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Yomaira Henao v. Joseph A. Tibbrine

August 4, 2011

YOMAIRA HENAO, PLAINTIFF-APPELLANT,
v.
JOSEPH A. TIBBRINE, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FM-01-1011-08P.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 8, 2011

Before Judges Payne and Koblitz.

Yomaira Henao, the biological, non-custodial mother of two young children, appeals the change, by default, of their surnames to that of their father, Joseph A. Tibbrine. As disclosed at the motion for reconsideration, the mother was under the impression that she could orally oppose the father's name-change application at the hearing scheduled in the matter.

She therefore filed no papers. Assuming that the application was uncontested, the judge granted it two days before the day scheduled for argument and then directed her clerk to inform the mother that the argument had been cancelled.

At oral argument on the mother's motion for reconsideration, the judge refused to hear the mother's position, concluding that she had been to court enough to know that written opposition needed to have been filed. Reconsideration was therefore denied. The mother has appealed.

Changes of name are governed by N.J.S.A. 2A:52-1 to -4 and by Rules 4:72-1 to -4. The statutes require that the applicant institute an action in the Superior Court by way of complaint, accompanied by a sworn affidavit setting forth specified information. N.J.S.A. 2A:52-1. The statutes also provide for entry of judgment, N.J.S.A. 2A:52-2, and specify, in N.J.S.A. 2A:52-3, that a change in name shall not act to abate any ongoing legal proceedings. N.J.S.A. 2A:52-4 provides for the correction of birth and marriage records upon a change of name.

Rule 4:72-1 similarly provides that an action for a change of name shall be commenced by filing a verified complaint setting forth specified information. Rule 4:72-2 eliminates the requirement of an appointment of a guardian ad litem. Rule 4:72-3 requires the court to fix a date for hearing not less than thirty days after the date of the order and requires that notice of the application be published in a newspaper of general circulation. Rule 4:72-4 provides:

On the date fixed for hearing the court, if satisfied from the filed papers, with or without oral testimony, that there is no reasonable objection to the assumption of another name by plaintiff, shall by its judgment authorize plaintiff to assume such other name from and after the time fixed therein . . . .

Although this rule can be read to require written opposition, no where does it say so explicitly.

In this fashion, the rules governing name changes differ from the rules regarding motions in the Family Part. There, Rule 5:5-4(c) requires that a response to a motion be filed fifteen days before the return date. Additionally Rule 5:5-4(d) provides, in part:

(d) Advance Notice. Every motion shall include the following language: "NOTICE TO LITIGANTS: IF YOU WANT TO RESPOND TO THIS MOTION YOU MUST DO SO IN WRITING."

At the hearing on the motion for reconsideration, the Family Part judge assumed that the mother would recognize the need to file a written response because she was familiar with motion practice in that court.*fn1 The mother stated in her defense that she had never before confronted ...


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