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Yomaira Henao v. Joseph A. Tibbrine

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 a name-change proceeding, but that defense was not accepted by the judge.

We conclude on the basis of the record before us that the judge misused her discretion in not considering the mother's motion for reconsideration. We have been offered nothing that would suggest that the mother was specifically informed of the need to oppose the application in writing, despite what appears to have been several contacts between the mother and the judge's law clerk over scheduling. Indeed, because the mother, a member of the military, specifically requested an adjournment of the hearing date to permit her to appear, it would have been reasonable to assume that she opposed the father's application.

Moreover, we are concerned that an action as significant as a name change would, in the circumstances presented, be concluded by a default judgment. We recognize that, because the father was the custodial parent of the two children, a strong presumption arose that it was in their best interest for the name change to occur. Ronan v. Adely, 182 N.J. 103, 108 (2004); Gubernat v. Deremer, 140 N.J. 120, 144 (1995). Nonetheless, the Court has recognized that the presumption is not irrebuttable. Ibid. As the Gubernat Court stated:

[W]e readily envision circumstances in which the presumption could be rebutted. A young child who has used the non-custodial surname for a period of time, is known to all by that surname, expresses comfort with the continuation of that surname, and maintains frequent contact with the non-custodial parent might be ill-served by the presumption that the assumption of the custodial surname would be in his or her best interests. [Id. at 144-45.]

We thus remand this matter to provide the mother with the opportunity to contest the change of name and to demonstrate that it is in her children's best interest to retain her name or assume some combination of her name and that of the father. See N.J.S.A. 8:2-1.3(a)(2) (providing that where both parents have custody of the child, are both available, and disagree on the selection of a surname, "the child shall be given a hyphenated surname based on alphabetical order"). As a condition of reconsideration, however, we require that the mother submit her opposition to the father's application fifteen days prior to the date scheduled for a hearing. If she fails to do so, no hearing shall take place and the presumption in favor of the father's name shall take effect.

Reversed and remanded.


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