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In re Petition of Berger

February 17, 2010

IN THE MATTER OF THE PETITION OF LANCE BERGER ON BEHALF OF MINOR CHILD, K.C.F., FOR CHANGE OF NAME
LANCE J. BERGER, PETITIONER AND APPELLANT
v.
AMBER MYHRE, RESPONDENT AND APPELLEE



Appeal from the District Court of Morton County, South Central Judicial District, the Honorable David E. Reich, Judge.

The opinion of the court was delivered by: Sandstrom, Justice

AFFIRMED.

[¶1] Lance Berger appeals a district court order denying his petition to change the name of his son, K.F., to K.B. We affirm the district court's denial of the name change.

I.

[¶2] Lance Berger and Amber Myhre are the parents of K.F., who was seven years old at the time this action was initiated. Berger and Myhre never married. Myhre is the custodial parent of K.F. K.F. was given his mother's maiden and then-surname at birth. Berger contested paternity, and paternity was established when K.F. was four months old. Berger has exercised visitation with K.F. since K.F. was fifteen months old. In June 2008, Myhre married and changed her surname to Myhre. K.F. retained his surname. In April 2009, Berger petitioned to change K.F.'s surname to Berger so that K.F. would have the same name as one of his parents. Myhre objected. The district court held a hearing on the petition in May 2009, during which both Myhre and Berger testified. The court also considered affidavits from various members of both Berger's and Myhre's families. The district court denied the petition, finding Berger failed to establish proper and reasonable cause to change K.F.'s name and finding there was no showing the name change would be in K.F.'s best interests.

[¶3] Berger appeals, arguing the district court erred in denying the petition to change K.F.'s surname and erred in considering untimely affidavits filed by Myhre.

[¶4] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. §§ 27-05-06 and 32-28-01. Berger's appeal is timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. § 28-27-01.

II.

[¶5] Berger first argues the district court erred in denying his petition to change K.F.'s surname.

A.

[¶6] Section 32-28-02 of the North Dakota Century Code allows for the name change of a petitioner when there is "proper and reasonable cause" for doing so. N.D.C.C. § 32-28-02(3). When reviewing a petition for a name change under N.D.C.C. ch. 32-28, the district court is vested with discretion. Hartleib v. Simes, 2009 ND 205, ¶ 40, 776 N.W.2d 217. When a minor is involved, the requirement of N.D.C.C. § 32-28-02 that the court determine whether there is "proper and reasonable cause" for the proposed name change necessarily includes consideration of the best interests of the child. Id.; see also Grad v. Jepson, 2002 ND 153, ¶ 7, 652 N.W.2d 324.

[¶7] This Court has employed the abuse-of-discretion appellate standard of review to appeals from orders on name change petitions under N.D.C.C. ch. 32-28. Hartleib, 2009 ND 205, ¶ 41, 776 N.W.2d 217; see also Grad, 2002 ND 153, ¶ 5, 652 N.W.2d 324. We have questioned the application of the abuse-of-discretion standard in name change cases involving a minor, however, in light of our application of the clearly erroneous standard of review to cases involving a minor's name change under the Uniform Parentage Act. Hartleib, at ¶ 40; Edwardson v. Lauer, 2004 ND 218, ¶ 5, 689 N.W.2d 407. In Edwardson, we stated:

A decision to order a surname change under [the Uniform Parentage Act] is driven by an examination of the best interests of the child, which is a factual process best suited for clearly erroneous review under N.D.R.Civ.P. 52(a). Although we applied the abuse-of-discretion standard to petitions to change a minor's name under N.D.C.C. ch. 32-28, Grad v. Jepson, 2002 ND 153, ¶¶ 5-7, 652 N.W.2d 324, we recognized that the discretion exercised by the district court necessarily includes consideration of the child's best interests. Id. Given the underlying applicability of the best-interests-of-the-child framework to both of these situations, the abuse-of-discretion standard is necessarily closely aligned to the clearly erroneous standard and it may be appropriate for us to revisit our application of the abuse-of-discretion standard to a petition to change a minor's name under N.D.C.C. ch. 32-28. Nonetheless, as this precise question is not currently before the Court, nor vital to our resolution of this appeal, we reserve this matter for a future case.

Edwardson, at ¶ 5. In Hartleib, we again reserved the standard-of- review question for a future case. See Hartleib, at ¶ 42 (concluding it was unnecessary to decide whether to apply a different standard of ...


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