In re Carol A. Boardman

MAINE SUPREME JUDICIAL COURT Reporter of Decisions

Decision: 2017 ME 131

Docket: Cum-16-421

Submitted

On Briefs: May 25, 2017

Decided: June 27, 2017

Panel: SAUFLEY, C.J., and ALEXANDER, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.

IN RE CAROL A. BOARDMAN

PER CURIAM

[¶1] Carol A. Boardman appeals from a decision of the Cumberland

County Probate Court (Mazziotti, J.) denying her petition for a name change

entered after a hearing. Boardman contends that the court erred by

concluding that the potential effect of the name change—others’

misunderstanding of Boardman’s marital status—does not demonstrate a

purpose “of defrauding another person or entity” that supports the court’s

denial of the petition.1 18-A M.R.S. ¶ 1-701(f) (2015).2 We agree with

Boardman, and we therefore vacate the judgment.

1 We also received two briefs of amicus curiae in this matter—one from Kimberly A. Fredette, a

similarly situated litigant, and one from the GLBTQ Legal Advocates & Defenders, the ALCU of

Maine, EqualityMaine, and the Trans Youth Equality Foundation. See M.R. App. P. 9(e).

2 Section 1-701 has since been amended. P.L. 2015, ch. 460, § 5 (effective July 29, 2016);

see infra n.3.

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I. BACKGROUND

[¶2] On June 17, 2016, Carol A. Boardman filed in the Cumberland

County Probate Court an unopposed petition and affidavit seeking to change

her name to Carol A. Currier. In her accompanying affidavit, Boardman

attested to four facts as follows: (1) “I certify that I have notified . . . [a]ny adult

person who is a relative or with whom I live or work or who is a blood relative

of a person with whom I live who has the same name which I am seeking to

adopt”; (2) “I have no minor children”; (3) “I am not involved in any

bankruptcy proceedings or arrangements among creditors in which my debts

to others are being affected, nor do I reasonably anticipate that such

proceedings or arrangements are about to begin”; and (4) “I know of no

person who has or has reason to have any objection to the change of name I

am seeking.”

[¶3] The court conducted a hearing on the petition on August 18, 2016,

during which it inquired as to whether Currier was Boardman’s “maiden”

name. Boardman responded that Currier was not her original family name,

but was instead the last name of her friend, and that her husband had died in

2013 and she wanted a “fresh start.” The court informed Boardman that to

allow her to take her friend's last name would be a “deception” in that it

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would falsely suggest to others that she and her friend are married. The court

explained, “So, if somebody were to extend credit to you, let you sign a lease,

give you access to records, they would do so under the misapprehension that

you were a married couple, but you’re not.” When Boardman asked, “What

am I supposed to do?” the court replied, “Get married. That’s your solution,

I’m afraid.” The court denied the petition, concluding, “Boardman seeks to

change her name to the surname of her partner. She admits that by doing so

will give the public impression they are a married couple and thus a false

impression.” Boardman appeals. See 18-A M.R.S. § 1-308 (2016); M.R. App. P.

2(b)(3).

II. DISCUSSION

[¶4] At the time Boardman filed her petition, the name change statute

in effect was 18-A M.R.S. § 1-701 (2015).3 Section 1-701 provides that a court

3 The applicable version of the name change statute provided in its entirety is as follows:

§ 1-701. Petition to change name

(a) If a person desires to have that person’s name changed, the person may

petition the judge of probate in the county where the person resides. If the person is

a minor, the person’s legal custodian may petition in the person’s behalf.

(b) The judge, after due notice, may change the name of the person. To

protect the person’s safety, the judge may limit the notice required if the person

shows by a preponderance of the evidence that:

(1) The person is a victim of abuse; and

(2) The person is currently in reasonable fear of the person’s safety.

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may grant a name change when a “person [who] desires to have that person’s

name changed” files a petition in the county in which she resides and provides

“due notice” of the request along with a forty-dollar fee. 1 M.R.S. § 1-701(a),

(b), (d). The court may also order the petitioner to undergo background

checks to verify criminal history, motor vehicle history, and credit history.

1 M.R.S. § 1-701(e). Section 1-701 further names the limited circumstances in

which a name change may not be granted: “The judge may not change the

name of the person if the judge has reason to believe that the person is

seeking the name change for purposes of defrauding another person or entity

or for purposes otherwise contrary to the public interest.” 1 M.R.S. § 1-701(f).

(c) The judge shall make and preserve a record of the name change. If the

judge limited the notice required under subsection (b), the judge may seal the

records of the name change.

(d) The fee for filing the name change petition is $40.

(e) The judge may require the person seeking a name change to undergo

one or more of the following background checks: a criminal history record check; a

motor vehicle record check; or a credit check. The judge may require the person to

pay the cost of each background check required.

(f) The judge may not change the name of the person if the judge has reason

to believe that the person is seeking the name change for purposes of defrauding

another person or entity or for purposes otherwise contrary to the public interest.

