Stabel v. Meyer

1

No. 103,285

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

CHRISTOPHER STABEL and
KAMRYN ALVIA MEYER, A Minor Child,
By and Through Her Next Friend, CHRISTOPHER STABEL,
Appellees,

v.

JESSIKA LEIGH MEYER,
Appellant.

SYLLABUS BY THE COURT

1.
K.S.A. 38-1130(a) of the Kansas Parentage Act provides that when the parents of
a minor child desire to change the last name of the child to the last name of either parent,
both parents must appear and request the relief.

2.
The legal maxim expressio unius est exclusio alterius—the inclusion of one thing
implies the exclusion of another—limits a Kansas court's jurisdiction in a Kansas
Parentage Act proceeding to change a child's last name to situations where both parents
agree to the request.

Appeal from Ellis District Court; EDWARD E. BOUKER, judge. Opinion filed May 27, 2011.
Reversed.

Leslie A. Hess, of Hays, for appellant.

Kip Johnson, of Oller, Johnson & Bittel, L.L.C., of Hays, for appellees.

Before PIERRON, P.J., ATCHESON, J., and LARSON, S.J.
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PIERRON, J.: This appeal questions a district court's authority to change a child's
last name without both parents' consent in a paternity action brought under the Kansas
Parentage Act (KPA), K.S.A. 38-1110 et seq. Here, the mother, Jessika Leigh Meyer,
appeals from the district court's holding that although case law conflicts, it would follow
cases indicating it had the authority to consider the father's, Christopher Stabel request to
change their child's, Kamryn Alvia Meyer, last name without Jessika's consent.

Jessika was dating Christopher when she became pregnant. On Kamryn's birth
certificate Jessika named Christopher as the father but gave Kamryn her last name—
Meyer. Christopher credits Jessika's refusal to give Kamryn's his last name as the catalyst
that ended their relationship. He requested that the district court change Kamryn's last
name to Stabel as part of his paternity action filed shortly after Kamryn's birth under the
KPA.

As the paternity action progressed, Jessika and Christopher were unable to resolve
the issue of Kamryn's last name. The district court ordered them to submit written
arguments on that issue. Jessika argued the court lacked statutory authority to change
Kamryn's last name without her consent, but even if the court had such authority,
Kamryn's last name should remain Meyer. Christopher insisted the court had discretion to
grant his request based on Kamryn's best interests.

In a memorandum decision, the district court expressed justifiable confusion over
the apparent conflict in the appellate case law relied upon by the parties but ultimately
concluded it had authority to change Kamryn's last name after it heard evidence to
determine if the change was in her best interests. After conducting an evidentiary hearing,
the court ordered Kamryn's last name changed to Stabel.

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Jessika's sole issue on appeal is that the district court lacked statutory authority to
change Kamryn's last name to Stabel because the KPA allows the court to change a
child's surname only if both parents consent, and she did not consent. Christopher
acknowledges there are inconsistent decisions from the appellate courts on the issue and
asks us to either follow the case law supporting the district court's conclusion that it had
authority to change Kamryn's last name based on her best interests or to find that, as a
matter of public policy, a district court should be allowed to determine what surname is
best for a child born of unwed parents.

We have unlimited review over the legal question of whether a court has statutory
authority. See Shipe v. Public Wholesale Water Supply Dist. No. 25, 289 Kan. 160, 165,
210 P.3d 105 (2009). Appellate courts also have unlimited review when, as here, we are
called upon to interpret statutes. See Unruh v. Purina Mills, 289 Kan. 1185, 1193, 221
P.3d 1130 (2009).

