Trial Court Correctly Granted Minor’s Petition To Change His Name
A 14-year-old’s petition to change his surname was properly granted by the trial court even though the statutory requirements for a name change were not met, the Michigan Court of Appeals has ruled.
In the case of In re Warshefski (Docket No. 346965), the respondent-mother claimed the trial court should not have granted her son’s petition to change his surname because:
The trial court did not have subject-matter jurisdiction to rule on a common law name change.
The trial court did not have the authority to sua sponte grant the petition after finding that the requirements of MCL 711.1 were not met.
The Court of Appeals rejected the respondent’s arguments in a published and binding decision.
“Because MCL 711.1 does not abrogate or supersede the common law, the trial court has subject matter jurisdiction to hear and grant petitions for a name change under both MCL 711.1 and the common law,” the Court of Appeals said.
In addition, the Court of Appeals said the trial court correctly held that MCL 711.1 was inapplicable because, at the time the petition was filed, the respondent was providing support for the minor. “The trial court next found, based on prior decisions by this Court, that statutory enactments such as MCL 711.1 did not abrogate common law rights to a name change. … [B]y employing the best interest test in reaching its decision to grant the petition, the trial court followed prior rulings of this Court. On this record, we find no legal error.”
Judge Stephen L. Borrello wrote the opinion, joined by Judge Kirsten Frank Kelly and Judge Deborah A. Servitto.
Petition Filed
In September 2018, AR Warshefski filed a petition to change his surname with the St. Clair County Circuit Court. The respondent filed an answer to the petition, requesting that the trial court deny it.
At a hearing on the petition, AR explained that he wanted to change his surname because: 1) the family with whom he maintained a relationship has the surname “Piechotte,” 2) he lives with his father, Joseph Piechotte, and 3) he does not speak to the respondent. AR also indicated that he wanted to have the same name as his half siblings because he was the only one in his household with a different last name.
After reviewing the petition, the trial court appointed a lawyer guardian ad litem for AR. The lawyer guardian ad litem testified that AR was 14 years old at the time and his decision appeared to be “logical and genuine.”
Although the trial court found that the statutory basis for a name change set forth in MCL 711.1 had not been established, it ultimately granted the petition. In making its ruling, the trial court stated:
“I agree that the statutory basis under the applicable statute, MCL 333.28721 has not been established. There has been no contact whatsoever between Ms. Warshefski and [AR Warshefski] for apparently the last three years. But the second part of the test that the Legislature has deemed appropriate is for them to say that also there would have to be a failure for her to provide regular and substantial support, or to comply with the support order. The testimony from both these parties at the time I saw everybody the last time was that she had been supporting [AR Warshefski], paying her child support the way it’s required. And so the statutory basis is not established.”
“However, in Michigan there are common law rights. There is caselaw that recognizes that this statute does not eliminate the common law with regard to name changes. So this Court also has the ability to make a name change if I believe that it would be in [AR Warshefski’s] best interest for me to do so.”
The respondent appealed.
Subject-Matter Jurisdiction
The respondent argued on appeal that the trial court’s subject-matter jurisdiction was limited to the specific requirements of MCL 711.1 and, therefore, the trial court did not have subject-matter jurisdiction to rule on a common law name change.
The Court of Appeals disagreed, noting the respondent did not cite any authority to support this argument. Despite this fact, the panel addressed the respondent’s argument, noting that MCL 600.605 vests subject-matter jurisdiction in the state circuit courts as follows: “Circuit courts have original jurisdiction to hear and determine all civil claims and remedies, except where exclusive jurisdiction is given in the constitution or by statute to some other court or where the circuit courts are denied jurisdiction by the constitution or statutes of this state.”
The Court of Appeals further explained that MCL 600.1021(1)(d) grants the family division of the circuit court with “sole and exclusive jurisdiction” in cases involving a name change. And specifically, MCL 711.1(1) gives the family division of the circuit court the authority to enter an order to change a person’s name, the Court of Appeals observed.
Citing Usitalo v Landon, 299 Mich App 222 (2012), the Court of Appeals noted that the respondent presented arguments similar to those in Landon, including that because MCL 600.1021(1)(d) gives the family division jurisdiction over cases involving name changes granted pursuant to the Probate Code, the trial court lacked subject-matter jurisdiction to grant a common law name change. “However, subject-matter jurisdiction concerns the court’s authority to hear a broad class of cases,” the Court of Appeals wrote. “As was the case in Landon, respondent’s argument conflates subject-matter jurisdiction with a court’s exercise of its jurisdiction. The trial court’s interpretation of whether petitioner maintained common law rights following a finding that MCL711.1 was inapplicable had no effect on whether the court continued to have subject-matter jurisdiction because a common law name change is within the same class of cases as a name change granted pursuant to the Probate Code.”
Common Law
The respondent also argued that the trial court did not have the authority to sua sponte grant the petition under the common law after finding that the requirements in MCL 711.1 were not met.