18-A M.R.S. § 1-701 (2015). The 2015 amendment to the statute gives the District Court

jurisdiction over a name change for a minor when “there is a proceeding involving custody or other

parental rights with respect to [a] minor pending in the District Court.” P.L. 2015, ch. 460, § 5

(effective July 29, 2016) (codified at 18-A M.R.S. § 1-701(a) (2016)). That amendment is not

relevant to the current appeal.

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[¶5] Here, the record establishes, and there is no dispute, that

Boardman filed a petition in the Probate Court of the county in which she

resides, see 18-A M.R.S. § 1-701(a); Boardman is not a minor, see 18-A M.R.S.

§ 1-701(a); no parental rights dispute regarding a minor was pending,

see 18-A M.R.S. § 1-701(a); “due notice” of the petition was provided, see

18-A M.R.S. § 1-701(b); Boardman paid the required fee with her petition, see

18-A M.R.S. § 1-701(d); and the court did not require Boardman to submit to

any background checks, see 18-A M.R.S. § 1-701(e). See In re A.M.B., 2010 ME

54, ¶¶ 2, 3, 5, 997 A.2d 754. No one appeared before the Probate Court to

oppose her petition.

[¶6] The Probate Court determined, however, that granting her the

requested name change might mislead others to believe that she is married to

a man who has the same last name she wishes to adopt. This

misunderstanding, the court apparently concluded, constitutes the type of

fraud that precludes the grant of a name change pursuant to section 1-701(f).

[¶7] Boardman challenges this interpretation of the name change

statute as a matter of law. Although we generally review for an abuse of

discretion the court’s denial of a requested name change, In re A.M.B.,

2010 ME 54, ¶ 4, 997 A.2d 754, because this matter regards the court’s legal

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interpretation of section 1-701, we review de novo the meaning of the statute

by examining its plain and unambiguous language, see Estate of Gray, 2014 ME

119, ¶ 9, 103 A.3d 212; Adoption of M.A., 2007 ME 123, ¶¶ 6, 9, 930 A.2d 1088.

[¶8] Name changes are to be liberally granted. See 18-A M.R.S. § 1-102

(2016) (stating that the Probate Code, of which section 1-701 is a part, “shall

be liberally construed and applied to promote its underlying purposes and

policies”); Adoption of M.A., 2007 ME 123, ¶ 25, 930 A.2d 1088. By identifying

those limited instances in which “[t]he judge may not change the name of the

person,” section 1-701 suggests that a name change must be granted in all

other circumstances. The statute provides only two bases for denying a

requested name change—when it is sought “for purposes of defrauding

another person or entity” or when it is sought “for purposes otherwise

contrary to the public interest.” 18-A M.R.S. § 1-701(f). As we have said,

“[t]he main purpose of the statute . . . is to provide petitioners with the

certainty of a judicially-sanctioned name change, as long as the petition is not

submitted with fraudulent intent and the change of name does not interfere

with the rights of others.” In re A.M.B., 2010 ME 54, ¶ 4, 997 A.2d 754.

[¶9] Although section 1-701 does not define what it means to

“defraud[],” that term is a legal term of art that has long referred to a

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“depriv[ation] of some right, interest or property by a deceitful device.” State

v. Vandenburg, 2 A.2d 916, 919 (Del. Gen. Sess. Ct. 1938) (quotation marks

omitted); see Motley v. Sawyer, 38 Me. 68, 73 (1854); Moody v. Burton, 27 Me.

427, 436 (1847); Webster’s Third New International Dictionary 593 (2002).

In the civil context, for example, the tort of fraudulent misrepresentation is

proved with evidence

(1) that the defendant made a false representation, (2) of a

material fact, (3) with knowledge of its falsity or in reckless

disregard of whether it is true or false, (4) for the purpose of

inducing the plaintiff to act in reliance upon it, and, (5) the

plaintiff justifiably relied upon the representation as true and

acted upon it to the plaintiff’s damage.

Rand v. Bath Iron Works Corp., 2003 ME 122, ¶ 9, 832 A.2d 771. Similarly, the

elements of fraudulent concealment are “(1) a failure to disclose; (2) a

material fact; (3) where a legal or equitable duty to disclose exists; (4) with

the intention of inducing another to act or to refrain from acting in reliance on

the non-disclosure; and (5) which is in fact relied upon to the aggrieved

party’s detriment.” Picher v. Roman Catholic Bishop of Portland, 2009 ME 67,

¶ 30, 974 A.2d 286. In terms of negotiable instruments as well, a “[f]raudulent

indorsement” is one in which an instrument is forged. 11 M.R.S.

§ 3-1405(1)(b) (2016).

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[¶10] Similarly, in the criminal context, “[a] person is guilty of

defrauding a creditor if . . . [t]he person destroys, removes, conceals,

encumbers, transfers or otherwise deals with property subject to a security

interest . . . with the intent to hinder enforcement of that interest.” 17-A M.R.S.

§ 902(1), (1)(A) (2016). Home repair fraud is committed by “[i]ntentionally

misrepresent[ing] a material fact relating to the terms of the agreement or

contract or misrepresent[ing] a preexisting or existing condition of any

portion of the property that is the subject of the home repair services.”