K.S.A. 38-1130

Jessika's argument primarily centers around K.S.A. 38-1130, which sets forth a
procedure for parents who jointly desire to have their child's birth certificate amended to
add the name of a parent, correct either parent's name, or change the child's last name to
that of either parent. That statute requires both parents to voluntarily acknowledge
parentage and execute and submit to a district court judge or authorized hearing officer
affidavits attesting to their desire to amend the child's birth registration. K.S.A. 38-
1130(a). Once the parents meet their evidentiary burden, a judge or hearing officer who
finds the birth certificate should be amended effectuates the requested change by
forwarding to the state registrar of vital statistics the parents' affidavits and a certified
order to prepare a new birth registration in the manner as set forth in K.S.A. 38-1128.
K.S.A. 38-1130(b). K.S.A. 38-1130(c) requires the court or hearing officer to then return
all evidence to the child's parents, prohibits charging a fee for performing the name-
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change service, and prohibits the district court from opening a case file or otherwise
making any record of performing the service.

Conflict in case law

The difficulty in resolving this issue stems from apparent inconsistent appellate
decisions that have addressed a district court's authority to consider changing a child's
name in a paternity action. An overview of those decisions sets the stage for the parties'
arguments:

Struble v. Struble, 19 Kan. App. 2d 947, 879 P.2d 37 (1994), involved a custody
and paternity action in which the mother argued the child should carry the name of both
parents, not just the father's, because that had become a cultural norm for a child born of
a nonmarital relationship. In addition to her failure to present that argument at the trial
level, the Struble court found the argument lacked merit. 19 Kan. App. 2d at 948-49.
Struble held that in the absence of statutory law governing the issue of whether a child
born to a nonmarital relationship should have the surname of the mother, father, or both,
a trial court has discretion to decide the child's surname based on the child's best
interests. 19 Kan. App. 2d 947, Syl. The Struble court found that the district court did not
abuse its discretion in ordering the child's surname to be that of the father. 19 Kan. App.
2d at 949.

In Denk v. Taylor, 25 Kan. App. 2d 172, Syl. ¶ 2, 958 P.2d 1172 (1998), the court
interpreted the KPA to conclude the legislature did not grant a district court authority to
change a child's name in a paternity proceeding absent the express consent of both
parents. In so holding, Denk found that courts have specific statutory authority in actions
brought under the KPA only to determine paternity; make orders concerning the child's
support and education, including necessary medical expenses incident to his or her birth;
make custody and visitation orders; and change a child's name with both parents' consent.
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25 Kan. App. 2d at 174-75 (citing K.S.A. 38-1121[c] and [d] and K.S.A. 38-1130). Denk
did not mention Struble.

However, Denk relied on the court's rationale in In re Marriage of Killman, 264
Kan. 33, 42-43, 955 P.2d 1228 (1998), as does Jessika, so the holding in Killman is
worthy of mention. See Denk, 25 Kan. App. 2d at 174.

The Killman court considered a district court's authority to change a child's name
in a divorce proceeding under K.S.A. 1996 Supp. 60-1610, not under the KPA. The
Killman court applied cannons of statutory construction—including the maxim expressio
unius est exclusio alterius (the inclusion of one thing implies the exclusion of another)—
to hold that although the district court had jurisdiction over a child's custody in a divorce
action under K.S.A. 1996 Supp. 60-1610 et seq., it lacked statutory authority to change
the name of a child of the marriage. 264 Kan. at 42-43. In support, our Supreme Court
reasoned: "If the legislature had wished to confer authority to change a child's name in a
divorce action, it would have specifically done so as it did in reference to child support,
education, custody, and restoration of a spouse's former name." 264 Kan. at 43.

In M.L.M. v. Millen, 28 Kan. App. 2d 392, 15 P.3d 857 (2000), the court
acknowledged the holding in Denk and K.S.A. 38-1130's requirement that both parents
agree to a change in their child's birth certificate under that statute. Nevertheless, the
M.L.M. court questioned whether K.S.A. 38-1130 "specifically preclude[ed]" a name
change and concluded without much discussion that Denk did not overrule Struble. 28
Kan. App. 2d at 394. The court seemed particularly concerned by the "factually unique
circumstances" of that case, i.e., because the mother had remarried and the child's last
name did not match the name used by either parent. See 28 Kan. App. 2d at 394. Thus,
the court found:

