In Re: A.M.K.

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

June 22, 2011 Session

IN RE: A.M.K.

Appeal from the Juvenile Court for Knox County

No. F9235 Timothy Irwin, Judge

No. E2011-00292-COA-R3-JV-FILED-AUGUST 11, 2011

This appeal concerns the changing of a minor child’s surname. Tyler Weseman (“Father”)

and Amanda King (“Mother”) are, respectively, the father and mother of the minor child

A.M.K. (“the Child”). Father filed a petition to establish parentage and co-parenting time.

Father sought to have the Child bear his surname. The Juvenile Court for Knox County (“the

Juvenile Court”) changed the Child’s surname from King to King-Weseman. Mother

appeals. We hold that the evidence does not preponderate against the Juvenile Court’s

finding that changing the Child’s surname to King-Weseman is in the Child’s best interest.

We further hold that the Juvenile Court did not abuse its discretion in declining to award

attorney’s fees to Mother. The judgment of the Juvenile Court is affirmed.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed;

Case Remanded

D. M ICHAEL S WINEY, J., delivered the opinion of the Court, in which C HARLES D . S USANO,

J R., and J OHN W. M CC LARTY, J.J., joined.

David L. Valone, Knoxville, Tennessee, for the appellant, Amanda King.

Farrell A. Levy, Knoxville, Tennessee, for the appellee, Tyler Weseman.

OPINION

Background

Father and Mother dated for a time in 2008. Mother became pregnant. In

November 2008, before the Child was born, Father filed his Petition to Establish Parentage

and Co-Parenting Time. Father asked, among other things, that “based upon the results of

the DNA testing, the child take Petitioner’s surname.” Mother, in her answer, demanded

strict proof regarding Father’s paternity of the Child. The Child was born in May 2009 and

was given Mother’s surname. The Magistrate of the Juvenile Court entered Findings and

Recommendations, reserving the matter of the Child’s surname. In April 2010, the Juvenile

Court entered an order nunc pro tunc to June 24, 2009 establishing Father’s paternity of the

Child.1 Also in April 2010, the Magistrate of the Juvenile Court entered an order nunc pro

tunc to March 17, 2010 denying Father’s request to have the Child’s surname changed. The

Magistrate of the Juvenile Court later denied Mother’s request for attorney's fees. Father

appealed the Magistrate’s decision pertaining to the Child’s surname and Mother appealed

the Magistrate’s denial of her attorney’s fees. In September 2010, this matter was heard

before the Judge of the Juvenile Court.

Father testified first. Father stated that he worked at Saint Mary’s North

Medical Center. Father testified that he had no criminal record. In September 2008, Mother

informed Father that she was pregnant and that he was the father. Mother and Father were

dating at that time. Father stated that he wished he could have been present at the birth of

the Child in May 2009 but that he never was notified by Mother’s family of the event.

Father testified that he had time with the Child every week from Tuesday

morning through Thursday. Father testified regarding the activities he engages in with the

Child:

We do all kinds of stuff. I’ve got a back pack I put her in and we go

hiking. I take her to the pool. We read a lot of books. We go to the library.

A few weeks ago I signed her up for gym classes at the Little Gym in

Knoxville. It’s on Kingston Pike. So I take her there. It’s every Wednesday.

It’s just kind of like a gymnastics thing for small children. We take naps, play

outside, horseplay, you know, things of that nature.

Father stated that he initially did not pay child support after the Child was born as he was not

1

The order did not specifically state that Father was the father of the Child. An agreed order was

later entered correcting the clerical error and specifically identifying Father as the father of the Child.

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certain that he was the Child’s father, but testified: “[O]nce the paternity was set they

calculated the support for, I guess, the past month sir I paid immediately. Never missed a

payment. I’ve never made a late payment. I don’t know what more I could do.” Father

stated that, when younger, as part of his sports activities, people would call him “Weissy” as

a nickname. Regarding why he believed it was important for the Child to share his surname,

Father testified that he had to explain to people the reasons behind the Child’s surname and

considered how she would have to answer such questions when she got older.

Marcus Weseman (“the Grandfather”), Father’s father, testified next. The

Grandfather stated that he is Vice President at Oak Ridge Associated Universities and he

directs the “Health Education Programs which are primarily immunization for children,

young adults, [and] families.” The Grandfather testified regarding his activities in the

community:

I coached American Youth Soccer Organization Soccer for eleven (11)

years in Knox County in the Ball Camp Region. I coached girl’s teams, my

daughter’s teams from age 5 to 15. I have … was on the Board of Directors

for the soccer organization in the Ball Camp Region. Very active in

supporting children’s causes. I’ve been a major financial supporter of COSA

for their fund raising events. Put up money for the sculpture that’s in front of

Juvenile Court. So I have been … and before that I was a school teacher in

Knox County … or Knox City and before that I worked at the Juvenile Home

for Juvenile Court. So most of my career, my volunteer activities are all aimed

at improving the lives of children and young adults.

