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Olson v. Bennett

Court of Appeals of Mississippi

December 18, 2018

LANA L. OLSON APPELLANT
v.
ROBERT M. BENNETT APPELLEE

          DATE OF JUDGMENT: 07/25/2017

          HARRISON COUNTY CHANCERY COURT, FIRST JUDICIAL DISTRICT HON. SANFORD R. STECKLER JUDGE

          ATTORNEY FOR APPELLANT: MICHAEL C. HESTER

          ATTORNEY FOR APPELLEE: REED S. BENNETT

         EN BANC.

          WILSON, J.

         ¶1. The issue in this appeal is whether the chancery court erred by changing the surname of a nine-year-old boy at the request of the boy's father and over the objection of the boy's mother. We agree with the mother that the chancery court manifestly erred by changing the boy's name. Therefore, we reverse and render the judgment of the chancery court to that extent.

         FACTS AND PROCEDURAL HISTORY

         ¶2. Noah[1] was born in Gulfport in July 2008. Noah's father, Robert Bennett, was present when Noah was born, but he insisted on a paternity test and refused to sign Noah's birth certificate or be listed as Noah's father. Accordingly, Noah's birth certificate did not list a father, and Noah took the surname of his mother, Lana Olson (Lana). Within three weeks of Noah's birth, a DNA test confirmed that Bennett was Noah's father. However, Bennett took no steps to have his name added to Noah's birth certificate. Nor did Bennett pursue visitation with Noah. Noah has lived with Lana his entire life.

         ¶3. Years passed. At some point, Bennett began paying child support, although the record does not reflect when Bennett began paying support or how much he paid. Otherwise, Bennett was not "in the picture."

         ¶4. In April 2016, Bennett filed a "Complaint for Child Custody and Support, Amendment or Correction of Birth Certificate, and Motion for Temporary Relief" in the Harrison County Chancery Court.[2] Lana and Noah subsequently moved to Kentucky, where they live with Lana's mother, Sharon Olson (Sharon). Lana and Bennett eventually resolved all issues related to child custody and support, and in July 2017 the court entered an "Agreed Order of Custody and Support." The parties did not include the order in the record on appeal, but it apparently awarded physical custody to Lana, grants visitation to Bennett, and orders Bennett to pay child support. Bennett's visitation was described during a hearing as not "the ordinary standard visitation of every other weekend, but . . . simply . . . parcels of time for the four major holidays." Sharon stated that Bennett has visitation with Noah for a total of three months each year.

         ¶5. In July 2017, the chancery court held a hearing on Bennett's request to change Noah's surname, which was the only unresolved issue in the case. Noah was nine years old at the time of the hearing and did not testify. Bennett, Lana, and Sharon testified.

         ¶6. When asked why he wanted to change Noah's name, Bennett answered, "I want him to carry . . . his family name . . . . My father passed my name down to me, and I want to pass it down to my children." Bennett testified that he had no other reason for requesting the name change. Lana acknowledged that Bennett "started paying [child] support some years ago." Otherwise, Bennett was not "in the picture" until he sought visitation in 2016.

         ¶7. Lana and Sharon both testified that they feared that changing Noah's name would have a negative impact on him. Sharon testified that when Noah "started school, he became sullen and angry and uncooperative," and eventually he was "suspended" from school at age five. As a result, Sharon homeschooled Noah for two and a half years until they were able to enroll him in school in Kentucky. Sharon testified that Noah continues to have behavior problems at school, but they have been able to work through the issues with the school. Sharon said they were still in a "tentative situation" with Noah. Sharon was concerned that a name change could make Noah "confused" or "angry" and that someone at school might tease him about his new name. She feared that would lead to "the problem of [Noah] deciding he doesn't want to go to school again." Lana similarly testified that she feared that Noah would be bullied at school because of a sudden name change. Lana also testified, "I feel like . . . Mr. Bennett had opportunities to change the name and decided not to because he felt like the child was not his and didn't want to take responsibility for his child."

         ¶8. At the beginning of the hearing, the chancellor stated that the Mississippi Supreme Court has been "pretty emphatic that the child shall take the last name of the father." The chancellor acknowledged that there is an "exception" to the rule, but he stated that "[t]he exception that's permitted isn't mere embarrassment or confusion for the child or potential embarrassment or confusion or things like that that may result from the name being changed." The chancellor cited Rice v. Merkich, 34 So.3d 555 (Miss. 2010), for this point. The chancellor further stated:

The Court could make an exception . . . if the circumstances are such that it is just really a traumatic kind of thing that would make it just absolutely inappropriate for the child to carry the father's name. [For example, if there is] something seriously wrong with the father, such as, let's say that hypothetically . . . I was trying to think of some reason why I might do this. If the mother were raped and the child was the result of a heinous thing like that. Or the father was a pedophile and had been abusing the child. Or something that's just really just detrimental and the child should not ever have to go around carrying that name. That is a logical reason to do it. You know, you may be able to think of some other reason that the Supreme Court would go along with, but those are the kind of drastic measures that the Supreme Court may or may not.

         ¶9. At the conclusion of the hearing, the chancellor granted Bennett's request to change Noah's ...


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