The Indiana Court of Appeals remitted a divorce case after finding that the court made a mistake in legally changing a child’s name and calculating the father’s maintenance obligation.
Before Callie Faulk gave birth to her son, she moved out of her marital home and filed for divorce from Brent Faulk. Their son was born in August 2018 and was given the surname “Bissell”, his mother’s maiden name, instead of “Faulk”, his father’s last name, before the father could visit the child in the hospital.
During a hearing in March 2020, the father asked to change the child’s last name to Faulk and the mother asked to either not change his last name or to change his last name to Bissell-Faulk. A dissolution decree issued by the Boone Superior Court changed the child’s surname to Bissell-Faulk and required the father to pay $ 208 per week for child support.
Father appealed, and the Indiana appeals court upheld, partially overturned, and cited a judgment upheld Monday in part, and referred in the case of Brent C. Faulk v Callie J. (Bissell) Faulk, 20A-DC-1432.
The appellate body first found that the court had wrongly changed the child’s last name to “Bissell-Faulk” and found that it was not empowered to do so.
“The only law that would approve a name change for children is Indiana Code Section 34-28-2-2, which requires a parent or guardian who wishes to change a child’s name to petition to review ‘and ‘Must detail why the change is being requested,’ ”wrote Judge Terry Crone on behalf of the appeals court.
When the Appellate Body found that none of the required procedures had been followed in the present case, it reversed and sent instructions to revoke the child’s name change.
The COA also found that the court had misused its discretion by not assuming any income for the mother when calculating her gross weekly income for maintenance purposes. It found that the court used her $ 48,000 annual school teacher salary in calculating the mother’s gross weekly income.
“Although mom is employed full-time, her decision not to look for work during her summer break is guided by her desire to spend time with the child and avoid incurring extra childcare costs,” Crone wrote. “… Even so, mother’s rent-free life with her parents undoubtedly reduces her cost of living and frees up money to support the child. Accordingly, we are canceling and remitting instructions to include the value of the mother’s benefits in kind in the calculation of her gross weekly maintenance income, and am amending the decree accordingly. “
Finally, the Appellate Body found no abuse of the court’s discretion by passing an 11% true-up for the calculation of the father’s maintenance obligation or limiting the father’s options for additional parental leave.
Judge Patricia Riley wrote separately, writing a partial disagreement with the panel’s analysis and conclusion about the father’s request to change the child’s last name.
“Although I agree with the analysis of the majority that the legislature introduced a procedure for changing the name of a minor child in Ind. Code Ch. 34-28-2, it should be noted that neither the parties nor the court relied on this law or procedure, but rather formulated the name change request as an issue under the dissolution process and Mother did not object to the process as such, ”Riley wrote.
“… I admit that modern attitudes and practices regarding the surname of illegitimate and illegitimate children have changed. Therefore, I do not suggest, as set out in (Laks v. Laks, 540 PE2d 1277 (Ct. App. Ariz. 1975)), that a father’s interest in the preservation of the family name by his child should predominantly be taken into account, nor do I suggest suggest that a child traditionally has the right to use his father’s surname? She continued. “However, given the particular circumstances of this case, I cannot conclude that it would be in the best interests of the child to have a separate surname. … Accordingly, based on the evidence available to us, I find that the court abused its discretion by separating the child’s surname. “
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