LANA L. OLSON APPELLANT
ROBERT M. BENNETT APPELLEE
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
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.
AND PROCEDURAL HISTORY
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.
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."
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. 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.
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.
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
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."
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.
At the conclusion of the hearing, the chancellor granted
Bennett's request to change Noah's ...