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In Re Marriage of Omelson

OPINION FILED FEBRUARY 18, 1983.

IN RE MARRIAGE OF VICKI OMELSON, A/K/A VICKI NICHOLS, PETITIONER, AND ROBERT G. OMELSON, RESPONDENT-APPELLANT. — (LORI OMELSON, BY VICKI OMELSON, HER MOTHER AND NEXT FRIEND, PETITIONER-APPELLEE.)


Appeal from the Circuit Court of St. Clair County; the Hon. Dennis Jacobsen, Judge, presiding.

JUSTICE JONES DELIVERED THE OPINION OF THE COURT:

Respondent father appeals from an order of the trial court which granted a petition to change the surname of his minor daughter to that of the new husband of his ex-wife, the mother of his child. We reverse.

The respondent, Robert G. Omelson (father), and Vicki Omelson (mother) were married on May 5, 1972, in St. Clair. One child, Lori, the petitioner, was born of the marriage on May 6, 1975. A judgment of dissolution of marriage was granted to the mother in St. Clair County on February 5, 1980. The judgment of dissolution granted custody of Lori to the mother and conferred visitation rights upon the father, including every weekend from 5 p.m. Friday to 10 p.m. Sunday, certain holidays and four weeks during the summer months. The judgment directed the father to pay $35 per week for support of the child.

The mother married Michael Nichols on June 7, 1980, four months following the dissolution. The father remarried in April 1981. Following her remarriage, the mother and Lori became residents of Collinsville in Madison County. On July 21, 1980, the child, Lori Anne Omelson, by her mother as next friend, filed a petition in the circuit court of Madison County for an order changing her surname to Nichols. At the time this petition was filed, Lori Anne was barely five years old and had resided in the Nichols' home about seven weeks. As required by the applicable statute (Ill. Rev. Stat. 1979, ch. 96, par. 3), notice of the filing of the application for change of name was given by publication. The father was then living and working in Joliet, Illinois, and he learned of the name-change petition from a friend who had seen the publication notice. The father first filed an answer and an affirmative defense in the Madison County proceeding. Two weeks later, in the same St. Clair County case in which the parties had been granted a dissolution of their marriage, the father obtained an order of permanent injunction which restrained the mother "from proceeding with her Petition for Change of Name in the Circuit Court for the Third Judicial Circuit, Madison County, Illinois, in Case No. 80-MR-214 until the further order of this Court." The order of permanent injunction was entered on September 11, 1980.

On September 28, 1981, the daughter, Lori Omelson, by her mother and next friend, filed a second petition for change of her surname to Nichols. The second petition was filed in the same St. Clair County case in which her parents had obtained a dissolution of their marriage and in which the injunction against the Madison County name-change proceeding was obtained. Lori's petition alleged, in its substantive part, that she had "incorporated" into the Nichols household after her mother's marriage, that upon commencing school she has chosen to use the surname of Nichols and that it is in her best interest that her surname be changed to Nichols. Accompanying Lori's petition for change of name was a petition for the mother for an injunction against the father which prayed that he be enjoined from appearing at Lori's school, communicating with Lori's school, disrupting Lori's education, attempting to exercise his right of visitation without the required advance notice and removing Lori from the State of Illinois.

The father filed a response to the petition for change of name in which he answered both the petition for change of name and the mother's petition for injunction. He asserted, in substance, that he wanted his daughter to continue the use of Omelson as her surname, that it was not in the best interest of Lori that her surname be changed to Nichols and that the mother had been guilty of wilful and contumacious conduct in interfering with and denying him his rights of visitation. The father's response ended with a prayer that the petition for change of name be denied and that the mother be held in contempt of court. Hearing was held, followed by a judgment entered November 9, 1981, in which the court found that "it is in the best interest of the parties' minor child that her surname be changed to Nichols; that Vicki Nichols has frustrated respondent's attempt to exercise his right of visitation with said minor child and is in contempt of court." The dispositional portion of the judgment (1) changed the name of the child to Lori Nichols and (2) sentenced the mother to two weeks in jail but stayed the jail sentence indefinitely with the proviso that the contempt would be purged by compliance with the terms of visitation until the child reaches the age of 18 years. Post-trial motions were denied, and the father appeals that portion of the judgment which granted the change in the surname of the child.

