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In re Petition of Howard

November 05, 2003


Appeal from the Circuit Court of Kane County. No. 02--MR--296 Honorable Michael J. Colwell, Judge, Presiding.

The opinion of the court was delivered by: Justice O'malley


Respondent, Robert Jon Bailey, the father of the minor, Devin K. Bailey, appeals a judgment changing the minor's name to Devin K. Howard. Respondent argues that petitioner, Inara M. Howard, Devin's mother, did not prove by clear and convincing evidence that the name change would be in the minor's best interest as required by section 21--101 of the Code of Civil Procedure (735 5/21--101 (West 2002)). We affirm.

Petitioner and respondent were married in 1991 in California, where Devin was born in the same year. When petitioner and respondent were divorced in 1994, they were awarded joint legal custody of their son. Petitioner received physical custody of Devin. Respondent, who still lives in California, has visitation rights and is obligated to pay child support. On July 25, 2002, petitioner, now living in Carpentersville, filed her petition. Respondent filed an answer, and the cause went to a hearing on September 12, 2002. We summarize the testimony as it is given in the certified bystander's report.

Petitioner testified as follows. After the divorce, she moved with Devin to Tacoma, Washington, and later to Illinois. She remarried in December 1994 and has two other children with her current husband, John J. Howard, Jr. Respondent has not seen Devin in the past four years. Since petitioner and Devin moved to Illinois, two years before the hearing, respondent has never tried to contact either of them by phone. The last time respondent called was when they lived in Tacoma. On this occasion alone, petitioner did not allow respondent to talk to Devin because Devin had been extremely upset by respondent's strange behavior the last time they had spoken. Respondent then began yelling, using profanity, and threatening to kill Mr. Howard. Petitioner neither encourages nor discourages personal or telephone contact between Devin and respondent but lets her son decide for himself. When making decisions affecting Devin's well-being, petitioner never consults with respondent because he has never shown any interest in participating in those decisions.

Petitioner testified that she filed the petition because Devin had repeatedly asked her to change his last name to Howard. Before petitioner filed the petition, Devin received a letter or card from respondent once or twice a year. Since filing the petition, petitioner has daily received letters to Devin from respondent. She makes sure Devin reads them. Many of the letters have disturbing contents; for instance, "Petitioner's Exhibit A" (not in the record) is the cover from a CD by respondent's rock band, "Serious Suicide," and shows respondent making an obscene gesture. Since moving to Illinois, petitioner has received a monthly child support check for $63, written by respondent's father and drawn on the two Baileys' joint account. Before that, respondent's payments were sporadic. The envelopes containing the current checks are addressed by respondent but include no inquiries about Devin's welfare. Asked to describe the father-son relationship, petitioner said there is none and has been none since Devin was born.

John J. Howard, Jr., testified that he has been married to petitioner for 7½ years. He considers Devin to be his own child because he has acted as Devin's father for most of the boy's life. The family already refers to Devin by the surname "Howard," not "Bailey."

Respondent testified as follows. He regularly pays his court-ordered child support. For the first four years after the divorce, he tried to maintain a close relationship with Devin by visiting regularly. At the hearing, photographs showing the father-son relationship were introduced into evidence. Copies of these photographs are in the record on appeal. Financial and medical problems (not further specified) have kept respondent from traveling to visit Devin for the past four years. Respondent tries to call his son regularly but is not granted access to the child. Respondent writes his son regularly. He wants to have a close relationship with Devin and remain actively interested in the child's life.

Devin Bailey was questioned in chambers by the trial judge with counsel present. Devin testified as follows. He has not seen his father in four years and does not have a relationship with him. His father has not called him since Devin moved to Illinois. Once, while Devin and his grandmother were talking by phone, the grandmother offered to put respondent on, but (we quote the bystander's report) "he told her not to, because he did not wish to speak to him." Before the petition for a name change was filed, Devin rarely received mail from his father. Since the petition was filed, Devin has regularly received mail from respondent, but "much of it is strange and nonsensical and makes [Devin] uncomfortable."

Devin told the court that it was his idea to have his name changed. At first, petitioner said no, but finally she agreed. Devin wants the change because he considers the Howards his real family; because it is difficult in school and other activities to have a last name different from that of the rest of his family; and because he does not want to share the last name of "a man who has never acted like his father or cared about him."

The bystander's report states that the trial judge found as follows:

"a) That the testimony of the mother and father canceled each other out[,] which left him with the child's wishes.
b) The child stated he wanted to be called by his new name because it made him feel like part of the family.
c) Child said he did not have a relationship with his father because he has not seen much of him."
The trial judge decided to allow the name change because Devin wanted it and because Devin experienced difficulties in school and recreational activities as a result of having a last name different from the rest of his family. After the court granted the petition, respondent timely appealed.

Respondent argues that the trial court abused its discretion in allowing the name change petition because petitioner failed to prove by clear and convincing evidence that the change was in the minor's best interest. Respondent asserts that the trial court unduly emphasized the wishes of a minor who is still developing emotionally; that the inconvenience Devin experiences in school and recreation is not a compelling reason for the name change; and that the trial court slighted the importance of maintaining a strong relationship between the child and the non-custodial parent.

Petitioner has not filed a brief. However, as the record is short and the issues are straightforward, we may decide the merits without the aid of an appellee's brief. See First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128 (1976). For the reasons that ...

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