Breslin, R.w., J.s.c., Temporarily Assigned.
Plaintiff is a law student who is married to one Adam Lawrence. Plaintiff and her husband are still legally married. The complaint recites that plaintiff has never been convicted of a crime, no suits are now pending against her, and no judgments have been recovered against her in insolvency or bankruptcy proceedings. The reasons plaintiff gives for wishing to change her name are the desire to retain an identity separate and distinct from that of her husband and the professional and social implications attendant upon such a change. Plaintiff has submitted proof of publication of her intent to change her name and has in all other respects complied with the procedures set forth in R. 4:72-1 et seq.
N.J.S.A. 2A:52-1 provides that:
Any person may institute an action in the county court of the county of which he is a resident or in the superior court, for authority to assume another name.
There are very few reported cases dealing with name changes in this State, but a few general principles are recognized. The most recent case on the subject is In re M, 91 N.J. Super. 296 (Law Div. 1966). Plaintiff in that case was an 11-month-old child born out of wedlock. He had been given
the surname of his mother and wished to adopt the surname of his putative father as his legal name. Both the child's mother and putative father expressed a desire to make this change, but the father's spouse opposed. The court stated the law as follows:
While there is a paucity of precedent on this question, it is apparent that the court has wide discretion in granting or refusing an application for a change of name. Circumstances of special significance that would militate against the granting of such an application would be an unworthy motive, the possibility of fraud on the public, or the choice of a name that is bizarre, unduly, lengthy, ridiculous, or offensive to common decency and good taste. [at 298]
The issue presented to the court is whether a woman who is still legally married may be granted a change of name in a judicial proceeding in order to resume the use of her maiden name as her sole legal name. A thorough review of the case and statutory law of this State discloses no authority on this point, and as a result the court must look to other jurisdictions for guidance in this matter.
A reading of the case law of various jurisdictions reveals a variety of answers to the question before us. For example, in In re Hauptly, 294 N.E. 2d 833 (1973) the Court of Appeals of Indiana determined that the denial of such a petition as is presently before this court was a proper exercise of discretion by the trial court. The court in that case, after noting that plaintiff's petition was to resume the use of her maiden name as her legal name although she was still legally married, found that plaintiff had abandoned her maiden name at the time of her marriage and had assumed the surname of her husband. The court then stated:
We are not here dealing with the right of a married woman to do business or be sued in a surname other than her husband's. Without question a person, including a married female, may assume a different name by which he is known and transacts business. [at 834, 835]
The general rule applicable to a change of name is that a person may, in the absence of a fraudulent or improper
motive, adopt any name by which he chooses to be known. In re M, supra; Sobel v. Sobel, 46 N.J. Super. 284 (Ch. Div. 1957); State v. Librizzi, 14 N.J. Misc. 904, 188 A. 511 (Sup. Ct. 1936); Bruguier v. Bruguier, 12 N.J. Super. 350 (Ch. Div. 1951). This common law procedure may be utilized without resort to any formal legal proceeding. Such statutory proceedings are generally regarded as providing an additional method for changing one's name rather than abrogating the common law rule in this regard. See 65 C.J.S. Names § 11(2) at 32; 57 Am. Jur. 2d, Name § 11 at 282.
With respect to the scope of discretion vested in the court hearing the application for a statutory change of name, 65 C.J.S. Names § 11(2), reads as follows:
The determination of an application for a change of name, however, depends, in each case on its own particular facts, and a showing of actual fraud or of the actual invasion of the rights of another is not required in order for a court to be justified in denying a change of name. It has been held that names should not be changed for trivial, capricious, or vainglorious reasons, that a change of name will be refused if the court entertains a serious doubt as to the propriety of granting it. [at 28]
See also 57 Am. Jur., 2d, Name, §§ 11, 12; In re Ross, 8 Cal. 2d 608, 67 P. 2d 94, 110 A.L.R. 217 (Sup. Ct. 1937); In re Taminosian, 97 Neb. 514, 150 N.W. 824 (Sup. Ct. 1915).
The effect of a judicial proceeding for change of name upon a person's common law right to adopt any name he may choose is noted in 57 Am. Jur. 2d, Name, § 16 as follows:
Statutes relating to changing one's name sometimes provide that on and after the day specified in the order of the court for the change to take effect, the applicant must be known by the new name and no other. It has been said that such a statutory provision may well have the effect of barring a person who has acquired a name by judicial decree from acquiring another name without resorting to the courts. [at 285; emphasis supplied]
See also, Smith v. United States Cas. Co., 197 N.Y. 420, 90 N.E. 947 (Ct. App. 1910); Brayton v. Beall, 73 S.C. 308, 53 S.E. 641 (Sup. Ct. 1906); Application of Shipley, 26 Misc. 2d 204, 205 N.Y.S. 2d 581 (Sup. Ct. 1960); In re Burstein, 69 Misc. 41, 124 N.Y.S. 989 (Sup. Ct. 1910); 65 C.J.S. Name § 11(2) at 32. A similar statement is contained in N.J.S.A. 2A:52-2, which reads as follows:
Effect of judgment for change of name in general.
Such person, from and after the day specified therefor in the judgment in the action, shall be known by the name which, by the judgment, he is authorized to assume, and by no other.
It is thus apparent that if this court were to grant plaintiff's petition she would henceforth be known as Bonnie Lee Daniels. She would be forever barred from using any other name, including her husband's surname, for any purpose whatsoever without first instituting a judicial proceeding for a second change of name.
Plaintiff contends that in fact her surname has not been changed by marriage and that her maiden name is still her legal name. If this were indeed true there would be no need for plaintiff to have instituted the present proceeding, since she would be asking the court for a judgment changing her legal name from her purported name to that which is already her legal name.
There is some confusion as to what is the common law rule as to the change of a woman's surname upon marriage. After careful examination of the cases and treatises cited by plaintiff and a thorough review of the law on the subject the court has determined that plaintiff's proposition is not supported in law and is in fact based upon an erroneous interpretation of the common law.
The following quotation, taken from 57 Am. Jur. 2d, Name, § 9, sets forth the general common law rule and one instance where a ...