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In re Marriage of Sheri Ann Charnogorsky

December 18, 1998


The opinion of the court was delivered by: Justice Greiman

Appeal from the Circuit Court of Cook County. The Honorable Lisa Murphy, Judge Presiding.

After the circuit court dissolved the marriage of respondent Jeffery T. Charnogorsky and petitioner Sheri Ann Charnogorsky, n/k/a Sheri Ann Hickey, a daughter was born to the parties. Respondent filed a petition predicated upon an agreement between the parties to require petitioner to use the last name of each parent (Charnogorsky Hickey) for the child and the circuit court, finding no such agreement, denied the petition. Respondent then filed a petition to change the child's name, but the circuit court denied that petition, ruling that respondent lacked standing under the applicable statute. Respondent now appeals, arguing (1) that the circuit court erred in dismissing his petition to require petitioner to use Charnogorsky Hickey as the child's last name; (2) that the circuit court erred in finding that he lacked standing to bring a petition to change the child's name; and (3) that the statute that provides for a change of a child's name violates the equal protection requirements of the United States Constitution and the Illinois Constitution. We affirm.

On August 31, 1990, the circuit court dissolved the parties' marriage. At that time, no children had been born but petitioner was pregnant with respondent's child. The judgment was based upon an agreement of the parties that included several provisions regarding custody and visitation of the unborn child. However, the judgment reserved the issues pertaining to the child until after its birth.

On October 15, 1990, petitioner gave birth to a daughter. On November 2, 1990, a supplemental judgment of dissolution was entered pursuant to the parties' agreement. That judgment provided that petitioner had "sole legal and physical care, custody, control and education of the minor child" and that respondent had "reasonable visitation." The judgment further stated that while respondent could participate, petitioner had "the final decision regarding all aspects and issues concerning the child, including but not limited to the child's health, education, welfare, and religion." The child's name is not mentioned in the judgment; she is only referred to as "the child."

On October 22, 1996, respondent petitioned the court to require petitioner to use the child's last name of Charnogorsky Hickey when required to provide the child's last name. The petition alleged that the child's legal name as listed on her birth certificate was Meagan Elyse Charnogorsky Hickey, but that respondent had discovered that the child was registered as Meagan Hickey in school. Respondent alleged that petitioner never obtained a court order to change the child's name and that petitioner had no legal basis for unilaterally registering Meagan under the last name of Hickey. Respondent requested the court to enter an order directing petitioner to use the child's correct last name of Charnogorsky Hickey.

Respondent filed a memorandum in support of his petition, alleging that the parties agreed that both parents' names would be used by the child. A copy of the child's birth certificate was attached to the memorandum. The certificate states that the child's name is "Meagan Elyse Charnogorsky Hickey." The certificate does not definitively state which names are intended to be the middle name and which are the last name. However, there is a larger space between Charnogorsky and Hickey than between Elyse and Charnogorsky. Only petitioner signed the certificate.

Petitioner responded, contending that Charnogorsky was the child's second middle name and denying that the parties agreed to use both parents' last names as Meagan's last name. Petitioner asked the court to dismiss the petition.

During a hearing on the matter, respondent testified that before he and petitioner divorced they discussed names for the child and narrowed their choices down to Meagan or Chelsea. Respondent recalled a Discussion at petitioner's parents' house where they discussed that they did not like how Chelsea Charnogorsky sounded and so they were going to use Meagan. Respondent further stated that Elyse was the name that petitioner wanted to use for the middle name and they thought Meagan Elyse Charnogorsky sounded fine.

Respondent further stated that he expected that the name was going to be Meagan Elyse Charnogorsky. He did not expect that Hickey would also be used when they were married. He was unsure as to when he first became aware that petitioner was using the name of Hickey. However, based on the birth certificate, which stated "Meagan Elyse Charnogorsky Hickey," he expected that the child would be called Meagan Charnogorsky Hickey.

Respondent testified that the first order he received from the court for initial visitation referred to the child as Meagan Elyse Charnogorsky-Hickey. He was first aware that the child might not be using Meagan Charnogorsky Hickey when he received copies of labels of prescription bottles in 1994. He called petitioner and she stated that Charnogorsky Hickey would not fit on the label.

Respondent also stated that he had been making investments in a trust fund for Meagan pursuant to the court order and that the title to the account included a hyphen between Charnogorsky and Hickey. He mailed copies of the statements to petitioner, who did not advise him that this was not the child's correct name.

In the fall of 1996 when Meagan was in kindergarten, respondent attended an open house and Meagan was listed as Hickey, Meagan. He then called petitioner and she told him for the first time that Hickey is Meagan's last name, Charnogorsky is Meagan's second middle name. Respondent testified that Meagan was listed at her preschool and pediatrician's office as Charnogorsky Hickey. The court asked respondent if they ever had any specific conversations regarding what last name the child would use and respondent stated "Yes." However, he then referred only to the conversation before the dissolution in which they decided that they did not like the way Chelsea Charnogorsky sounded. Respondent could not recall discussing what the child's name would be after he and petitioner separated.

Respondent stated that he did not know if petitioner signed the earlier order with the child's last name being hyphenated before it was entered. He did not communicate with petitioner as to how the child's name would be listed on the investment account prior to opening it and he did not know who created the records at the preschool or the pediatrician's office. He admitted that the wristband on the child at the hospital at birth stated "Hickey." At that time, he spoke to the nurses and the card on the bassinet was changed to "Charnogorsky Hickey." He did not mention this to petitioner.

Petitioner testified that while she and respondent were married they discussed Meagan's first and middle name. She did not recall the conversation at her parent's home discussing the child's potential names, but she did not deny it and she admitted that they discussed the names Meagan and Chelsea. Petitioner stated that the first time she told respondent that the child's last name was Hickey, not Charnogorsky Hickey, was in 1996 when respondent called her complaining that the health insurance company was not using her full name on medical forms.

Petitioner admitted that prior to the separation she never told respondent that she was not going to use Charnogorsky as the child's name and she decided around the time of Meagan's birth that she planned to use "Hickey." She acknowledged that she never obtained respondent's consent to use the last name Hickey and she never sent him anything in writing indicating that she was only using that last name. She testified that she believed the child's first name to be Meagan, the middle name to be Elyse Charnogorsky and the last name to be Hickey. Petitioner has sole custody of the child. She did not ...

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