In re Petition of Sanjuan-Moeller

Case Date: 09/04/2003
Court: 2nd District Appellate
Docket No: 2-02-1249 Rel

No. 2--02--1249


IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT


In re PETITION OF GLADYS ) Appeal from the Circuit Court
SANJUAN-MOELLER, in behalf of ) of Du Page County.
Conrad Wolfgang Moeller )
)
) No. 99--MR--0456
)
(Gladys Sanjuan-Moeller, ) Honorable
Petitioner-Appellee, v. ) Bonnie M. Wheaton,
Kurt P. Moeller, Appellant.) ) Judge, Presiding.

JUSTICE GILLERAN JOHNSON delivered the opinion of the court:

The petitioner, Gladys Sanjuan-Moeller, filed a petition in the circuit court of Du PageCounty to change the name of her minor son from Conrad Wolfgang Moeller to Conrad ArmandoSanjuan-Moeller. The trial court ultimately granted Gladys's petition. Thereafter, Kurt Moeller, theappellant and the boy's father, filed a motion to vacate the order changing Conrad's name, which thetrial court denied. Kurt appeals from the September 3, 1999, and October 15, 2002, orders of thetrial court granting Gladys's petition to change Conrad's name and denying his motion to vacate.

The parties were at one time married. During the marriage, the parties had one child together,Conrad. The parties' marriage was dissolved on November 10, 1999. At that time, Conrad was oneyear old. Following the dissolution of marriage, Kurt exercised his visitation rights with Conrad andpaid child support.

On June 28, 1999, Gladys filed in the chancery division of the trial court a petition pursuantto section 21--101 of the Code of Civil Procedure (the Code) (735 ILCS 5/21--101 (West 1998))seeking to change Conrad's name from Conrad Wolfgang Moeller to Conrad Armando Sanjuan-Moeller. Gladys followed the notice by publication requirements of section 21--103 of the Code(735 ILCS 5/21--103 (West 1998)). However, she did not serve Kurt with personal notice of herpetition. On September 3, 1999, following a hearing, the trial court granted Gladys's petition, findingthat it was in Conrad's best interests that his name be changed.

On September 18, 2002, Kurt filed a motion to vacate the trial court's September 3, 1999,order changing Conrad's name. In his petition, Kurt argued that he was never afforded actual noticeof Gladys's petition to change Conrad's name. On October 15, 2002, the trial court denied Kurt'smotion. Subsequently, Kurt filed a timely notice of appeal.

Before addressing the merits of the appeal, we note that Kurt has filed a motion to strikeGladys's appellee brief for failure to comply with several of the supreme court rules that governappellate briefs. After reviewing Gladys's brief, we find it to be wholly insufficient. In particular,her brief lacks a summary statement and a conclusion and is replete with irrelevant facts outside therecord. See 188 Ill. 2d Rs. 341(e)(1), (e)(6), (e)(8), (f). Furthermore, Gladys cites no authority normakes any legal arguments on her behalf. See 188 Ill. 2d Rs. 341(e)(7), (f). For the above reasons,Gladys's brief is hereby stricken. See Collier v. Avis Rent A Car System, Inc., 248 Ill. App. 3d 1088,1095 (1993) (the appellate court has the authority to strike a party's brief for failure to comply withthe supreme court rules governing briefs). Although we are without an appellee brief, we willnonetheless consider the appeal under the standards enunciated in First Capitol Mortgage Corp. v.Talandis Construction Corp., 63 Ill. 2d 128 (1976).

Turning to the merits of the appeal, Kurt argues that the trial court erred in denying hismotion to vacate the September 3, 1999, order. More specifically, Kurt argues that he was entitledto actual notice of Gladys's petition to change Conrad's name. The question presented by Kurt isa question of law, which we review de novo.

Name changes in Illinois are governed by article XXI of the Code. Section 21--101 of theCode provides that a parent may petition the trial court to change the name of his or her minor child,which the trial court may grant if it finds by clear and convincing evidence that the name change willserve the best interests of the child. 735 ILCS 5/21--101 (West 1998). Section 21--102 of the Codesets forth the required contents of the petition. 735 ILCS 5/21--102 (West 1998). Finally, section21--103 requires notice by publication. 735 ILCS 5/21--103 (West 1998).

Specifically, section 21--103(a) provides:

"Previous notice shall be given of the intended application by publishing a noticethereof in some newspaper published in the municipality in which the person resides if themunicipality is in a county with a population under 2,000,000, or if the person does notreside in a municipality in a county with a population under 2,000,000, or if no newspaperis published in the municipality or if the person resides in a county with a population of2,000,000 or more then in some newspaper published in the county where the person resides***. The notice shall be inserted for 3 consecutive weeks, the first insertion to be at least 6weeks before the return day upon which the petition is to be filed." 735 ILCS 5/21--103(a)(West 1998).

