COA reverses child’s name change, father’s child support obligation

The Indiana Court of Appeals has remanded a divorce dispute after finding that the trial court erred in legally changing a child’s name and in calculating the father’s child support obligation.

Before giving birth to her son, Callie Faulk moved out of her marital residence and filed for divorce from Brent Faulk. Their son was born in August 2018 and given the surname “Bissell,” his mother’s maiden name, rather than “Faulk,”his father’s surname, before the father was able to visit the child in the hospital.

During a March 2020 hearing, the father asked that the child’s surname be changed to Faulk, and the mother asked that his surname either not be changed or be changed to Bissell-Faulk. A dissolution decree issued by the Boone Superior Court, among other things, changed the child’s surname to Bissell-Faulk and ordered that father pay $208 per week in child support.

Father appealed, and the Indiana Court of Appeals in a Monday decision affirmed in part, reversed in part and remanded in the case of Brent C. Faulk v. Callie J. (Bissell) Faulk, 20A-DC-1432.

The appellate panel first held that the trial court erred in changing the child’s surname to “Bissell-Faulk,” finding it had no authority to do so.

“The only statute that would authorize a name change for Child is Indiana Code Section 34-28-2-2, which requires ‘a parent or guardian who wishes to change the name of a child’ to file a petition, which ‘must be verified’ and ‘must state in detail the reason the change is requested,’” Judge Terry Crone wrote for the appellate court.

Finding that none of the required procedures were followed in the case at hand, the appellate panel reversed and remanded with instructions to vacate the child’s name change.

The COA likewise found that the trial court abused its discretion by not imputing income to mother in calculating her weekly gross income for child support purposes. It noted that in calculating mother’s weekly gross income, the trial court used her annual salary of $48,000 as a schoolteacher.

“Although Mother is gainfully employed in a full-time position, her decision not to seek work during her summer break is guided by her desire to spend time with Child and to avoid incurring more childcare costs,” Crone wrote. “… Nevertheless, Mother’s rent-free living arrangement with her parents unquestionably reduces her living expenses and frees up money to support Child. Accordingly, we reverse and remand with instructions to include the value of Mother’s in-kind benefits in the calculation of her weekly gross income for child support purposes and amend the decree accordingly.”

Lastly, the appellate panel found no abuse of the trial court’s discretion in adopting an 11% true-up for calculating father’s child support obligation or in placing limits on father’s opportunities for additional parenting time.

Writing separately, Judge Patricia Riley penned a partial dissent from the panel’s analysis and conclusion about the father’s request to change the child’s surname.

“Even though I agree with the majority’s analysis that the legislature instituted a procedure for the name change of a minor child in Ind. Code Ch. 34-28-2, it should be noted that neither the parties nor the trial court relied on this statute or proceeding but rather formulated the request for the name change as an issue within the framework of the dissolution proceeding and Mother did not object to proceeding as such,” Riley wrote.

“… I acknowledge that there has been a change in modern attitudes and practices regarding the surname of children born in and out of wedlock. Thus, I do not suggest, as was considered in (Laks v. Laks, 540 P.E.2d 1277 (Ct. App. Ariz. 1975)) that predominant consideration should be given to a father’s interest in preserving the family name through his child, nor do I suggest that a traditional right exists for a child to bear his or her father’s surname,” she continued. “However, in light of the specific circumstances of this case, I cannot conclude that it would be in the Child’s best interest to be given a hyphenated family name. … Accordingly, based on the evidence before us, I find that the trial court abused its discretion by hyphenating the Child’s surname.”