Schroeder v. Broadfoot

DEBORAH S. EYLER, Judge. In a paternity and custody case between Kathleen Schroeder (“Kathleen”), the appellant, and Roland Broadfoot, Jr. (“Roland”), the appellee, the Circuit Court for Carroll County passed an order directing that the surname of the parties’ child be Broadfoot. Kathleen appealed the order, contending the circuit court’s ruling was an abuse of discretion. We agree with her, and shall vacate the order and remand the case for further proceedings not inconsistent with this opinion.

FACTS AND PROCEEDINGS The child at the center of this dispute was born on July 6, 1998, to parents who were not married and were in a relationship that had become strained and unstable well before he was bom. At birth, Kathleen named the child Robert John Schroeder (“Robert”). On July 10, 1998, Roland filed a Complaint for Blood Testing and Other Relief against Kathleen, in the Circuit Court for Carroll County. He did not acknowledge paternity of Robert, but admitted to the “possibility” of the same.

Seven days later, Kathleen filed a Complaint to Establish Paternity, Custody, and Child Support against Roland, in the Circuit Court for Baltimore County, alleging that Roland is Robert’s father. Soon thereafter, blood testing was performed, upon agreement of the parties, and on August 28, 1998, the test results established Roland’s paternity. Several months later, Roland amended his complaint to seek custody and a change in Robert’s surname, from Schroeder to Broadfoot. Ultimately, the Circuit Court for Baltimore County transferred Kathleen’s case against Roland to the Circuit Court for Carroll County, and all of the claims were consolidated in that court.

After a period of discovery, the parties resolved their disputes by agreement, except the dispute over Robert’s last ⁵⁷² name. On March 22, 2001, when Robert was 22k years old, the circuit court held a hearing on that issue. In addition to the facts we have recited so far, the following evidence was adduced. Kathleen was 39 years old when the hearing took place.

Sixteen years earlier, when she was 23, she had married a man named Brent Schroeder, and had assumed Schroeder as her last name. (Kathleen’s maiden name is Traynor.) During that marriage, Kathleen gave birth to three children, all of whom bear the surname Schroeder. The Schroeders were divorced in 1995, and Kathleen was granted custody of the children. Kathleen chose to keep the surname Schroeder, and has used that name ever since.

In 1997, Kathleen became involved in a relationship with Roland, and soon became pregnant. The relationship was fraught with problems. According to Roland, during the pregnancy, he and Kathleen discussed the last name the child would be given and agreed upon the surname Broadfoot. According to Kathleen, no such discussion took place.

To the contrary, she made it clear to Roland that she intended to give the child the surname Schroeder. When Robert was born, Kathleen did not state the name of his father on the birth certifícate. 1 Roland testified that he did not know that Kath ⁵⁷³ leen had given Robert the surname Schroeder until Robert was several weeks old. Since birth, Robert has lived with Kathleen and his three half-siblings, with whom he is close. The half-siblings spend on average two weekends a month -with their father, at his house.

When Kathleen transports them to their father’s house for this “exchange,” Robert accompanies her. According to Kathleen, Robert understands that his half-siblings go to their father’s house to spend time with him and understands that his father and their father are two different men. Robert’s half-siblings understand this too. They also know that Kathleen has a maiden name, but does not use it as her last name.

Robert calls Roland “Daddy” and recognizes him as his father. According to Roland, Robert knows that he is his father, and is not confused about that fact. Kathleen testified that Robert knows all three of his names, and when asked his name will say, “Robert John Schroeder.” Roland disagreed, testifying that Robert knows his first and middle names, but not his last name. Starting soon after Robert’s birth, and until January 1999, Roland had visitation with Robert several times a month.

The visits took place at Roland’s mother’s house, where he lives, and in the presence of his mother and sister. From January 1999, until September 16, 1999, these visits occurred every other weekend and on Tuesday evenings. On September 16, 1999, Kathleen sought and obtained a domestic violence protective order against Roland. From then until February 2000, Roland’s visits with Robert were supervised, and took place once a week.

At that point, Roland began serving a prison sentence for an alcohol-related driving offense. Roland decided it would not be best for Robert to ⁵⁷⁴ attend visitation in prison, and therefore elected not to have visitation. The record does not reveal the length of Roland’s prison term, but discloses that he was on work release. Robert testified that he has paid child support for Robert from the time of Robert’s birth.

