Emma v. Evans, 424 N.J. Super. 36 (App. Div. 2012). The title of this post is, unsurprisingly, not my own creation. It is the first line of this opinion by Judge Fisher, who borrowed it (with appropriate citation, of course) from Shakespeare. The decision holds that “the presumption in favor of the parent of primary residence when seeking, over the other parent’s objection, a change in the surname” of a child, which arose from Gubernat v. Deremer, 140 N.J. 120 (1995), and Ronan v. Adely, 182 N.J. 103 (2004), does not apply to cases where the child was born in wedlock to parents who later divorce.
Judge Fisher reached this conclusion for a number of reasons. First, Gubernat and Ronan were cases in which the children were born out of wedlock. The wife here argued that dicta in those cases seemed to support the idea that the presumption would apply to children born in wedlock as well. Judge Fisher recognized that the Appellate Division is “bound to apply” Supreme Court dicta. But that dicta did not mandate that the presumption apply to children born in wedlock. Instead, it related only to the “best interests of the child” standard, which the Supreme Court applied to both in-wedlock and out-of-wedlock children.
Second, Judge Fisher cited cases from numerous other states that had rejected the presumption for in-wedlock children. Those authorities were highly persuasive to the panel.
Third, the presumption tends to “create a bias in favor of the maternal surname,” since mothers represent the majority of primary custodial parents. That went against the Supreme Court’s view in Gubernat that disputes over surnames be “free of gender-based notions of parental rights.” Judge Fisher gave several other reasons as well, one of which was the need to avoid making the surname of a child a “bargaining chip in divorce negotiations.”
Finally, though the panel ruled for the husband on the ultimate issue of the presumption, the judges rejected a key procedural argument by the husband. The wife had sought a name change for the child by the vehicle of a cross-motion, in response to the husband’s motion to enjoin her from changing the child’s name. The husband contended that the cross-motion was improper, and that the wife should instead have been required to file a separate complaint for a name change, in accordance with N.J.S.A. 2A:52-1 to -4.
Judge Fisher held that the statute did not provide the exclusive means to obtain a name change, and overruled Viola v. Fundrella, 241 N.J. Super. 304, 309 (Ch. Div. 1990), to the extent that case was to the contrary. The husband’s argument was form over substance, especially since any separate action the wife might have filed would eventually have been consolidated with the divorce case. Moreover, the husband had opened the name change issue by filing his motion.
The panel was correct to rebuff this procedural argument. There is no need for two cases when one will do. Indeed, as Judge Fisher observed, in Ronan, “relief regarding the child’s name was sought by motion in a pending custody and visitation action,” so there was no bar to seeking name change relief by motion.