This case is one of first impression in Illinois for we find no case in which the issue here has been directly presented. However, the issue has been alluded to in three cases. In Solomon v. Solomon (1955), 5 Ill. App.2d 297, 125 N.E.2d 675, the court held that the matter of a change of name of a minor child of divorced parents is a matter incidental to the custody of the child and that the court which had jurisdiction of the divorce under the Divorce Act (not cited, but probably Ill. Rev. Stat. 1953, ch. 40, par. 1 et seq.) could entertain a petition for injunction to enjoin the custodial parent from instituting any proceeding to change the name of a minor child of the parties. The court observed:

"In determining whether or not any restraint should be put upon plaintiff's action in aiding the minor child to change his name, of course the first and most important consideration before the trial court should be the welfare of the child. The matter is within the discretion of the court. The question of the propriety of the trial court's order is not before us and upon it we express no opinion." (5 Ill. App.2d 297, 301-02, 125 N.E.2d 675, 678.)

In Lawrence v. Lawrence (1980), 86 Ill. App.3d 810, 408 N.E.2d 330, the court considered an appeal from the denial of a petition of a divorced mother for a finding that her ex-husband was not the father of a minor child born during wedlock. Part of the case before the trial court included a change of name of the minor obtained in a separate proceeding brought by the mother without the knowledge of her ex-husband. The trial court entered an order which held that the mother was estopped from challenging the paternity of the minor and directed the mother to change the minor's name back to that of her ex-husband. In affirming, the court gave full credence to the statement in the Solomon case that the most important consideration in a proceeding to procure a change of name for a minor is the best interest of the child. In Weinert v. Weinert (1982), 105 Ill. App.3d 56, 433 N.E.2d 1158, the court considered an appeal from an order which dismissed, without an evidentiary hearing, a petition to modify a divorce decree. The basis of the ex-husband's petition was that there had been a change in the financial condition of both parties and that the ex-wife had remarried and was using the surname of her present husband as the surname of his children, who were in the custody of the ex-wife. The appellate court reversed and remanded for an evidentiary hearing, stating with regard to the name change:

"Petitioner's further allegations that the children refused to visit with and acknowledge petitioner as their father, and the unfortunate possibility respondent may have interfered with petitioner's visitation rights so to keep the children and her new husband as a family unit to the exclusion of petitioner, may also establish substantial changes in circumstances warranting modification of petitioner's obligation. * * *

We turn finally to the matter of the use by the children of their stepfather's surname. Respondent argues the children have a common law right to take any name they may choose, citing Reinken v. Reinken (1933), 351 Ill. 409, 184 N.E. 639. However, the court there noted this right is not absolute and must not interfere with the rights of others 351 Ill. 409, 413, 184 N.E. 639, 640). The interest of petitioner that his sons bear his surname would appear to qualify their right to use their stepfather's surname where the latter has not adopted them and is not legally burdened with an obligation of support. (See Solomon v. Solomon (1955), 5 Ill. App.2d 297, 125 N.E.2d 675; Hall v. Hall (1976), 30 Md. App. 214, 351 A.2d 917.) * * * While the trial court did find that the interests of the children would best be served by allowing them to use the stepfather's surname as they have for the past few years, that determination should be reached only after a hearing where evidence, rather than allegations, can be adduced by both parties. [Citations.] We do not intend by our comments to suggest that conclusion should be reached by the trial judge after a hearing." 105 Ill. App.3d 56, 60, 433 N.E.2d 1158, 1160-61.

There is no lack of cases from other jurisdictions that have considered the issue presented. The common thread that runs through these cases is that the best interest of the child must govern a determination whether or not to grant a change of name. (E.g., Sobel v. Sobel (1957), 46 N.J. Super. 284, 134 A.2d 598; Degerberg v. McCormick (1963), 41 Del. Ch. 46, 187 A.2d 436; West v. Wright (1971), 263 Md. 297, 283 A.2d 401; see Annot., "Rights and remedies of parents inter se with respect to the names of their children," 53 A.L.R.2d 914 (1957).) Since the above-cited Illinois cases assert the same principle, it is the criterion by which this case must be decided. To state the issue briefly, is it in the best interest of Lori Omelson that her surname be changed to Nichols?

The contexts in which the cases have considered whether the best interest of a child will be served by granting a change of name vary widely. Cases involve children who have been abandoned, abused, sexually molested, fathered by one convicted of a heinous or notorious crime, born out of wedlock, and so forth. In such instances it is almost always held that a child's best interest would be served by granting a change of name. See West v. Wright.

We consider in this case, however, the more ordinary circumstance of a dispute involving divorced parents, both of whom have remarried and established separate households. Both parents love the child and both want the best for her. The father is current in his support payments and exercises his right of visitation with reasonable frequency, in view of the fact that he is now a resident of Crown Point, Indiana. The father very much wants Lori to continue to bear his surname. The mother had custody and is charged with the day-to-day guidance, care and nurture of the child. The mother's new husband has children by another marriage who occupy the same household and bear his surname of Nichols. The mother determined that Lori would be spared embarrassment, annoyance, derision and ridicule by her peers and would share a deeper sense of belonging to the newly cast family if her name were changed to ...


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