2. Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review. Syllabus Point 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995).
3. Children bear the surnames of their fathers by custom and usage in this society, and where a father who has exercised his parental rights and discharged his parental responsibilities is dead, or a living father exercises his parental rights and discharges his parental responsibilities, the name of a minor child cannot be changed from that of the father unless upon proper notice and by clear, cogent, and convincing evidence it is shown that such change will significantly advance the best interests of the child. Syllabus Point 3, In re Harris, 160 W.Va. 422, 236 S.E.2d 426 (1977).
This case is before this Court upon appeal of a final order of the Circuit Court of Kanawha County entered on August 26, 2005. In that order, the circuit court held that reasonable and probable cause existed for changing the name of Blake Andrew Carter, a minor, to Blake Andrew Karawan. In this appeal, Blake Carter's biological father, appellant Kenneth Carter, maintains that the circuit court erred when it granted the name change. Blake, through his mother, Christina Karawan, contends that the circuit court correctly allowed him to change his name. After reviewing the facts of the case, the issues presented, and the relevant statutory and case law, this Court reverses the decision of the circuit court.
In reviewing challenges to the findings and conclusions
of the circuit court, we apply a two-prong deferential standard
of review. We review the final order and the ultimate
disposition under an abuse of discretion standard, and we review
the circuit court's underlying factual findings under a clearly
erroneous standard. Questions of law are subject to a de novo review.
Syllabus Point 2, Walker v. West Virginia Ethics Comm'n, 201 W.Va. 108, 492 S.E.2d 167 (1997). Accord Syllabus Point 1, State ex rel. Hechler v. Christian Action Network, 201 W.Va. 71, 491 S.E.2d 618 (1997).
Moreover, where, as here, the question before the circuit court involves the interpretation of the applicable law and governing statutes, our review is plenary. Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review. Syllabus Point 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995). See also Syllabus Point 1, Appalachian Power Co. v. State Tax Dep't of West Virginia, 195 W.Va. 573, 466 S.E.2d 424 (1995) (Interpreting a statute or an administrative rule or regulation presents a purely legal question subject to de novo review.).
With these standards in mind, we now determine whether the circuit court erred by granting the petition to change Blake's name.
As you get older, life gets a little more precious to you.
And you know, I'm 42, and I don't have any other children.
He's my only son. And I just, he's a part of me even if I haven't
been around. . . .
I hoped that if his name was Carter he would get curious when he started to hit his teenage years and want to, at least, talk to me or see me or something like that. That's been my hope.
Mr. Carter also said that he contacted Mr. Karawan after Blake started the first grade and the two of them discussed whether Mr. Carter could come to visit with Blake. Mr. Carter said that,
Mr. Karawan made a very good point that [such a visit] would be disruptive. Maybe, it should be more, maybe if Blake wants to come to me sometime. So we agreed at that time that maybe that was the best strategy. . . .
I was a product of divorce, Your Honor, and my father
used to say bad stuff about my mom. And I just wasn't going to
do that to Blake. I was not going to make waves in his life. I
don't want to be disruptive. But he [is] my only son. I don't
have any other children.
Mr. Carter further testified as follows:
I certainly brought up the issue of visitation on the name change when [Blake] started 1st grade. We agreed in the welfare of the child that, maybe, I shouldn't interfere at that young age. That would be confusing. I used to work on adolescent psych. And I understand all about stability.
I had scheduled visitations, and she quit being available on those days. She had other plans. I lived in Huntington, she at Charleston. I'd call her, and she said, oh, we have plans. You don't mind do you? . . . .
I discussed with them that I was trying not to make waves, but I was still waiting for that opportunity. I hoped that if his name was Carter he would get curious when he started to his teenage years and want to, at least, talk to me or see me or something like that. That's been my hope.
I've tried not to make waves. I paid my support. I've
just stayed in the background. I've always been a letter away.
I've always responded whenever a call or letter came in there,
I mean. So, anytime I've been contacted, I've returned, but I
just wasn't going to fight any more.
West Virginia Code § 48-25-101 (2003) affords individuals of this state the ability to petition a circuit court or family court for a change of name. It provides that:
(a) Any person desiring a change of his or her own
name, or that of his or her child or ward, may apply therefor to
the circuit court or family court of the county in which he or she
resides, by petition setting forth:
(1) That he or she has been a bona fide resident of the county for at least one year prior to the filing of the petition;
(2) The cause for which the change of name is sought; and
(3) The new name desired.
(b) Previous to the filing of the petition the person shall cause a notice of the time and place that the application will be made to be published as a Class I legal advertisement in
compliance with the provisions of article three, chapter fifty-nine of this code. The publication area for the publication is the county.
In Syllabus Point 3 of In re Harris, 160 W.Va. 422, 236 S.E.2d 426 (1977), however, we explained that: Children bear the surnames of their fathers by custom and usage in this society, and where a father who has exercised his parental rights and discharged his parental responsibilities is dead, or a living father exercises his parental rights and discharges his parental responsibilities, the name of a minor child cannot be changed from that of the father unless upon proper notice and by clear, cogent, and convincing evidence it is shown that such change will significantly advance the best interests of the child.
In Harris, we further stated that absent extreme circumstances, in no event shall proof of abandonment for name change purpose be less than that required to divest a parent's rights under the adoption statute. 160 W.Va. at 429, 236 S.E.2d at 430. Pursuant to W.Va. Code § 48-22-102, abandonment is defined as any conduct by the birth mother, legal father, determined father, outsider father, unknown father or putative father that demonstrates a settled purpose to forego all duties and relinquish all parental claims to the child. In addition, W.Va. Code § 48-22-306 (2001) (See footnote 1) provides that there is no presumption of abandonment unless, among other things, a father fails to financially support his child.
After reviewing the facts of this case, we believe that Mr. Carter has not abandoned all duties of a father and the evidence does not support the circuit court's conclusion that Mr. Carter demonstrated a settled purpose to forego all duties and relinquish all parental claims. Because Mr. Carter has regularly paid child support and has expressed his sincere desire to forge a relationship with his biological son, we believe that the request for a name change in this case should not be granted as it is not in the best interests of the child. We further recognize that Blake will become an adult within two years of the issuance of this opinion at which time he will be in a better position to make a decision about which surname would be in his best interests. See W.Va. Code § 48-25-101 (2003).
Consequently, we find that the circuit court abused its discretion in ordering a name change in this case and therefore reverse the August 26, 2005, final order of the circuit court.
Accordingly, for the reasons set forth above, the final order of the Circuit Court of Kanawha County entered on August 26, 2005, is reversed.