Addressing this argument, the Court of Appeals pointed out that two methods to effectuate a name change have been recognized in Michigan. “An individual may adopt any name he or she wishes, without resort to any court or legal proceeding, provided it is not done for fraudulent purposes, under the common law. … Under the common law, and in the absence of fraud, a minor may also adopt any name he or she wishes provided they are of sufficient age and maturity to make an intelligent choice.”
Alternatively, an individual may petition the court for a name change pursuant to MCL 711.1, the Court of Appeals explained. “MCL 711.1(1) provides that the family division of the circuit court may enter an order to change the name of an individual who has been a resident of the country for at least one year and petitions the court in writing. The petition must demonstrate a ‘sufficient reason for the proposed change and that the change is not sought with a fraudulent intent.’ … If the petitioner is a minor, the petition shall be signed by the minor’s mother and father jointly or by one of the minor’s parents if there is only one legal parent available to give consent. … If the minor is 14 years old or older, written consent to change name must be signed by the minor, in the presence of the court, and should be filed with the court before an order changing the name of the minor is entered.”
In this case, AR was 14 years old when he filed the petition, he signed the petition and Piechotte signed as AR’s parent/guardian, the Court of Appeals observed. After a hearing, the trial court had AR sign a written consent form in the presence of the trial court in accordance with MCL 711.1(5) and MCR 3.613(B). Thereafter, the trial court found that “the statutory basis under the applicable statute … has not been established.”
Although the respondent claimed the trial court erroneously found that AR maintained a common law right to a name change, “contrary to respondent’s assertions, this Court previously recognized that MCL 711.1 does not abrogate or supersede the common law, a holding which we deem important to reaffirm,” the Court of Appeals wrote. “In Michigan, as in most states, a statute authorizes procedures by which a court can, upon petition, change the name of any person. … Such change of name statutes do not abrogate or supersede the common law. To the contrary, they affirm the common law right and afford an additional method by which a name change may be effected as a matter of public record.”
Because the petitioner maintained a common law right to a name change, the Court of Appeals turned to the next issue: whether the trial court provided a proper basis for granting the petition. In deciding whether to grant the petition, the trial court employed a “best interest test,” the Court of Appeals said. “While we note the dearth of case law on this point, this Court has stated that the trial court should look to the best interest test in deciding whether to grant a minor a legal name change.”
Next, the Court of Appeals looked to the holding in Rappleye v Rappleye, 183 Mich App 396 (1990), for guidance. The Rappleye Court stated: “[W]e cannot conclude on this record that the trial court abused its discretion by determining that it is in the minor child’s best interest to allow her to continue using the name Gregory, if she so desires. … In the present case, the trial court’s decision was clearly based on the facts and on what was right and equitable under the circumstances.”
While the Rappleye Court did not explicitly adopt the best interest test, it was adopted by the Court of Appeals in Garling v Spiering, 203 Mich App 1 (1993), the Court of Appeals explained. The Spiering Court stated: “Although admittedly this Court in Rappleye did not formally adopt the ‘best interest’ test for the purpose of resolving these types of disputes, we clearly approved of its use by our trial courts. In light of the specific issue raised in this case, we now hold that parental disputes regarding a child’s surname should be resolved in accordance with the best interests of the child.”
Therefore, “[i]n accord with our holding in Spiering, here, the trial court employed the best interest test as its basis for granting the petition,” the Court of Appeals wrote. “The trial court began its best interests test by pointing out that neither parent was able to agree on how to resolve the issue of AR’s proper last name, and given the level of animosity that each parent still holds against the other, absent court intervention, the issue would never be resolved. The trial court appointed a lawyer guardian ad litem to interview the minor and inform the trial court of those discussions. The guardian ad litem testified that after interviewing AR, it was clear that AR wanted the name change because he identified with and lived with members of his father’s family, all of whom had the last name of Piechotte. The trial court also found, after interviewing AR that given the length of time since he last had any contact with his mother - approximately three years - and the dearth of contact with his mother’s family, AR identified as a member of the Piechotte family rather than a member of the Warshefski family. The trial court also found that AR lived in a household where everyone but him had the last name of Piechotte.”
Moreover, the record revealed that the trial court gave all parties sufficient opportunities to state their particular reasons for granting or denying the petition, the Court of Appeals noted. “To ensure no undue influence was exerted over the minor child, the trial court appointed a lawyer guardian ad litem who testified before the trial court that there was no evidence AR was being manipulated or coerced into bringing a petition for a name change.”
Based on the record, “we cannot assign any error to the trial court’s factual findings, and we note that respondent has failed to establish a legally sufficient basis for a finding by this Court that the trial court committed any factual error,” the Court of Appeals concluded. “Similarly, in its legal rulings, the trial court correctly held that MCL 711.1 was inapplicable because at the time of the filing of the petition, respondent was providing support for AR. The trial court next found, based on prior decisions by this Court, that statutory enactments such as MCL 711.1 did not abrogate common law rights to a name change. … Next, by employing the best interest test in reaching its decision to grant the petition, the trial court followed prior rulings of this Court. ... Accordingly, respondent is not entitled to relief."