He has never been in arrears. When asked why he wants Robert to have his last name, Roland gave five reasons. First, Robert “is [his] first son and only child,” and therefore should have his name. Second, children should “carry” the names of their fathers, not their mothers.

Third, as Robert grows up, it will be confusing to him to have to explain why his last name is different from Roland’s last name. Fourth, Robert also will become confused over whether his mother’s ex-husband (Brent Schroeder) is his father. Finally, it is “not natural” and “not the honest truth” for Robert to have the last name Schroeder. Roland explained that the last name Schroeder is “Brent Schroeder’s name,” not Kathleen’s name, and is just “the name she uses, right now.” Kathleen testified that she wants Robert to use the last name Schroeder so he will feel secure and identify with her and his half-siblings, who constitute the family unit he lives with.

She explained that she kept the name Schroeder after her divorce because she wanted her children to identify with her, and she wants the same for Robert. She is fearful that if Robert’s last name is not the same as hers and his half-siblings, others may tease him or leave him out or treat him differently, in a bad way. In Kathleen’s view, it should be left to Robert to decide, when he is older, whether he wants to use the last name Broadfoot, instead of Schroeder; and she will support him in whatever decision he makes. Kathleen wants Robert to continue to have a strong and positive father-son relationship with Roland, and will act in accordance with that objective.

The custody, visitation, and support agreement between the parties was put on the record and ultimately documented in a written order. It gave Kathleen legal and physical custody of ⁵⁷⁵ Robert with Roland having visitation on a phased-in schedule beginning with supervised visitation in April through June 2001, and increasing to unsupervised visitation, every other weekend and Tuesday nights, in July 2001, and thereafter. After closing arguments of counsel, the court explained that it was going to hold the matter sub curia and issue a written ruling, but it already had concluded that the mere fact that Roland is Robert’s father and thinks that children should “carry” their father’s surnames was not reason to give Robert the last name Broadfoot. The court remarked, however, that it “ha[d] some concern about whether there is some confusion or would be some confusion in Robert’s mind.” On April 26, 2001, the court issued a memorandum opinion and order directing that Robert’s surname be “changed” from Schroeder to Broadfoot.

After explaining that the decision about the proper surname for Robert was controlled by the best interests of the child standard, the court commented that, if Kathleen had elected to resume the use of her maiden name after her divorce, it “would have [had] no difficulty in finding that it would be in Robert’s best interest to keep the name he had been given at birth,” i.e., Kathleen’s maiden name. The court then stated that because Robert knows that Roland is his father, and the two have bonded in a father-son relationship, “it is likely that Robert will be confused as he gets older as to why he bears the surname of someone who is not his father.” Kathleen noted a timely appeal, presenting the question whether the trial court abused its discretion in ruling that it is in Robert’s best interest to have the surname Broadfoot. DISCUSSION Kathleen contends that there is no factual basis in the evidence for the court’s decision that Robert’s best interests will be served by giving him his father’s surname and therefore the court’s decision was an abuse of discretion. Specifically, she complains that because the evidence showed without contradiction that Robert is not confused about who his father ⁵⁷⁶ is, or why he does hot use his father’s last name, there was no evidentiary basis for the court’s finding that unless Robert takes his father’s surname he will suffer from confusion in the future.

In addition, Kathleen maintains that the court’s revelation that had she resumed the use of her maiden name, it would have found giving her surname to Robert to be in his best interests, and the court’s comment that Robert will be confused in the future as to “why he bears the surname of someone who is not his father,” show that the court evaluated the surname Schroeder as if it were not her surname, but merely the surname of her ex-husband. Roland responds that the trial court’s ruling was grounded in the evidence, and was based on a proper consideration of factors that, while stated in prior cases about the standard for changing a child’s name the parents once agreed upon, and therefore somewhat different from this case, nevertheless are relevant to both situations. Maryland follows the common law of names, that in the absence of a statute to the contrary, a person may take and use any name he wants, so long as his purpose is not fraudulent and the use of the name does not interfere with the rights of others. Stuart v. Board of Supervisors, 266 Md. 440, 446 , 295 A.2d 223 (1972) (holding that because, at common law, a person may “adopt any name by which he may become known, and by which he may transact business and execute contracts and sue or be sued,” a woman may retain her birth name after marriage merely by consistently and nonfraudulently using it) (citation omitted).

