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Viola v. Fundrella

January 11, 1990

MARIA VIOLA (FORMERLY MARIA FUNDRELLA), PLAINTIFF,
v.
MELVIN FUNDRELLA, DEFENDANT



Winkelstein, J.s.c.

Winkelstein

The plaintiff, Maria Viola, formerly Maria Fundrella, and the defendant, Melvin Fundrella, were married on April 29, 1984. This was the second marriage for the defendant, and the first marriage for the plaintiff. On January 28, 1986 a child, Nicole, was born. The parties separated in August 1987 and a final judgment of divorce was entered on October 3, 1989. As a provision of the final judgment of divorce, plaintiff was entitled to resume the use of her maiden name, Maria Catherine Viola.

By motion dated November 28, 1989, the plaintiff sought an order, inter alia, changing the surname of the minor child from Fundrella to Viola.

The issue to be decided is a narrow one: May a minor's surname be changed by motion in a matrimonial action? I conclude that there is no statutory authority to change the surname of a minor child by motion. The proper procedure to follow is to initiate a complaint pursuant to N.J.S.A. 2A:52-1 and R. 4:72-1.

At the time of final judgment of divorce, the plaintiff was allowed to resume her maiden name. Such action is authorized by N.J.S.A. 2A:34-21 which provides as follows: "The Court, upon or after granting a divorce from the bonds of matrimony

to either spouse, may allow either spouse to resume any name used by the spouse before the marriage, or to assume any surname." The statute, recently amended, (L. 1988, c. 153, ยง 2) is silent concerning the name change of a minor.

The authority to change a surname other than that of a party to a divorce proceeding is set forth in N.J.S.A. 2A:52-1 and R. 4:72. Pursuant to N.J.S.A. 2A:52-1, the action must be instituted by a complaint which must contain certain information. The complaint must disclose whether the applicant has been convicted of a crime, if there are criminal charges pending, and if there are, it must provide details of same. A copy of the complaint, whether or not citing a prior conviction or pending charges, is to be served upon both the Attorney General and the county prosecutor.

R. 4:72 contains additional requirements.*fn1 The application must state that it is not made with the intent to avoid creditors, or criminal prosecution, nor for any other fraudulent purpose. It requires the plaintiff to state whether he or she has been convicted of a crime during the last 10 years and if there are pending charges, to provide the circumstances of same with sufficient particularity to allow the prosecutor to identify the matter. If there are convictions, it must detail the circumstances. R. 4:72-2, which expressly contemplates actions on behalf of minors, provides that such an action may be commenced by the parent without appointment of a guardian ad litem. R. 4:72-3 provides that the court, by order, shall fix a date for a hearing, that notice of the application be published once, at least two weeks preceding the date of the hearing in a newspaper of general circulation in the county of plaintiff's residence, and provides that in the case of an infant, notice be served upon nonparty parents. R. 4:72-4 requires that on the date fixed for

a hearing, the court may, if satisfied that there is no reasonable objection to the assumption of another name, authorize the entry of judgment. There must then be publication of same and a certified copy is to be filed with the Secretary of State. A motion would entail none of these requirements.

Plaintiff argues that since the application is to change the name of an infant, it is not necessary to comply with service upon the Attorney General or the prosecutor, since juveniles cannot be guilty of crimes. N.J.S.A. 2A:4A-23

However, even though N.J.S.A. 2A:52-1 and R. 4:72 refer to criminal charges, and delinquent acts are not criminal charges, the policy reasons for providing law enforcement authorities notice of a name change would still apply. It may be just as important to the law enforcement authorities to know that a juvenile is changing his or her name if there are pending charges or a prior history of delinquency, as it may be to have the same information with regard to adults who have been convicted of crimes ...


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