17-A M.R.S. § 908(1)(A) (2016).

[¶11] We interpret the plain language of “defraud[]” in section 1-701

consistently with these definitions. Although the court expressed concern

that Boardman’s name change could lead potential creditors, lessors, or

record holders to believe that she is married, unless and until there is some

evidence that Boardman has taken or intends to take some action to avoid

financial or legal obligations, or to represent that she is married in

circumstances that cause another to justifiably rely on that representation to

his or her detriment, no fraud is implicated. See In re McIntyre, 715 A.2d 400,

402 (Pa. 1998) (stating that the “necessity for judicial involvement in name

change petition centers on governmental concerns that individuals not alter

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their identity to avoid financial obligations”). The record in this matter is

devoid of any such evidence.

[¶12] The Probate Court’s reading of section 1-701 also creates absurd

results that do not comport with other provisions of Maine law. See Curtis v.

Medeiros, 2016 ME 180, ¶ 10, 152 A.3d 605 (stating that courts must avoid

any interpretation of plain language that creates absurd results). The Maine

Human Rights Act, 5 M.R.S. §§ 4551-4634 (2016), already precludes

discrimination based on marital status, including in the provision of credit and

in the provision of housing. 5 M.R.S. §§ 4552, 4595-4596. Moreover,

unmarried domestic partners are already afforded various legal benefits,

regardless of their names. See 22 M.R.S. § 2710 (2016) (establishing the

domestic partner registry); see also 15 M.R.S. § 321(1) (2016) (including

domestic partners within the definition of “family or household members” for

protective order purposes); 18-A M.R.S. § 2-102 (2016) (allowing domestic

partners to inherit under the laws of intestacy); 24-A M.R.S. § 2741-A (2016)

(requiring that health insurers make coverage available for domestic

partners). Thus, by law, it cannot be marital status that dictates the

availability of credit or leasing options—the transactions about which the

Probate Court expressed concern.

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[¶13] Moreover, as a practical matter, given the variety of naming

conventions in modern society, having the same last name no more indicates

that a couple is married than having a different last name indicates that a

couple is unmarried. Indeed, more than forty years ago, we struck down this

concomitant notion in holding that a name change may not be denied on the

ground that it misleads others to believe that a person is unmarried when that

person is in fact married. In In re Reben, a woman took her husband’s last

name when the couple married but she later filed a petition to return to her

birth name even though she and her husband had no plans to divorce.

342 A.2d 688, 688-89 (Me. 1975). The Probate Court denied her petition. Id.

at 689. Because, as here, there was no evidence in In re Reben that the

petitioner had any fraudulent intent in seeking the name change, we declared

the court’s denial of the name change petition an abuse of discretion.4 Id. at

689, 695.

4 Other jurisdictions have reached similar conclusions in a variety of circumstances. See, e.g.,

In re Miller, 824 A.2d 1207, 1208, 1211-14 (Pa. Super. Ct. 2003) (holding that a woman was not

precluded from adopting the last name of her “life companion”); In re Bicknell, 771 N.E.2d 846,

847-49 (Ohio 2002) (holding that an unmarried same-sex couple wishing to adopt the same last

name is not a fraudulent basis on which to deny a requested name change); see also In re Bacharach,

780 A.2d 579, 585 (N.J. Super. Ct. App. Div. 2001) (same); In re McIntyre, 715 A.2d 400, 401-03

(Pa. 1998) (requiring the trial court to grant a name change from a male to a female name in

anticipation of the petitioner’s sex-reassignment surgery and holding that any confusion about the

petitioner’s gender created among others as a result of the name change did not constitute the

financial fraud with which the name change statute was primarily concerned); In re Brown,

770 S.E.2d 494, 495, 497-98 (Va. 2015) (requiring the trial court to grant the name change petition

of a federal prison inmate with gender identity disorder in the absence of any evidence of fraud).

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[¶14] On this appeal, we conclude that a person’s potential

misunderstanding of another person’s marital status, without more, does not

qualify as a fraud that precludes the otherwise liberal grant of name change

petitions in the Probate Court. Given this conclusion, and in the absence of

any dispute that Boardman met all the requirements for the change of her last

name imposed by section 1-701, we vacate the court’s denial of Boardman’s

petition and remand the matter with instructions to enter a judgment

granting Boardman’s petition for a name change.

The entry is:

Judgment vacated. Remanded with instructions

to enter a judgment granting Boardman’s name

change petition.

James S. Mundy, Esq., Whitney, Mundy & Mundy, South Berwick, for appellant

Carol Ann Boardman

Kimberly Ann Fredette, amicus curiae pro se

Mary L. Bonauto, Esq., and Patience Crozier, Esq., GLBTQ Legal Advocates &

Defenders, Boston, for amici curiae GLBTQ Legal Advocates & Defenders,

ACLU of Maine Foundation, EqualityMaine, and Trans Youth Equality

Foundation

Cumberland County Probate Court docket number 2016-868

FOR CLERK REFERENCE ONLY