n1 Caruso v. Local Union No. 690 of Intern. Broth. of Teamsters, Chauffeurs, Warehousemen and Helpers of America, 33 Wash. App. 201, 653 P.2d 638 (Div. 3 1982), review granted, 99 Wash. 2d 1005, 676 P.2d 963 (1983) and judgment rev'd on other grounds, 100 Wash. 2d 343, 670 P.2d 240 (1983).

n2 Rudneck v. Southern California Metal & Rubber Co., 184 Cal. 274, 193 P. 775 (1920). The refusal of the trial court to strike out a reference in the plaintiff's petition to the fictitious name under which their business is operated is not error, since striking out the reference is of no legal benefit to the plaintiffs, because of the right of defendants in any event to raise in their answer the operation of the partnership under a fictitious name. Sanguin v. Wallace, 1951 OK 181, 205 Okla. 28, 234 P.2d 394, 42 A.L.R.2d 511 (1951).

n3 J. C. Wattenbarger & Sons v. Sanders, 216 Cal. App. 2d 495, 30 Cal. Rptr. 910 (5th Dist. 1963); Fourth Nat. Bank of Tulsa v. Cochran, 1956 OK 126, 298 P.2d 784 (Okla. 1956).

n4 Newcastle Drilling Co. v. Thorndal, 105 N.W.2d 332 (N.D. 1960); Sanguin v. Wallace, 1951 OK 181, 205 Okla. 28, 234 P.2d 394, 42 A.L.R.2d 511 (1951).

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Related References:Answer -- Defense -- Failure to comply with fictitious name statute -- Lack of capacity to sue. 18A Am. Jur. Pleading and Practice Forms, Name ßß 57 to 59.

n5 Newcastle Drilling Co. v. Thorndal, 105 N.W.2d 332 (N.D. 1960). Consideration before trial, on a motion to dismiss, is proper on the issue of incapacity to maintain an action because of failure to comply with the statute requiring partners doing business under a fictitious name to file a certificate stating the names of the partners. Sanguin v. Wallace, 1951 OK 181, 205 Okla. 28, 234 P.2d 394, 42 A.L.R.2d 511 (1951).

n6 Tyrone v. Kelley, 21 Cal. App. 3d 817, 99 Cal. Rptr. 290 (1st Dist. 1971), reh'g granted, opinion not citable, (Jan. 4, 1972) and opinion vacated on other grounds, 9 Cal. 3d 1, 106 Cal. Rptr. 761, 507 P.2d 65 (1973); Clifford Ragsdale, Inc. v. Morganti, Inc., 356 So. 2d 1321 (Fla. Dist. Ct. App. 4th Dist. 1978).


n7 Fraser v. Collier Const. Co., 305 Mich. 1, 8 N.W.2d 889 (1943); Newcastle Drilling Co. v. Thorndal, 105 N.W.2d 332 (N.D. 1960).

Related References:Construction and effect of statute as to doing business under an assumed or fictitious name or designation not showing the names of the persons interested, 42 A.L.R. 2d 516 ß 34. Proof of Liability for Entity's Failure to Acquire Fictitious Name Certification, 56 Am. Jur. Proof of Facts 3d 103.

n8 Fourth Nat. Bank of Tulsa v. Cochran, 1956 OK 126, 298 P.2d 784 (Okla. 1956).

n9 Medsen Development, Inc. v. Bryant, 376 So. 2d 423 (Fla. Dist. Ct. App. 3d Dist. 1979).

SUPPLEMENT:

CasesThe statute of limitations will be tolled in mis-identification cases if there are two separate, but related, entities that use a similar trade name and the correct entity had notice of the suit and was not misled or disadvantaged by the mistake. Flour Bluff Independent School Dist. v. Bass, 133 S.W.3d 272 (Tex. 2004).


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