The Grandfather stated that he did not live in East Knox County like Mother but that he had

“people that work for me that live in East Knox County that know [Father] and that know

me.” Father’s sporting activities took place around ten years ago and people in East Knox

County did not know the Grandfather through sporting activities related to Father since then.

Wesley Trout (“Trout”), Bible Associate Pastor at North Acres Baptist Church,

testified that he had known Mother for around three years and that the King family had a

good reputation in the community. Trout testified that he knew that the Child has a younger

sister with the surname King. Trout stated that he was concerned that, were the Child’s

surname changed, children might inquire as to why. On cross-examination, Trout admitted

that children at school also might wonder why the Child does not share the same surname as

her father.

Kathy King (“the Grandmother”), the Child’s maternal grandmother, testified

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that she and her family have lived in East Knox County for more than fifty years. The

Grandmother stated that both her granddaughters have the surname King. The Grandmother

testified that she was concerned about her granddaughters having different surnames as they

were close together and would attend the same school. The Grandmother stated that her

family did mission work and that the Child is known by the surname King.

Mother testified last. Mother stated that she worked as an imaging tech for

Fort Sanders West Diagnostic Center. A number of documents were entered as exhibits

showing that, up to the time of the trial, the Child had gone by the surname King. Mother

testified that she maintained health insurance on the Child even though Father was supposed

to do so pursuant to the parenting plan. Mother stated that she had concerns about her

daughters having different surnames and how difficult it would be for them to explain the

difference. Mother testified that if she got married she would retain the name King since

both her daughters had the name King. Mother, however, also stated that she would not

neglect to have additional children simply to insure that she and her two daughters could all

keep the same surname.

Following the testimony of the witnesses, the Juvenile Court stated in its

“Judge’s Ruling”:

As I said earlier with a child this young the Barabbas factors often times don’t

make enough difference one way or the other. They are among the factors to

be considered is what the case language in Barabbas tells us. I’ve listened very

closely to the relevant parts of both Party’s arguments and the witnesses in this

case. This is a lucky child. She’s got two strong families that care a great deal

about how she does in life. This child is not the same as her sister. She

doesn’t have the same parentage. She doesn’t have the same lineage. There’s

no requirement that her name be the same as her sister. I think it only

equitable in this particular situation with the father spending three (3) days and

two (2) nights a week with the child, with the father meeting all his

obligations, with him being so involved in the child’s life that this child’s

name be hyphenated and so go forth from this day forward with the name

King-Weseman. I think it’s fair that this child be called by the last name of

both strong families. That it’s in her best interest to have both of these proud

families’ names associated with her. I think that retaining the name King in

some form or fashion will alleviate some of the concerns that the mother and

her family have had. And I think in this case, although I don’t always find this

way, a hyphenated name makes sense.

In December 2010, the Juvenile Court entered an order changing the Child’s surname to

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King-Weseman and denying Mother’s request for attorney’s fees.

Discussion

Though not stated exactly as such, Mother raises two issues on appeal: 1)

whether the Juvenile Court erred in changing the Child’s surname to a hyphenated surname;

and 2) whether the Juvenile Court erred in declining to award attorney’s fees to Mother.

Our review is de novo upon the record, accompanied by a presumption of

correctness of the findings of fact of the trial court, unless the preponderance of the evidence

is otherwise. Tenn. R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001).

A trial court's conclusions of law are subject to a de novo review with no presumption of

correctness. S. Constructors, Inc. v. Loudon County Bd. of Educ., 58 S.W.3d 706, 710 (Tenn.

2001).

We first address whether the Juvenile Court erred in changing the Child’s

surname to a hyphenated surname. We have addressed the changing of a child’s surname:

The courts should not change a child's surname unless the change

promotes the child's best interests. Halloran v. Kostka, 778 S.W.2d 454, 456

(Tenn. Ct. App. 1988); see also In re Marriage of Schiffman, 169 Cal.Rptr.

918, 921, 620 P.2d 579, 582 (1980); In re Cardinal, 611 A.2d at 517; Kristine

C. Karnezis, Annotation, Rights and Remedies of Parents Inter Se With

Respect to the Name of Their Children, 92 A.L.R.3d 66 § 8.5 (Supp. 1992).

