Appeal from Mobile Probate Court (PR-12-2270)
On Application for Rehearing
This Court's opinion of May 9, 2014, is withdrawn, and the following is substituted therefor.
Keone Kaukawele Fuqua ("the father") filed a petition in the Mobile Probate Court asking that court to allow him to change the legal name of his daughter from Lyvia Grace Russell to Lyvia Grace Russell-Fuqua. Megan Marie Russell ("the mother") opposed the petition, and she appeals from a probate court order granting the relief requested by the father. For the reasons explained below, we conclude that the probate court had no subject-matter jurisdiction over the parties' name-change dispute, and we therefore vacate the order and dismiss the appeal.
Facts and Procedural History
The mother and the father were married but did not reside in the same home when Lyvia Grace ("the child") was born in April 2010. It is undisputed that the father is the biological father of the child. It is also undisputed that, when the mother provided information for the child's birth certificate, she refused to provide the name of the child's father and did not include the father's surname as part of the child's name.
At some point after the child's birth, the father filed a complaint in the Mobile Circuit Court for a divorce. In January 2011, the circuit court entered a judgment granting the father's complaint. As to the child, the divorce judgment awarded the mother custody, awarded the father visitation, and required the father to pay child support. The circuit court's divorce judgment also stated "that the [mother] is ordered to add the [father's] name to the child's ... birth certificate as the father." Further, the divorce judgment states "that the Court retains jurisdiction in this cause for purpose of making such other or future orders or decrees as to the custody, support and maintenance of the minor child as the Court may deem necessary or as changed conditions require."
The mother prepared the documents necessary to add the father's name to the birth certificate, but the father refused to sign the documents because he believed that by signing the documents he was agreeing that the child's legal name would be "Lyvia Grace Russell." Thereafter, the father filed in the probate court the petition to change the child's name. As noted above, the mother objected. Also, we note that there was no dispute between the father and the mother as to the child's legitimacy and that the father's petition to change the child's name did not purport to seek legitimation of the child.
After an ore tenus proceeding, the probate court entered an order that states:
"The [mother] and [the father] have an acrimonious relationship with each other. The testimony presented to the Court reflects that the [mother's] parents (with whom the [mother] and the [child] reside) also have a poor relationship with the [father].
"The [father] is current on payments of child support due since ... the Judgment of Divorce. The [father] exercises his visitation rights vis-à-vis the [child].
"... The [father] by action and words seems sincere in having a parental-child relationship with the [child]. The [mother's] demeanor while testifying before the Court calls into question the reliability of [her] testimony ...