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"[T]he rationale in Struble better applies to this case. To construe K.S.A. 38-1130 so that
one parent could unilaterally hold the other parent or a court forever hostage as to the
name of a child with no recourse makes no sense, and would be a result certainly not
intended by the legislature. Such a construction would also seem to violate the broad
public policy interests stated in In re Marriage of Ross, 245 Kan. 591, 597, 783 P.2d 331
(1989), where the Supreme Court stated: '[T]he Kansas Parentage Act [is] to provide that
every child has an interest not only in obtaining support, but also in inheritance rights,
family bonds, and accurate identification of his [or her] parentage.'" (Emphasis added.)
M.L.M., 28 Kan. App. 2d at 395.

No mention was made of Killman in M.L.M., perhaps because it was a divorce case and
not a KPA case.

The court in J.N.L.M. v. Miller, 35 Kan. App. 2d 407, 412-13, 130 P.3d 1223
(2006), determined the legal standards applicable in determining the surname of a child
born to a nonmarital relationship, i.e., the court must consider the best interests of the
child and the interests of the parents. In deciding this standard, the J.N.L.M. court did not
specifically consider the issue of a district court's authority to change a name.
Nonetheless, it cites M.L.M.'s adoption of Struble to hold that a court has authority and
discretion to change a nonmarital child's name as long as the court uses the best interest
of the child standard in making the change. J.N.L.M., 35 Kan. App. 2d at 415. Again,
there was no mention of Killman.

The District Court's Decision in the Instant Case

In its memorandum decision, the district court was unsure how to resolve the
seeming conflict between these cases and questioned the M.L.M. court's reasoning.
Specifically, the judge found:

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"[The M.L.M. court] reaches a conclusion which does not appear to follow from the
authority it cites. In other words, Struble was not a case in which jurisdiction to change a
child's name in a paternity action was even considered. In that case, the court proceeded
without even mentioning the issue of whether it or the trial court had jurisdiction.
Therefore, it does not appear that Struble is inconsistent with Denk, which specifically
dealt with the issue, and therefore, when the M.L.M. court relies on Struble as support for
jurisdiction to change a child's name in a paternity case, its reliance appears misplaced.
"Quite frankly, this Court, in evaluating the arguments and case law, experienced
some confusion as to whether it has jurisdiction under the parentage act to change the
name of a child born to unmarried parents. The M.L.M. decision and the J.N.L.M.
decision both say that I do, and the Denk decision says that I do not. All of these opinions
are Court of Appeals decisions, and are clearly in conflict. M.L.M. says Struble survives
Denk, but Struble does not appear to address the issue the [M.L.M. court] gives it credit
for addressing. The [J.N.L.M.] court then simply cites and follows [M.L.M.] in support of
such jurisdiction."

The district court also cited In re Marriage of Cray, 254 Kan. 376, 382, 867 P.2d
291 (1994), which recognized that conflicting opinions from panels of the Court of
Appeals provided a valid ground for granting Supreme Court review under K.S.A. 20-
3018(b), but held that one panel of this court lacks authority to disapprove or overrule
another panel's decision. The district court explained:

"In [r]e Marriage of Cray says that a panel of the Court of Appeals should not
overrule another panel, but it does not say what a District Court, faced with a situation in
which panels of the Court of Appeals apparently disagree is to do in applying the doctrine
of stare decisis. There is no opinion of the Kansas Supreme Court which directly
addresses this issue, so no resolution is to be found in a Supreme Court case."

Recognizing that it lacked the authority to resolve the apparent conflict in cases
from the Court of Appeals and had to "choose a course of action," the district court chose
to follow the view most recently expressed in M.L.M. and J.N.L.M. to conclude it had
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authority under the KPA to change a child's last name by considering evidence under the
best interests of the child standard.