Among the criteria for determining whether changing a child's surname will

be in the child's best interests are: (1) the child's preference, (2) the change's

potential effect on the child's relationship with each parent (3) the length of

time the child has had its present surname, (4) the degree of community respect

associated with the present and proposed surname, and (5) the difficulty,

harassment, or embarrassment that the child may experience from bearing

either its present or its proposed surname. In re Saxton, 309 N.W.2d 298, 301

(Minn.1981); Bobo v. Jewell, 528 N.E.2d at 185; Daves v. Nastros, 105

Wash.2d 24, 711 P.2d 314, 318 (1985). The parent seeking to change the

child's surname has the burden of proving that the change will further the

child's best interests. In re Petition of Schidlmeier, 344 Pa.Super. 562, 496

A.2d 1249, 1253 (1985); In re M.L.P., 621 S.W.2d 430, 431 (Tex. Ct. App.

1981).

Barabas v. Rogers, 868 S.W.2d 283, 287 (Tenn. Ct. App. 1993)

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Father directs our attention to the case of Conner v. King, No.

W2009-00511-COA-R3-JV, 2009 WL 3925164 (Tenn. Ct. App. November 18, 2009), Rule

11 Appl. Perm. Appeal Denied May 11, 2010, which expands upon the five-pronged Barabas

criteria. We stated:

Although these criteria “may offer a court guidance” in determining whether

a name change would be in the child's best interest, they “are not exclusive and

obviously may not be relevant given the facts of a particular case.” Keith v.

Surratt, No. M2004-01835-COAR3-CV, 2006 WL 236941, at *8 (Tenn. Ct.

App. Jan. 31, 2006). Where a father requests that his child be given his

surname, courts have also considered the nature of the father's relationship

with the child. See, e.g., State of Tenn., Dep't of Human Servs. v. Sanders, No.

03A01-9705-JV-00184, 1998 WL 8516, at *2 (Tenn. Ct. App. Jan. 13, 1998)

(noting that the child “knows his father, who provides for him; a bond has

developed between them, [and] he has been legitimated”); Halloran v. Kostka,

778 S.W.2d at 456 (noting that the father had “maintained contact with and

supported [the child] throughout her life”).

Conner, 2009 WL 3925164, at *2.

In this case, the testimony at trial established that Father maintained a good

relationship with the Child. Indeed, Father testified to a “very strong bond” with the Child

and described his active participation in the Child’s life. Both parties advance concerns

about the Child’s surname, particularly regarding potentially embarrassing questions to the

Child that might arise from others as to why the Child does not share the surname of her

father or sister, as the case may be. More pertinent to our analysis is the evidence of a strong

bond between Father and the Child. In Conner, given the facts of that case, we found that

hyphenating the child’s surname to include his father’s surname would “affirm his bond with

[his] Father.” Conner, 2009 WL 3925164, at *3. The father in Conner, among other things,

asserted his paternity prior to the birth of his child and engaged in visitation with the child

as Father has done in this case. Id. at *2.

We are persuaded that hyphenating the Child’s surname will affirm her bond

with Father, as well. This bond, as well as the strength of both families as evidenced in the

record, is effectively reflected through a hyphenated surname combining the family names.

Though neither party in this case initially advocated a hyphenated surname,2 there is

2

On appeal, Father states that, solely based on the reputation of the Weseman name in the

community, the Juvenile Court should have given the Child his surname outright, but he considers the

(continued...)

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sufficient evidence in the record to support the Juvenile Court’s finding that changing the

Child’s surname to King-Weseman is in her best interest. With this outcome, the Child can,

as the Juvenile Court stated in explaining its ruling, “be called by the last name of both strong

families.” The evidence does not preponderate against the Juvenile Court’s finding that

changing the Child’s surname to a hyphenated name is in her best interest. Therefore, we

affirm the judgment of the Juvenile Court with respect to this issue.

We next address whether the Juvenile Court erred in declining to award

attorney’s fees to Mother. Mother invokes Tenn. Code Ann. § 36-5-103(c) which provides:

(c) The plaintiff spouse may recover from the defendant spouse, and the

spouse or other person to whom the custody of the child, or children, is

awarded may recover from the other spouse reasonable attorney fees incurred

in enforcing any decree for alimony and/or child support, or in regard to any

suit or action concerning the adjudication of the custody or the change of

custody of any child, or children, of the parties, both upon the original divorce

hearing and at any subsequent hearing, which fees may be fixed and allowed

by the court, before whom such action or proceeding is pending, in the

discretion of such court.