See also Romans v. State, 178 Md. 588, 597 , 16 A.2d 642 (1940) (holding, that a person may be prosecuted under any name he has adopted or assumed). In Hall v. Hall, 30 Md.App. 214 , 351 A.2d 917 (1976), then-Chief Judge Orth, writing for this Court, explained: The common law recognized that an individual could change the given name, surname, or both, by which the community knew him merely by assuming a new one, with the restriction that the change could not be effected for fraudulent purposes or to interfere with the rights of others. The ⁵⁷⁷ common law sprang and was gradually developed out of the groundwork of custom. It was the ancient custom for the son to adopt a surname at will, regardless of that borne by his father, and the practice extended to the given name also.

Id. at 219 , 351 A.2d 917 (footnotes omitted) (citing Smith v. United States Casualty Co., 197 N.Y. 420, 428 , 90 N.E. 947, 950 (1910) (“The elementary writers are uniform in laying down the rule that at common law a man may change his name at will.”)). The statutes and rules governing change of name “are not to be interpreted as the exclusive manner in which a name may be changed, ... but are in furtherance of and confer an official sanction upon a common law prerogative.” Klein v. Klein, 36 Md.App. 177, 181 , 373 A.2d 86 (1977). The use of surnames originated in France, 2 was imported to England with the Norman Conquest in 1066, and became an established tradition by virtue of necessity. The sudden growth in population and a dearth of given, or “Christianx,” names resulted in many people having the same name, and provoked the need for a way to distinguish among them.

Gubernat v. Deremer, 140 N.J. 120, 127 , 657 A.2d 856 (1995) (citing Richard H. Thornton, Note, The Controversy Over Children’s Surnames: Familial Autonomy, Equal Protection and the Child’s Best Interests, 1979 Utah L.Rev. 303, 305, and G.S. Arnold, Note, Personal Names, 15 Yale L.J. 227 , 227 (1906)); see also Comment: In the Name of the Father: Wisconsin’s Antiquated Approach to Child Name Changes in Post-Divorce and Paternity Proceedings, 83 Marq. L.Rev. 279, 282 (1999). Surnames were derived from a number of sources, the most common being a person’s place of origin, his trade, profession, or craft, his father’s last name, or his most distinctive physical characteristic or personality trait. In re Schiffman, 28 Cal.3d 640 , 643, 169 Cal.Rptr. 918 , 620 P.2d 579 (1980); 83 Marq.

L.Rev. at 282-83. The Norman Conquest also introduced the ⁵⁷⁸ feudal system to England; that system carried the custom of naming sons after their fathers as a convenience, so “ ‘the feudal lord could thus more easily identify sons of the soldiers most loyal to him.’ ” Gubernat v. Deremer, supra, 140 N.J. at 128 , 657 A.2d 856 (quoting Beverly S. Seng, Like Father, Like Child: The Rights of Parents in Their Children’s Surnames, 70 Va. L.Rev. 1303, 1324 (1984)). Nevertheless, the practice of adopting one’s father’s surname, known as “patronymics,” did not predominate in the early days of surnames, and many people took their mothers’ surnames: Inquiry into the naming practices of Western societies demonstrates that names ordinarily express kinship, but not necessarily paternity.

Matronymics, names derived from the maternal line, have been employed in several Western cultures, including modern Spain and medieval England. In England, at least as late as the fourteenth century, both sons and daughters adopted their mother’s surnames, often upon succeeding to their mothers’ estates or in hopes of doing so. Seng, supra, 70 Va. L.Rev. at 1321-22 (footnotes omitted).

The widespread custom of using paternal surnames eventually developed over time as a by-product of primogeniture, and the concomitant secondary status of women in law and society, which were central to the medieval property structure that emerged in the Fourteenth Century. The doctrine of primogeniture, under which the first-born male of parents had the exclusive right to inheritance, elevated the importance of sons taking their fathers’ surnames to ease proof of inheritance rights. Conversely, because under the doctrine of “cover-ture,” all marital property was vested in and controlled by the husband, with the wife being legally disabled and thus lacking the capacity to own property or enter into contracts, wives came to take the surnames of their husbands and their birth surnames lost relevance. 83 Marq. L.Rev. at 283. “Allowing the husband to determine the surname of [a married couple’s] offspring was part of that system, wherein he was the sole legal representative of the marriage, its property, and its ⁵⁷⁹ children.” In re Schiffman, supra, 28 Cal.3d at 643, 169 Cal.Rptr. 918 , 620 P.2d 579 .