Jessika's Argument

Not surprisingly, Jessika relies on the reasoning in Denk and Killman and supports
the district court's questioning of M.L.M.'s reliance on Struble. In short, her argument
essentially follows the court's reasoning in Denk. That is, she argues the legislature grants
courts specific authority under the KPA to determine the existence or nonexistence of the
parent child relationship (K.S.A. 2010 Supp. 38-1121[a]); amend the child's birth
certificate if it is at odds with the determination of parentage (K.S.A. 2010 Supp. 38-
1121[b]); make provisions for the child's support and education (K.S.A. 2010 Supp. 38-
1121[c]); enter orders regarding custody, residency, and parenting time as the court
considers to be in the child's best interests (K.S.A. 2010 Supp. 38-1121[d]); and amend
the birth certificate to add the name of a parent, correct the name of either parent or the
child, or change the child's last name upon the request of both parents (K.S.A. 38-1130).

Jessika suggests she exercised her statutory right to name Kamryn under K.S.A.
65-2409a (c) and (d), after which Christopher filed his paternity action. Because the
issues to be determined under K.S.A. 2010 Supp. 38-1121 were then resolved by orders
of the district court, Jessika insists the sole issue remaining for determination by the court
was Christopher's request to change Kamryn's last name to Stabel. Applying the maxim
expressio unius est exclusio alterius as applied by the courts in Denk and In re Marriage
of Killman, Jessika urges this court to conclude that because K.S.A. 38-1130 is the
exclusive provision to address changing a child's name under the KPA, the legislature has
not conferred upon the district court the authority to change a child's name without the
consent of both parents under the KPA.

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In arguing for us to follow the reasoning in Denk, Jessika agrees with the district
court's finding that the M.L.M. court's reliance on Struble to support a court's authority is
misplaced because Struble did not even consider that issue. See 19 Kan. App. 2d at 947-
49. Nor was our statutory authority a disputed issue in J.N.L.M., so that case may well be
inapposite. See 35 Kan. App. 2d at 408. Thus, Jessika argues the district court
erroneously relied upon those cases to find it had authority to change Kamryn's last name.

Jessika seems to also attack J.N.M.L.'s consideration of the legal standard under
which appellate courts review whether a district court abuses its discretion in ruling on a
request for a name change. However, it is not necessary for us to consider this contention
because Jessika's sole argument on appeal involves the district court's authority to change
Kamryn's name. As Christopher points out, Jessika does not argue the court used the
wrong standard or erred in concluding that it was in Kamryn's best interests to have
Christopher's last name, so she has waived those issues. See Kingsley v. Kansas Dept. of
Revenue, 288 Kan. 390, 395, 204 P.3d 562 (2009) (issues not briefed by appellant are
deemed waived and abandoned.)

Christopher's Argument

Christopher acknowledges the inconsistencies between Denk and M.L.M., but he
contends Denk failed to consider the KPA as a whole and asks us to instead follow
M.L.M. In support, Christopher cites K.S.A. 2010 Supp. 38-1121(b), which directs: "If
the judgment or order of the court is at variance with the child's birth certificate, the court
shall order that a new birth certificate be issued, but only if any man named as the father
on the birth certificate is a party to the action." Christopher argues that while this may
apply only to paternity, it may also apply when the district court believes a child's name
should be changed. He alleges this statute specifically grants the power to the district
court to change a birth certificate according to its rulings, regardless of whether the
parents agree. Christopher cites M.L.M. as support for this reading of the statute.
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We disagree with Christopher's attempt to isolate a portion of K.S.A. 2010 Supp.
38-1121(b) to supply a legislative grant of authority for a district court to change a child's
name on the birth certificate. When construing a statute to ascertain legislative intent, we
are required to consider and construe together all parts thereof in pari materia without
isolating certain provisions. See In re Adoption of G.L.V., 286 Kan. 1034, 1041, 190 P.3d
245 (2008). Although K.S.A. 2010 Supp. 38-1121(b) is broadly worded to apply to a
"judgment or order of the court" that is "at variance with the child's birth certificate,"
when properly read in context, K.S.A. 2010 Supp. 38-1121(b) appears to apply only to
judgments or orders concerning a district court's determination of parentage under
K.S.A. 2010 Supp. 38-1121(a) that are at variance with the child's birth certificate
(provided any father named on the certificate is a party to the action).