Tenn. Code Ann. § 36-5-103(c)(2010).3 Pursuant to the statute, we review this issue raised

on appeal for abuse of discretion. Id. In Lee Medical, Inc. v. Beecher, 312 S.W.3d 515

(Tenn. 2010), the Supreme Court discussed the abuse of discretion standard at length, stating:

The abuse of discretion standard of review envisions a less rigorous

review of the lower court’s decision and a decreased likelihood that the

decision will be reversed on appeal. Beard v. Bd. of Prof’l Responsibility, 288

S.W.3d 838, 860 (Tenn. 2009); State ex rel. Jones v. Looper, 86 S.W.3d 189,

193 (Tenn. Ct. App. 2000). It reflects an awareness that the decision being

reviewed involved a choice among several acceptable alternatives. Overstreet

v. Shoney’s, Inc., 4 S.W.3d 694, 708 (Tenn. Ct. App. 1999). Thus, it does not

permit reviewing courts to second-guess the court below, White v. Vanderbilt

Univ., 21 S.W.3d 215, 223 (Tenn. Ct. App. 1999), or to substitute their

discretion for the lower court’s, Henry v. Goins, 104 S.W.3d 475, 479 (Tenn.

2003); Myint v. Allstate Ins. Co., 970 S.W.2d 920, 927 (Tenn. 1998). The

2

(...continued)

Juvenile Court’s decision to name the Child “King-Weseman” acceptable.

3

The parties do not dispute the relevant statute.

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abuse of discretion standard of review does not, however, immunize a lower

court’s decision from any meaningful appellate scrutiny. Boyd v. Comdata

Network, Inc., 88 S.W.3d 203, 211 (Tenn. Ct. App. 2002).

Discretionary decisions must take the applicable law and the relevant

facts into account. Konvalinka v. Chattanooga-Hamilton County Hosp. Auth.,

249 S.W.3d 346, 358 (Tenn. 2008); Ballard v. Herzke, 924 S.W.2d 652, 661

(Tenn. 1996). An abuse of discretion occurs when a court strays beyond the

applicable legal standards or when it fails to properly consider the factors

customarily used to guide the particular discretionary decision. State v. Lewis,

235 S.W.3d 136, 141 (Tenn. 2007). A court abuses its discretion when it

causes an injustice to the party challenging the decision by (1) applying an

incorrect legal standard, (2) reaching an illogical or unreasonable decision, or

(3) basing its decision on a clearly erroneous assessment of the evidence. State

v. Ostein, 293 S.W.3d 519, 526 (Tenn. 2009); Konvalinka v.

Chattanooga-Hamilton County Hosp. Auth., 249 S.W.3d at 358; Doe 1 ex rel.

Doe 1 v. Roman Catholic Diocese of Nashville, 154 S.W.3d at 42.

To avoid result-oriented decisions or seemingly irreconcilable

precedents, reviewing courts should review a lower court’s discretionary

decision to determine (1) whether the factual basis for the decision is properly

supported by evidence in the record, (2) whether the lower court properly

identified and applied the most appropriate legal principles applicable to the

decision, and (3) whether the lower court’s decision was within the range of

acceptable alternative dispositions. Flautt & Mann v. Council of Memphis,

285 S.W.3d 856, 872-73 (Tenn. Ct. App. 2008) (quoting BIF, a Div. of Gen.

Signal Controls, Inc. v. Service Constr. Co., No. 87-136-II, 1988 WL 72409,

at *3 (Tenn. Ct. App. July 13, 1988) (No Tenn. R. App. P. 11 application

filed)). When called upon to review a lower court’s discretionary decision, the

reviewing court should review the underlying factual findings using the

preponderance of the evidence standard contained in Tenn. R. App. P. 13(d)

and should review the lower court’s legal determinations de novo without any

presumption of correctness. Johnson v. Nissan N. Am., Inc., 146 S.W.3d 600,

604 (Tenn. Ct. App. 2004); Boyd v. Comdata Network, Inc., 88 S.W.3d at 212.

Beecher, 312 S.W.3d at 524-25.

Mother argues on appeal that “since she was successful in getting an order for

child support and child support arrearage, that she is entitled to an award of fees.” It bears

noting that Father filed the Petition to Establish Parentage and Co-Parenting Time in

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November 2008, well before the birth of the Child. Father affirmatively stepped forward and

asked that child support be set.

We do not agree with Mother’s contention that she is entitled to an award of

attorney’s fees. The Juvenile Court neither applied an incorrect legal standard nor reached

a decision against logic or reasoning. Given this, we will not substitute our judgment for that

of the Juvenile Court. We find that the Juvenile Court did not abuse its discretion in declining

to award Mother attorney’s fees.

Conclusion

The judgment of the Juvenile Court is affirmed, and this cause is remanded to

the Juvenile Court for collection of the costs below. The costs on appeal are assessed against

the Appellant, Amanda King, and her surety, if any.

_________________________________

D. MICHAEL SWINEY, JUDGE

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