Notably, article XXI does not explicitly require a custodial parent to serve the noncustodial parentwith actual notice. In fact, section 21--103(b) explicitly allows publication in lieu of actual noticeto a custodial or noncustodial parent. Section 21--103(b) provides:

"The publication requirement of subsection (a) shall not be required in anyapplication for a change of name involving a minor if, before making judgment under thisArticle, reasonable notice and opportunity to be heard is given to any parent whose parentalrights have not been previously terminated and to and to any person who has physicalcustody of the child." 735 ILCS 5/21--103(b) (West 1998).

Nevertheless, changing a child's name is a serious and far-reaching action, and, arguably, anoncustodial parent is still entitled to actual notice. Whether a noncustodial parent is entitled toactual notice of a proceeding to change his or her child's name is an issue of first impression inIllinois. We therefore look for guidance from other jurisdictions that have previously addressed thisissue. All of these jurisdictions have taken the position that a noncustodial parent, specifically anoncustodial father, has an interest in the surname of his child and is entitled to actual notice of anyname change proceedings. See In re Application of Tubbs, 620 P.2d 384, 386 (Okla. 1980); see alsoHamman v. County Court, 753 P.2d 743, 747 (Colo. 1988); In re Petition for Change of Name ofHarris, 160 W. Va. 422, 425, 236 S.E.2d 426, 428 (1977).

The Tubbs court in particular went so far as to hold that a decree changing a minor's surnamewithout first affording the noncustodial father actual notice runs afoul of the due process guaranteeof the United States Constitution (U.S. Const., amend. XIV). Tubbs, 620 P.2d at 387. In so holding,the Tubbs court reasoned that a surname, in addition to furnishing a means of identifying a child,signifies a special relationship between the child and his father. Tubbs, 620 P.2d at 387. The Tubbscourt further reasoned that the father-child relationship is oftentimes tenuous following a divorcewhere the mother is awarded custody. It reasoned that a change of a surname could weaken, if notsever, the bond between the noncustodial father and child. Tubbs, 620 P.2d at 387. Finally, theTubbs court reasoned that a father has a protectable interest in maintaining a relationship with hischild. Tubbs, 620 P.2d at 387. The court therefore concluded that a father has a protectable interestin his child's surname, as the surname directly affects the father-child relationship. Tubbs, 620 P.2dat 387.

We find the reasoning in Tubbs to be persuasive. It is undeniable that a noncustodial parentis an interested party in a proceeding to change the surname of his or her child. A noncustodialfather in particular has an interest in his child bearing his surname insomuch as a father's patronymicfosters a continuous and healthy relationship between the father and child. Changing a child'ssurname could adversely affect that relationship. Due process requires that in order for an individualto have his rights or interests in life, liberty, or property affected, that person must be served withnotice and have an opportunity to defend his interests. In re Estate of Hecht, 63 Ill. App. 3d 539, 540(1978).

Accordingly, in conformity with Tubbs, Hamman, and Harris, we hold that a noncustodialparent is entitled to actual notice of proceedings to change his or her child's name. Additionally, weagree with Tubbs that a noncustodial parent is entitled to that notice as a matter of due process,especially when that parent's whereabouts are known or readily ascertainable and the parent isexercising visitation rights and paying child support. Furthermore, we hold that section 21--103(b)of the Code is unconstitutional to the extent that it allows a custodial parent to change the name ofhis or her child without actual notice to the noncustodial parent.

In the present case, Gladys failed to provide Kurt with actual notice of her petition to changeConrad's name. Kurt's whereabouts were known or at least readily ascertainable. Furthermore, hewas exercising visitation rights and paying child support. As explained above, Kurt was entitled toactual notice as a matter of due process. Because Kurt was not afforded actual notice, the trial court'sorder granting Conrad's name change is void ab initio. See Lakeview Trust & Savings Bank v.Estrada, 134 Ill. App. 3d 792, 811 (1985) (orders entered without notice in violation of that party'sdue process rights are void). It follows then that the trial court's subsequent order denying Kurt'smotion to vacate is also void. These orders are therefore vacated.

On a final note, we emphasize that our holding must not be construed as granting anoncustodial parent the power to necessarily prevent a name change. As noted above, of paramountconcern to the trial court when considering a name change of a minor child is the child's bestinterests. Specifically, the trial court should consider (1) the wishes of the child's parents; (2) thewishes of the child; (3) the child's interaction and interrelationship with the parents, custodian, andother persons in the familial relationship; and (4) the child's adjustment to home, school, andcommunity. 735 ILCS 5/21--101 (West 1998). Indeed, after considering the relevant best interestsinquiries, the trial court may very well find that a name change is in the child's best interests. However, a noncustodial parent who is exercising his visitation rights and paying child support mustbe afforded notice and an opportunity to be heard before the trial court makes such a determination.

For the following reasons, the orders of the circuit court of Du Page County are vacated.

Orders vacated.

BOWMAN and GROMETER, JJ., concur.