Here, a change to Kamryn's birth certificate under K.S.A. 2010 Supp. 38-1121(b)
was unnecessary because Jessika had named Christopher as Kamryn's father on the birth
certificate. Thus, his acknowledgement of paternity was not at variance with the birth
certificate. Accordingly, we reject Christopher's suggestion that K.S.A. 2010 Supp. 38-
1121(b) provides a basis for us to disagree with the reasoning in Denk.

We also note Jessika's response that even if K.S.A. 2010 Supp. 38-1121(b) could
be interpreted to apply, to the extent it conflicts with K.S.A. 38-1130 the more specific
provisions of K.S.A. 38-1130 that require both parents' consent to a change in their
child's last name control because it is the more specific statute. See In re Tax Exemption
Application of Mental Health Ass'n of the Heartland, 289 Kan. 1209, 1215, 221 P.3d 580
(2009), which recognized that a more specific statute that is complete in itself controls
over general statutes or over statutes that deal only incidentally with the issue.

Other than M.L.M. and Struble, the only authority cited by Christopher is Bunce v.
Brown, No. 89,914, unpublished Court of Appeals opinion filed September 13, 2003.
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Bunce simply followed M.L.M. in rejecting the appellant's contention that the district
court lacked authority to change a child's name in a paternity action. The Bunce court
acknowledged Denk but concluded it was not controlling and cited M.L.M. and Struble in
support. Bunce, slip op. at 4. The Bunce court also rejected the mother's reliance on
Killman, concluding it did not control because it involved a district court's authority to
change a child's name in a divorce action, not an action under the KPA, which the court
found "includes no impediment on the trial court's discretion to change the child's
surname." Slip op. at 4.

Alternatively, Christopher suggests we should find the district court has
discretionary authority to change a child's surname in a paternity action as a matter of
public policy. In support, Christopher argues the purpose of the KPA it to allow mothers
and state agencies the ability to determine paternity of a child and collect support and to
give fathers the ability to determine paternity and assert parental rights. He suggests that
to the hold the district court lacks authority to change a child's name in a paternity action
would grant the child's mother an unfair advantage in choosing a name for a child not
born of a marriage.

As support for his public policy argument, Christopher cites case law from this
and other jurisdictions that recognizes parents' equal rights in naming their children. See,
e.g., In re Petition of Denning, No. 99,405, unpublished Court of Appeals opinion filed
January 9, 2009, slip op. at 9-10, (citing same jurisdictions cited by Christopher).

Regardless, Denning is inapposite. Denning recognized parents' equal rights in
naming their child. However, it did so in the context of deciding what standard should be
utilized in judging a father's request to change the last name of his child—to whose
mother the father was married at the time of conception—not in the context of deciding a
district court's authority to consider the name change in the first place. Slip op. at 9-10.
Moreover, Denning does not appear to have involved an action brought under the KPA.
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See slip op. at 5. Nonetheless, Christopher suggests that in light of Denning's recognition
of the importance of not allowing a mother an unfair advantage from the unilateral act of
naming the child, we should find the district court should have authority in a paternity
action to listen to the evidence and make an informed decision as to what surname would
be best for the child.

Christopher's public policy argument wholly ignores the fact that we cannot
modify or expand a court's statutory authority because it would violate the separation of
powers doctrine. Cf. Jones v. Continental Can Co., 260 Kan. 547, 558, 920 P.2d 939
(1996) (discussing separation of powers doctrine in concluding appellate court could not
use a court rule to expand appellate jurisdiction beyond that provided by the legislature).
Accord State v. Lewis, 27 Kan. App. 2d 134, 141, 998 P.2d 1141, rev. denied 269 Kan.
938 (2000) (noting that "under both the United States and the Kansas Constitutions,
absent express constitutional limitations, the legislative branch has the power to limit the
jurisdiction of all inferior courts").

