William S. v. Amy H.

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
FILED
February 27, 2024
WILLIAM S.,
C. CASEY FORBES, CLERK
Respondent Below, Petitioner INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA

v.) No. 23-ICA-206 (Fam. Ct. of Ritchie Cnty. No. FC-43-2020-D-59)

AMY H.,
Respondent Below, Respondent

MEMORANDUM DECISION

Petitioner William S.1 appeals the Family Court of Ritchie County’s April 24, 2023,
“Final Order,” which denied his petition to change the name of his son and ordered an
automatic name change of his son contingent upon any future name change of Respondent
Amy H.2 Amy H. filed a response. William S. did not file a reply.

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2022). After considering the parties’ arguments, the record on appeal, and the
applicable law, this Court finds that there is error in the lower tribunal’s decision but no
substantial question of law. This case satisfies the “limited circumstances” requirement of
Rule 21(d) of the Rules of Appellate Procedure for reversal in a memorandum decision.
For the reasons set forth below, the lower tribunal’s decision is affirmed in part, reversed
in part, and this case is remanded for further proceedings consistent with this decision.

The parties are the biological parents of E.J.H. (“the Child”) born in October 2020.
The parties were never married, never cohabitated, and were not in a romantic relationship
at time of the Child’s birth. No father was listed on the birth certificate at the time of the
Child’s birth and the Child was given Amy H.’s surname.

On October 13, 2020, William S. applied for services with the Bureau for Child
Support Enforcement (“BCSE”) to request genetic testing to determine if he was the

1
To protect the confidentiality of the juvenile involved in this case, we refer to the
parties’ last name by the first initial. See, e.g., W. Va. R. App. P. 40(e); State v. Edward
Charles L., 183 W. Va. 641, 645 n.1, 398 S.E.2d 123, 127 n.1 (1990).
2
William S. is represented by Linda Hausman, Esq., and Samantha L. Koreski, Esq.
Amy H. is represented by Katharine L. Davitian, Esq.

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biological father of the Child. On December 14, 2020, the BCSE filed a complaint in family
court to establish paternity and, on April 7, 2021, the family court entered an order
requiring the parties to undergo genetic testing. Paternity testing was conducted and by
report dated May 5, 2021, it was deemed 99.9% probable that William S. was the biological
father of the Child.

On May 20, 2021, William S. filed a petition for custodial allocation that included
a request to change the Child’s surname to William S.’s surname. The family court held a
hearing on February 15, 2022,3 during which the court ordered both parties to have joint
decision-making authority regarding the Child, extended William S.’s parenting time, and
required consent from the other parent before the Child’s medical or childcare provider
could be changed. On February 23, 2022, a certificate of paternity was issued naming
William S. as the father of the Child, and a final paternity order was entered on March 1,
2022.

The family court held a final hearing on William S.’s petition for custodial
allocation and request for name change on December 9, 2022. Prior to the hearing, the
parties reached an agreement on all issues except parenting time during Thanksgiving and
changing the Child’s surname. The parties came to a consensus regarding Thanksgiving
during the hearing, and, thus, all that remained for the court to decide was William S.’s
request to change the Child’s surname.

During the final hearing, the family court heard testimony from both parties. In
support of his request, William S. asserted that the Child having his surname would benefit
the Child because William S. has close family in the area who bear the same surname; the
Child bears the surname of Amy H.’s late husband; and Amy H. changed her surname
when she married her late husband and is likely to change it again if she remarries.4
William S. argued that it would be in the Child’s best interest to have the same surname of
a biological parent. He further contended that he had diligently pursued the determination
of paternity and establishment of a parenting plan two days after he was determined to be
the father. William S. stated that when he and Amy H. were a couple, they discussed
changing the Child’s surname to his surname; however, Amy H. disagreed and averred that
she has never considered changing the child’s surname to that of William S. and requested
the family court to deny the name change request. William S. proposed various name
changes to incorporate his surname since Amy H. objected to his initial proposal; she

3
The procedural delay was due to various conflicts with the family court judges
assigned to this case. The matter was heard by two different judges before the presiding
judge was appointed.
4
The record is devoid of when Amy H.’s late husband passed; however, the Child
was conceived at some point following his death.

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objected to changing the Child’s surname, hyphenating it, and/or replacing the Child’s
middle name with William S.’s surname.

On April 24, 2023, the family court entered a “Final Order” adopting the parties’
parenting plan agreement and denying William S.’s request to change the Child’s surname,
finding that it was not in the Child’s best interest. Instead, the court ordered that the Child’s
surname would automatically change to the William S.’s surname if Amy H. changed her
name in the future. This appeal followed.

When reviewing the order of a family court, we apply the following standard of
review:

“In reviewing ... a final order of a family court judge, we review the
findings of fact made by the family court judge under the clearly erroneous
standard, and the application of law to the facts under an abuse of discretion
standard. We review questions of law de novo.” Syl. Pt., [in part,] Carr v.
Hancock, 216 W. Va. 474, 607 S.E.2d 803 (2004).

Amanda C. v. Christopher P., 248 W. Va. 130, 133, 887 S.E.2d 255, 258 (Ct. App. 2022);
accord W. Va. Code § 51-2A-14(c) (2005) (specifying standards for appellate review of a
family court order).

