The June 1, 2011 Court of Appeals opinion in Wilson v. McDonald, 393 S.C. 419, 713 S.E.2d 306 (Ct. App. 2011), is the first demonstration of how the May 9, 2011 Supreme Court opinion in Lewis v. Lewis, 392 S.C. 381, 709 S.E.2d 650 (2011), is changing appellate jurisprudence on family law, as the appellate courts are starting to do detailed factual analysis of family court decisions to comport with their de novo factual finding authority.
Wilson involved an appeal of the family court’s decision not to change a then three year old girl’s last name from the last name of her mother to a hyphenated last name reflecting both parents’ last names. After the family court denied father’s request, father appealed.
On appeal, the Court of Appeals applied the nine-factor test for analyzing name change requests that it first set out in Mazzone v. Miles, 341 S.C. 203, 210, 532 S.E.2d 890, 893 (Ct. App. 2000). These factors, which are not exclusive, are as follows:
(1) the length of time that the child has used the present surname; (2) the effect of the change on the preservation and development of the child’s relationship with each parent; (3) the identification of the child as part of a family unit; (4) the wishes of the parents; (5) the stated reason for the proposed change; (6) the motive of the parents and the possibility that the use of a different name will cause insecurity or a lack of identity; (7) the difficulty, harassment, or embarrassment that the child may experience when the child bears a surname different from the custodial parent; (8) the preference of the child if the child is of an age and maturity to express a meaningful preference; and (9) the degree of community respect associated with the present and proposed surname.
In applying these factors, the Court of Appeals found as follows:
With regard to the first factor, the child was three years old at the time of the hearing and is now almost six years old. “Wilson” has been her last name since birth. The child knew her name even at the time of the hearing, and according to the guardian, announced it with pride. We recognize that McDonald requested the name change when the child was an infant. However, his failure to support Wilson during her pregnancy, his choice not to attend his daughter’s birth, and his failure to take any action on his daughter’s behalf until after he was served with a lawsuit from Wilson, all invited the difficulty he now faces in proving she would be better off with a different last name.
With regard to the second and third factors (relationship with each parent and identification as a family unit), the hyphenation arguably better preserves her relationship with each parent and identity with each family unit. However, according to the guardian, the daughter recognizes both family units already, despite bearing only her mother’s last name.
The fifth and sixth factors (reason for the change and motives of the parties), warrant discussion. McDonald’s stated reason for wanting the change was that he believed the daughter would better identify with his family and that she would benefit in the community from sharing a name similar to his. As noted in the analysis of the first factor, McDonald could have championed these reasons when the birth certificate was filled out, but he chose not to participate. Wilson’s initial motive for excluding “McDonald” from the birth certificate—her fear that McDonald would not be present in her daughter’s life—was legitimate considering McDonald’s history with his twin sons and his absence during the pregnancy and birth here.
Regarding the seventh factor (the difficulty, harassment, or embarrassment the child may experience if the child bears a surname different from the custodial parent), Wilson expressed concern that a hyphenated name was unusual in Anderson County and the combination of names would result in a long, cumbersome surname for her daughter. We find there was little evidence that bearing the mother’s last name alone would be any less embarrassing than having a hyphenated last name. In either event, the child has a name that is different from at least one of her parents. Indeed, when parents create a situation like this, it is beyond the power of the court system in a name-change case to eradicate all of the stigma that might be associated with it.
McDonald argues that the ninth factor—the degree of community respect associated with the present and proposed surname—weighs heavily in favor of hyphenation because he and his family are well known real estate agents in the community and have made significant contributions to charitable causes. Wilson disagreed that McDonald’s last name is well-respected. Based on our review of the record, we find that both parties have good reputations in the community, and while a combination of their last names might better allow their daughter to benefit from the goodwill attached to each last name, this marginal benefit, when weighed against the length of time the child has had her present last name, is not significant enough to satisfy McDonald’s burden of proving that a name change would promote the child’s best interest.
Based on these factual findings, the Court of Appeals concluded, “we agree with the family court’s conclusion that changing the child’s last name to Wilson-McDonald would not be in her best interest. Accordingly, the family court’s order is affirmed.”
Two lessons from Wilson. The general lesson is that the appellate courts are interpreting Lewis as requiring detailed factual findings as part of their de novo review of family court orders. The specific lesson is that fathers seeking to have their out-of-wedlock child share their last name need to demonstrate an interest in parenting that child at or before that child’s birth.
Certainly this area will get more litigation as South Carolina continues to disassociate reproduction from marriage as a cultural practice, regardless of what the legislature and courts are doing.