Maryland Family Law Maryland family law opinions and commentary
The Courts of Appeal building in Annapolis. (The Daily Record File)
A Maryland appeals court has ordered that a son’s surname revert to his mother’s, saying a lower court had improperly given the father a second chance to have the boy’s name changed to his.
Unmarried parents generally have just one opportunity for a court order that a child’s last name be changed to theirs, the Court of Special Appeals said in its reported 3-0 decision on Oct. 29. Courts can make an exception when a change in the child’s circumstances necessitates a name change, such as if the parent whose name the child carries abandons the youngster or becomes infamous, the intermediate appellate court added.
But the mother in this case, Vanessa Kreyhsig, neither has drawn any such infamy nor abandoned her son. Thus, the Montgomery County Circuit Court should not have permitted the father, Luis Alfonso Montes, to file a second petition seeking to replace Kreyhsig with Montes as his son’s surname, the intermediate appellate court added.
The circuit court had granted that second petition, prompting the mother to seek review by the Court of Special Appeals.
No change in circumstance
Writing for the court, Judge Douglas R.M. Nazarian cited the legal doctrine of res judicata, which bars claims from being raised again once they have been decided on the merits.
“[I]magine that a trial court denies a mother’s name change petition when a child is 1 year old, and thus orders the child to retain his father’s surname, but seven years later, the child’s father is convicted of murder,” Nazarian wrote. “Under the typical res judicata analysis, a new complaint filed by the same party seeking the same relief would be barred. But under the gloss [of this hypothetical] a name change petition by the mother grounded in the child’s changed circumstances would not be barred — the particular ‘claim,’ i.e., a name change analyzed against the child’s materially different circumstances would not have been heard or denied.”
But the father, in his second petition, did not “allege that any of the circumstances bearing on son’s best interests changed in the time since” the first petition, Nazarian added. “If circumstances bearing on son’s best interests change materially in the future, father might have another opportunity to seek a name change. Unless and until that occurs, however, father is not entitled to another bite at this particular apple.”
Ellen L. Lee, Kreyhsig’s appellate attorney, said she believes the Court of Special Appeals issued the decision as a reported opinion — which can be cited as precedent — “to make it clear that [with] a name change, like a custody case, you need to show a substantial change in circumstance” for the child in order to file despite an earlier denial.
The mere passage of time does not enable a parent to file a subsequent petition, Lee added.
“The child getting older is not a substantial change in circumstance,” she said.
Montes’ attorney, Reza Golesorkhi, did not return telephone and email messages seeking comment Monday on whether he plans to seek review by Maryland’s top court, the Court of Appeals.
Golesorkhi is with Joseph, Greenwald & Laake P.A. in Rockville.
‘Progression of events’
Montes first sought to have his son’s surname changed in September 2010, when the boy was about 20 months old. The trial court granted the motion in February 2011 but that order was vacated and remanded by a panel of circuit court judges.
With that first petition in legal limbo, the father petitioned again for a name change on Aug. 22, 2012, which the circuit court denied on Dec. 11, 2012.
Undeterred, Montes filed another petition on April 25, 2014. Kreyhsig moved for dismissal saying the issue had been decided.
But the circuit court rejected the mother’s motion for dismissal, saying the earlier denial was not a final decision on the merits. The circuit court then ordered the name change, saying it would be in the child’s best interests to have the father’s surname.
But the Court of Special Appeals agreed with the mother that the denial was a final judgment on the merits.
“[W]e acknowledge the confusion within the circuit court about the status of the various cases, which led to an unusual progression of events,” Nazarian wrote. “With the benefit of appellate hindsight, we can see how it all happened. But the procedural unorthodoxies came about because of the father’s serial filings, however explainable they might be, and they don’t nullify the res judicata effect of either of the prior decisions.”
Judges Christopher B. Kehoe and Kevin F. Arthur joined Nazarian’s opinion in Vanessa Kreyhsig v. Luis Montes, No. 1694, September Term 2014.
