[196 NJSuper Page 110] Marie Yacono and Thomas Rossell were married on February 14, 1980. A son, Joseph Michael Thomas Rossell, was born on August 29, 1981. The marriage went badly. Thomas Rossell, an angry and violent man, frequently intimidated and abused his wife. On one occasion, he threatened to throw his son out the window. The family's principal financial support was furnished by his wife; he worked infrequently. The marriage ended in a separation on June 30, 1982 and a divorce on December 14, 1982. Joseph has been in his mother's custody ever since.
During the marriage, Thomas was rarely at home, and therefore spent little time with his son. Since the separation, he has seen his son only twice: once, for half an hour, on the occasion of Joseph's first birthday, August 29, 1982, and again, for only five minutes, during Christmas in 1982. Since then, he has not called, has not visited, has sent no cards, has provided no support, and has had no contact of any kind with his son.
Marie, as an incident of the divorce, resumed her maiden name. She now seeks a judgment changing her son's name from Rossell to Yacono. Since her son is always with her, she believes he should share her name. She believes that Thomas, because of his behavior, has no right to object. Inferentially, she suggests that it will be less awkward for her son, if he shares her name as he grows older.
Thomas objects to the change. He denies any episodes of violence, but his testimony is not convincing. He claims that Marie provokes his anger; as a consequence he has not visited his son. He says: "I have never been in jail and do not intend to be". He objects to the name change on the ground that Joseph is his son, that he loves him and that the change of name will cause the loss of certain benefits normally payable to a fireman's son. This opinion, rendered after both parties have testified, concludes that Marie Yacono's application should be granted. It is written because our courts have rarely addressed the issue although many name change applications are filed in our courts*fn1 and because it disagrees with the leading case on the subject.
The earliest New Jersey decision dealing with a contested name change application involved divorce proceedings: Bruguier v. Bruguier, 12 N.J. Super. 350 (Ch.Div.1951). In that case, a father sought to restrain his infant daughter from assuming the surname of his former wife's new husband. The action was
dismissed on the ground that the daughter, who was of high school age, had changed her name voluntarily and that nothing in the common law prohibited her from doing so.
The legal name of a child born in lawful wedlock is the child's Christian name and the surname of his natural father, and where the mother has been awarded custody, there is no authority for her to change the surname of the child to that of the mother's subsequent husband, unless there are extenuating circumstances. [at 287]
Consequently, the court ruled that where the natural father was not in default in contributing to the support of his children and was not charged with improper conduct, the divorced wife with legal custody of the children had no authority to change their surnames to that of her second husband. In reaching its decision, the court stated:
The court in dealing with the custody of a child has broad discretion, being always aware that the welfare and happiness of the child is the controlling consideration. There may be occasions when it would be desirable to make an informal change in the name of the child to the surname of the mother's second husband, as when the child's father indulges in improper conduct, fails to support, abandons the child, is indifferent to its welfare and fails to make a timely objection to the change of name. However, when the father contributes to t he support of the child, expresses an abiding interest in the child and acts promptly in the objection to the change of name, the court must consider all the factors that would be for the welfare of the child. [ Sobel, supra, 46 N.J. Super. at 287.]
In W. v. H., 103 N.J. Super. 24 (Ch.Div.1968), the court permitted a change. The father had pled guilty to having sexual intercourse with his eleven year old daughter, for which offense he had been sentenced to prison. Previously, he had impregnated his older daughter resulting in the birth of a child. The court found that the actions of the father caused ...