On appeal, William S. raises two assignments of error. First, William S. asserts that
the family court abused its discretion in finding the name change was not in the best interest
of the Child. William S. argues that “[h]e believes strongly that the [C]hild should have the
last name of a parent, and not the [last name of the] late husband of a parent.” He further
stated that if Amy H. remarries and changes her surname, the Child will have neither
parent’s surname. He asserts that the family court “seemed more interested in [Amy H.’s]
needs as opposed to the required inquiry into the best interest of the [C]hild” because it
prioritized Amy H.’s name preference for the Child over his name preference. We disagree
and find no merit in William S.’s argument.

William S.’s assertion is misguided. The Supreme Court of Appeals of West
Virginia has consistently held, “[a]ny name change involving a minor child may be made
only upon clear, cogent, and convincing evidence that the change would significantly
advance the best interests of the child.” Syl. Pt. 3, Lufft v. Lufft, 188 W.Va. 339, 424 S.E.2d
266 (1992). The focus of our review is whether William S. produced “clear, cogent, and
convincing evidence that the change would significantly advance the best interests of the
Child” or whether, as William S. seems to assert, Amy H. failed to do so. The burden to
change the Child’s name belongs to William S. as the name change proponent; Amy H. is
not required produce any evidence in opposition of the name change. See John W. v.
Rechelle H., No. 18-0329, 2019 WL 2168795 at *2 n.2 (W. Va. May 20, 2019)

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(memorandum decision) (“Petitioner is the name-change proponent and he, thus, is the
party required to make the appropriate evidentiary showing.”).

As evidenced by the record below, William S. takes issue with the fact that Amy
H.’s surname is not her “biological surname” and is her married surname. Regardless, it is
her surname. As the John W. court noted, “there is no legal preference that a child be given
either parent’s surname, ‘but rather a focus on whether any name change would
significantly advance the child’s best interests.’” Id. at *2. Thus, it is clear that the law
emphasizes the evidentiary standard for changing a child’s name. In his brief, William S.
argues that the family court allowed Amy H. “to absolutely dictate the name of the [C]hild”
and favored her because she birthed the Child. Once again, William S.’s argument is flawed
because the name change statute governs just that – name changes – not the initial naming
of newborns. The fact that the Child was given Amy H.’s surname at birth is
inconsequential; the heart of the issue is whether the proposed name change significantly
advances the best interest of the Child.

William S. presented the family court with evidence that he was born and raised in
Ritchie County and continues to reside there; he has a large, close family in the area, most
with the same surname; and he lives next door to his adult son and grandson, who also bear
his surname. The father in John W. also argued that the proud history of his surname was
in the child’s best interest and thus, warranted a name change. Nonetheless, the Supreme
Court of Appeals of West Virginia held:

These factors—considered in our current society where blended families are
plentiful, parents equally contribute to the care and support of children, and
matriarchal heritage is no less celebrated than that of our fathers—are
insufficient to establish that the requested name change is in the best interest
of the parties’ child.

Id. The record reflects that although William S. has been involved in the Child’s life early
on and continues to be involved, he provided no evidence that changing the Child’s last
name to his surname would significantly advance the Child’s best interest. To the contrary,
his arguments centered on why the Child’s current name was ill-suited and not in the
Child’s best interest, which is not the applicable evidentiary standard. Accordingly, we
affirm the family court’s decision regarding this issue.

In his second assignment of error, William S. asserts, and Amy H. agrees, that the
family court erred when it ordered the Child’s surname to automatically change in the
future if Amy H. ever changed her name. We too agree. West Virginia Code § 48-25-101
(2013)5 governs the procedure and legal requirements to be followed in a name change

5
West Virginia Code § 48-25-101 (2013) states, in part, as follows:

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proceeding. The statute requires the petitioning party to file a verified petition setting forth
certain facts and to publish notice of the hearing as a Class I legal advertisement. Here, the
family court’s order fails to comply with any of the requirements in West Virginia Code §
48-25-101. Instead, the order requires the child’s surname to automatically change upon a
condition precedent, the changing of Amy H.’s surname. Accordingly, we find the family
court’s failure to require the parties to adhere to West Virginia Code § 48-25-101 and
permitting an “automatic” name change upon the changing of Amy H’s surname, was an
abuse of discretion and court’s ruling in this regard is reversed.

Accordingly, we affirm, in part, and reverse, in part, the Family Court of Ritchie
County’s April 24, 2023, “Final Order,” and remand this case for further proceedings
consistent with this decision.

Affirmed in part, Reversed in part, and Remanded.

ISSUED: February 27, 2024

CONCURRED IN BY:

Chief Judge Thomas E. Scarr
Judge Charles O. Lorensen
Judge Daniel W. Greear

(a) A person desiring a change of his or her own name, or that of his or her
child, may apply to the circuit court or family court of the county in which
he or she resides by a verified petition setting forth and affirming the
following:

....

(b) After filing the petition and at least ten days before the hearing to consider
the application, the person shall cause a notice of the time and place that the
application will be made to be published as a Class I legal advertisement in
compliance with the provisions of article three, chapter fifty-nine of this
code.

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