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In Re Marriage of Presson



Appeal from the Appellate Court for the Fifth District; heard in that court on appeal from the Circuit court of Saline County, the Hon. Arlie O. Boswell, Judge, presiding.


The question presented here is: Can the divorced father of a seven-year-old boy prevent the child from being called by the surname of his mother's new husband until the child is old enough to legally change his own name?

Herman Wayne Presson (Wayne) and Pamela S. Presson (Pamela) were divorced in 1979. At that time their son, Gregory Wayne Presson (Greg or Gregory), was five years old. In November 1980, less than five weeks after Pamela's marriage to Frederick A. Kelley (Kelley), Wayne received the following letter from Kelley:

"Wayne Presson:

Pamela and I have determined that it is in Gregs best interest to change his name from Gregory Wayne Presson to Gregory Wayne Kelley. Be advised that in future correspondence, legal matters, eet. [sic] Gregs name is now legally Gregory Wayne Kelley.

Any questions, legal, eet. [sic] as per this matter may be addressed to either myself or Attorney of law [names and addresses omitted]."

Shortly thereafter Wayne initiated a petition in the circuit court of Saline County for modification of the judgment of dissolution of marriage praying that Pamela and Kelley be permanently enjoined from legally changing Gregory's name and from using any name other than Gregory Wayne Presson in the school records or in any other context. Wayne, Pamela and Gregory testified at a hearing. Because Pamela agreed that she would not attempt to legally change Gregory's name, the trial judge denied the injunction, but at the same time ordered that "the child shall use the name Gregory Wayne Presson until he is old enough to change it legally himself, and both parties and the child are hereby ordered to use no other name for the child until further order of the court." Pamela appealed, and the appellate court reversed (116 Ill. App.3d 458), holding that the trial court lacked both personal and subject matter jurisdiction and that the trial court abused its discretion when it "virtually ignored" Gregory's testimony regarding the use of both names. Wayne's petition for leave to appeal to this court was allowed (87 Ill.2d R. 315).

The trial court had both personal and subject matter jurisdiction. Although the trial judge stated that he was denying the prayer for injunctive relief, he ordered Wayne, Pamela and Gregory to use no other name for the boy than Gregory Wayne Presson. Since this is an order restraining certain behavior, we do not understand what legal status it could have if it is not an injunction, and we therefore treat it as one.

Subject matter jurisdiction is clear. The appellate court acknowledged that the trial court could order the parents to refrain from instituting legal proceedings to change a minor child's surname, but held that there was no subject matter jurisdiction since the order was directed against the minor. While we agree that the order that was entered was an inappropriate intrusion into internal family affairs, this does not deprive the trial court of subject matter jurisdiction.

Although the question has never come before this court, it has previously been decided by our appellate court. (In re Marriage of Omelson (1983), 112 Ill. App.3d 725; Solomon v. Solomon (1955), 5 Ill. App.2d 297.) We agree with Solomon that changing a child's name is a matter incident to custody of the child, and that the court which had jurisdiction over the divorce can entertain a petition enjoining the name change (5 Ill. App.2d 297, 302).

The change-of-name act of 1874 (Ill. Rev. Stat. 1979, ch. 96, pars. 1 to 3) states in section 1 that a petitioner may include his minor children if the name change is in their best interest; in section 2 that the affidavit for a change of name of a minor must be signed by "the parent or guardian having the legal custody of [the] minor"; and in section 3 that, in case of a minor, the notice of name change must be signed by the parent or guardian. This statute clearly treats the change of name of a minor child as an incident to custody. The standard applied, the best interest of the child, is identical to the standard used for custody determinations by the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 602).

Pamela's suggestion that jurisdiction would extend only to a legal change of name proceeding is without merit because that is not the exclusive means by which an individual can change his name. (Reinken v. Reinken (1933), 351 Ill. 409.) A de facto change accomplished by substituting Kelley for Presson on Gregory's school, medical and other records may have as great an effect on Gregory's daily life as a legal change. Since the court has jurisdiction to enjoin a legal change of name proceeding, it has jurisdiction to enjoin any other formal change of name as well. Cf. Mark v. Kahn (1956), 333 Mass. 517, 131 N.E.2d 758 (school enrollment); Clinton v. Morrow (1952), 220 Ark. 377, 247 S.W.2d 1015 (school enrollment); Hall v. Hall (1976), 30 Md. App. 213, 351 A.2d 917 (name child is called by school teachers and other community members).

The trial judge was also correct in holding that he had personal jurisdiction over Greg. If such jurisdiction were not a necessary incident of a custody determination a court could not order a minor to comply with custody decisions to which the child was not made a party. Although custody orders are usually directed at the parents, the court is, in effect, also ordering the child to reside with one parent and not ...

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