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In Re Marriage of Thomas

OPINION FILED OCTOBER 14, 1981.

IN RE MARRIAGE OF GENEVA THOMAS, PETITIONER-APPELLANT, AND DONALD THOMAS, RESPONDENT-APPELLEE.


APPEAL from the Circuit Court of Cook County; the Hon. RENE GOIER, Judge, presiding.

MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT:

Petitioner, Geneva Thomas, was granted dissolution of her marriage and given custody of her two children, ages 4 and 10. The judgment of dissolution, however, denied her the use of her maiden name. From that portion of the judgment petitioner appeals.

At the hearing below, petitioner was asked by her counsel if she wished to resume her maiden name, she answered yes, and this colloquy followed:

"THE COURT: Mrs. Thomas, I always consider the best interest of the children, do you feel that by you assuming another name and the children having the name Thomas, that it won't confuse the children?

THE WITNESS: I don't know.

THE COURT: Well, if you don't know, I am not going to let you resume your former name.

MS. ROGAL: I believe she has a basic right to resume it just for asking for it.

THE COURT: Under the best interest — if she is telling me she is doing it for professional use —

MS. ROGAL: The Act says —

THE COURT: It has never been tested. Take it up. Her petition is denied."

This was all of the evidence before the trial court on the issue of the restoration of petitioner's maiden name.

Petitioner contends that the trial court erred in denying her request, asserting that the statutory language is mandatory and leaves the court no discretion as to whether to grant or deny a request for restoration of a maiden name. The Appellate Court, Fourth District, in a recent case has so construed the statute. (In re Marriage of Dorks (1981), 98 Ill. App.3d 1046.) Section 413(c) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 413(c)) provides, "Upon request by a wife whose marriage is dissolved or declared invalid, the court shall order her maiden name or a former married name restored."

• 1 By the common law, every person is free not only to assume any surname he or she pleases, but also to change it at any time. In Reinken v. Reinken (1933), 351 Ill. 409, 413, 184 N.E. 639, our supreme court said:

"At common law, and in the absence of statutory restriction, an individual may lawfully change his name without resort to any legal proceedings, and for all purposes the name thus assumed will constitute his legal name just as much as if he had borne it from birth. (45 Corpus Juris, 381.) Our `act to revise the law in relation to names' [citation] permits an individual to apply to the circuit court for the entry of an order changing his name. These statutory provisions are, however, not exclusive but are merely ...


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