On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FM-08-541-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 24, 2012
Before Judges Graves and Espinosa.
Defendant appeals from a post-judgment order that denied her motion to resume the use of her maiden name and awarded a counsel fee to plaintiff. We affirm in part and reverse in part.
The parties have one child, a daughter born in 1993, and were divorced in 2009. Defendant filed a motion in August 2011, after the daughter turned eighteen, asking for certain relief relating to custody, support, and expenses for the child; for permission to resume the use of her maiden name; and for counsel fees and costs. After the motion was filed, the parties' daughter entered a drug rehabilitation program. Plaintiff filed a cross-motion, asking the court to deny all relief relating to the child, asking that the child be declared emancipated and for counsel fees and costs.
The court's rulings on custody, support, and expenses need not be discussed because the only issues defendant appeals are the court's denial of her request to resume using her maiden name and an award of $1,000 in counsel fees to plaintiff. The court denied defendant's motion to resume use of her maiden name because it came two years after the Judgment of Divorce.
At common law, an adult or emancipated person is allowed to change his or her name without judicial approval and without a public record of the change. "Absent a criminal or fraudulent purpose, an adult can 'legally and properly change his or her name at will and without need of judicial approval simply by using the desired name in ordinary life.'" In re Zhan, 424 N.J. Super. 231, 235 (App. Div. 2012) (quoting Matter of Bacharach, 344 N.J. Super. 126, 130 (App. Div. 2001)); see also Egner v. Egner, 133 N.J. Super. 403, 406 (App. Div. 1975).
Thus, defendant here had a common law right to resume her maiden name. There is, however, an advantage to having a court order that authorizes the name change. Both N.J.S.A. 2A:52-1 and N.J.S.A. 2A:34-21 are remedial statutes that establish procedures for the judicial recordation of name changes. Egner, supra, 133 N.J. Super. at 405. While N.J.S.A. 2A:52-1 authorizes the institution of an action for a change of name, N.J.S.A. 2A:34-21 provides an alternative to a separate proceeding when the requested name change is related to a divorce action:
The court, upon or after granting a divorce from the bonds of matrimony to either spouse or dissolution of a civil union to either partner in a civil union couple, may allow either spouse or partner in a civil union couple to resume any name used by the spouse or partner in a civil union couple before the marriage or civil union, or to assume any surname. [N.J.S.A. 2A:34-21 (emphasis added).]
The statute does not establish any time limit for the motion to be filed.
In Cimiluca v. Cimiluca, 245 N.J. Super. 149 (App. Div. 1990), we held that a spouse who had failed to file a pleading seeking a name change under the statute should not be barred from filing a motion "with consent at the divorce hearing to amend or add pleadings to achieve that end." Id. at 152. We stated further that the motion should be ordinarily granted unless some contrary reason appeared. Ibid. In Olevich v. Olevich, 258 N.J. Super. 344 (Ch. Div. 1992), the trial court interpreted the statute to mean that "a woman may apply to resume her maiden name at any time after the court grants a judgment of divorce" and granted a request made fourteen years after the divorce became final. Id. at 348.
The request for a name change under N.J.S.A. 2A:34-21 came here just two years after the divorce was made final and was not barred by any time limitation imposed by the Legislature. We therefore conclude that the trial court erred in denying this relief.
Defendant also argues that the trial court abused its discretion in awarding a $1,000 counsel fee. The decision to award a counsel fee lies within the discretion of the trial judge. Packard-Bamberger & Co., Inc. v. Collier, 167 N.J. 427, 444 (2001). Although most of the relief sought in defendant's motion was rendered moot while it was pending, she did not withdraw her ...