The custom of giving children born out of wedlock their mother’s surnames likewise derived from primogeniture and women’s secondary status in the legal and social systems. An “illegitimate child” was considered a “’films nullius,” that is, a child of no one, who had no inheritance rights or right to support by his father. Lisa Kelly, Divining the Deep and Inscrutable: Toward a Gender-Neutral, Child-Centered Approach to Child Name-Change Proceedings, 99 W. Va. L.Rev. 1, 4 (1996).

At common law, such a child had no name, and only could establish one by reputation. Gubernat v. Deremer, supra, 140 N.J. at 131 , 657 A.2d 856 . Eventually, the custom developed that such children took their mothers’ names, to distinguish them from their fathers’ “legitimate” children. The legal, property, and societal underpinnings of the sur-naming customs that arose in England and came to be a part of American society no longer exist.

Inheritance laws do not recognize primogeniture, the doctrine of “coverture” and other impediments to women’s legal rights were abolished by passage of the Married Women’s Property Acts, 3 and, in Maryland, equality of rights under the law may not be abridged or denied because of sex, under the State Equal Rights Amendment, Md. Const. Decl. Rts. art. 46. Criminal “bastardy” and ⁵⁸⁰ “fornication” statutes were repealed and replaced by paternity statutes directed at protecting children’s interests, and affording children born out of wedlock the same legal rights and status as all other children.

See Middleton v. Middleton, 329 Md. 627 , 620 A.2d 1363 (1993) (child bom out of wedlock has the right to support); Halsey v. Autry, 293 Md. 53 , 441 A.2d 1056 (1982) (same); Chapter 722, Acts of 1963 (repealing “Bastardy and Fornication” statutes and adding to the Code a new “Paternity Proceedings” subtitle). The naming customs that were outgrowths of the past have survived, however, as customs tend to do, and the tradition still prevails that children of married parents take their father’s surname. With that historical background in place, we turn to the Maryland case law on the subject of children’s surnames. In Lassiter-Geers v. Reichenbach, 303 Md. 88 , 492 A.2d 303 (1985), the Court of Appeals first addressed the question of what standard governs when a court is asked to resolve a dispute between parents over the initial surname for their child.

The Court held that “when a father and mother of a child fail to agree at birth and continue to disagree upon the surname to be given the child, the question is one to be determined upon the basis of the best interest of the child.” 303 Md. at 90 , 492 A.2d 303 . In that case, the parents were married, and both used the surname Reichenbach. They separated shortly before learning the wife was pregnant. Upon giving birth, the mother gave the child the surname Lassiter, which was her maiden name.

The father was not consulted and did not learn for seven months that the child had not been given the last name Reichenbach. The parents were divorced when the child was a year old, and the mother resumed the use of the name Lassiter. The father raised the issue of the child’s last name in the divorce proceeding; by agreement, the issue was reserved for future determination. By the time it came up for a hearing, the mother had remarried and was using the last name Lassiter Geers, a hyphenation of her maiden name and her new husband’s surname. ⁵⁸¹ The trial court ruled that it was in the child’s best interests to have his father’s surname.

The court reasoned that because the mother’s maiden name, Lassiter, was not being used by either parent, the child’s use of that name would prompt people to think, in error, that she was born out of wedlock, which could “ ‘lend[ ] itself to the child being put in an embarrassing position,’ ” which was not in her best interests. 303 Md. at 96 , 492 A.2d 303 . The Court of Appeals affirmed the trial court’s ruling. It distinguished the case from a “change-of-name” case, in which the child’s parents agreed upon a surname, which the child used, but one parent later sought to change it. In that situation, a name change only is warranted if it is in the child’s best interests and the moving party shows “extreme circumstances.” West v. Wright, 263 Md. 297, 299 , 283 A.2d 401 (1971).

By contrast, in Lassiter-Geers (and the case sub judice) the child’s parents never agreed upon a surname for the child, and the child thus “was without a surname,” regardless of what he or she was being called. 303 Md. at 93 , 492 A.2d 303 . The Court held that the inquiry in that situation is “what the surname