M.L.M.'s seeming disagreement with Denk and reliance on Struble to find that a
district court has authority to consider a request to change a child's last name in a
paternity action without both parents' consent is particularly difficult to support.
Moreover, M.L.M.'s reasoning that to find a district court lacks such authority without
both parents' consent would allow a parent or court to be held hostage or without recourse
wholly disregards the fact that there are other statutory means for changing a minor's
name. For example, we have recognized a minor can petition for a name change through
a next friend under K.S.A. 60-1401 et seq. In re Application to Change Name, 10 Kan.
App. 2d 625, 627, 706 P.2d 480 (1985). Cf. In re Marriage of Killman, 264 Kan. at 38-
40, 43 (agreeing with the reasoning of Chief Judge Brazil's dissent in In re Marriage of
Killman, 23 Kan. App. 2d 975, 980-81, 939 P.2d 970 [1997], which disagreed with the
majority's finding that Kansas courts have implied authority to change child's name in
13

divorce proceeding in part because minor has ability to file petition, through a next
friend, to obtain a change of name under K.S.A. 60-1401 et seq.).

The M.L.M. court's reliance on In re Marriage of Ross to support its conclusion
that a court must be able to consider the issue is likewise questionable. See M.L.M., 28
Kan. App. 2d at 395 (quoting In re Marriage of Ross, 245 Kan. at 597). In that case, our
Supreme Court's discussion about the KPA's purpose in providing that every child has an
interest in the accurate identification of his or her parentage seems to refer only to the
importance of a child knowing who his or her parents are, not of actually sharing one or
the other parent's name. See In re Marriage of Ross, 245 Kan. at 597.

The Denk court, on the other hand, confronted this issue head-on, holding that the
legislature had not granted district courts authority to consider changing a child's name in
a paternity proceeding without the consent of both parents. 25 Kan. App. 2d at 174-75.

Although not coming out and saying so, it seems the M.L.M. court disapproved of
the Denk court's decision and tried to reverse it, which it was not allowed to do without,
at a minimum, en banc review. See In re Marriage of Cray, 254 Kan. 376, Syl. ¶ 1.
Nonetheless, the district court correctly recognized that other panels of our appellate
court consistently rely on M.L.M. and J.N.M.L. to reject challenges to a district court's
authority to consider a request to change a child's last name in a paternity action without
both parents' express consent. See Beebe v. Elmenhorst, No. 103,658, unpublished Court
of Appeals opinion filed August 27, 2010, slip op. at 5-6; Bunce, slip op. at 3-4. At least
two well-respected practice guides have also recognized the inconsistencies in these
decisions and alert practitioners to possible problems as a result. See 1 Elrod and
Buchele, Kansas Law and Practice: Kansas Family Law, Paternity § 7.35, p. 395 (2010
Supp.) (commenting that M.L.M. raises interesting issues because it allowed a name
change over the objection of the mother before citing the decisions in In re Marriage of
Killman and Denk); 3 Practitioner's Guide to Family Law, Name Change §19.16 (2008
14

Supp.) (noting M.L.M. seems to have settled apparent inconsistencies in Struble and Denk
decisions by commenting that because Denk was not overruled by M.L.M., where both
parents do not consent, a practitioner can still bring a name change cause of action on
behalf of a child, through his or her next friend, under K.S.A. 60-1401 et seq.).
Unfortunately, the parties in these cases did not petition the Supreme Court for review to
allow it to exercise its discretion and resolve the conflict.

We find the rationale in Killman, although dealing with a divorce situation, is
controlling. The statutory provisions involved in this case exclude the possibility of
changing the last name of the child over the objection of one of the parents. The district
court did not have the authority to do so and its ruling is, therefore, reversed.

Since we hold the district court had no authority to consider a name change under
the KPA and these facts, we have no need to examine the court's reasons for granting it.

Reversed.