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In re Name Change of Benitez

Florida Court of Appeals, Third District

June 13, 2018

In Re: The Name Change of Maria Fernanda Benitez, Appellant.

         Not final until disposition of timely filed motion for rehearing.

          An Appeal from the Circuit Court for Miami-Dade County Lower Tribunal No. 16-22209, David C. Miller, Judge.

          Sandy T. Fox; Cynthia L. Greene, for appellant.

          Before ROTHENBERG, C.J., and SALTER and SCALES, JJ.

          SALTER, J.

         Maria Fernanda Benitez ("Ms. Benitez"), as the mother of a three-year-old child ("W.M.B."), appeals a circuit court order denying her petition to change W.M.B.'s first name. The issue presented apparently is one of first impression in Florida: may the court dispense with the statutory requirement that process be served on (or constructive notice given to, in the case of a nonresident) a father, whose identity is known to the mother but whose name is not on the child's birth certificate, and who has not been adjudicated to be the father? We affirm in part, and reverse in part, the trial court's resolution of this issue.[1]

         The trial court concluded that it lacked the authority to grant the petition in this case because of Ms. Benitez's failure or refusal to obtain the father's consent and to serve him, or to provide constructive notice to him if the father is a nonresident. Though Ms. Benitez and her counsel make a persuasive argument, we are constrained to agree that the trial court's application of the law was correct in all but one minor respect. We affirm the denial of the amended petition for name change, but with a copy of this opinion to the Chief of Legislative Affairs, Office of the State Courts Administrator, for consideration during the annual statutory clarification cycle.

         The Petition, Amended Petition, and Procedural History

         The verified petition and amended verified petition to change W.M.B.'s name referred to the controlling statute (section 68.07, Florida Statutes (2016)) and, for the most part, tracked the allegations specified in the statute. Information responsive to two subsections of the statute, however, was not provided by Ms. Benitez:

(3) Each petition shall be verified and show:
* * *
(b) If known, the date and place of birth of the petitioner, the petitioner's father's name, the petitioner's mother's maiden name, and where the petitioner has resided since birth.
* * *
(8) When only one parent petitions for a change of name of a minor child, process shall be served on the other parent and proof of such service shall be filed in the cause; however, if the other parent is a nonresident, constructive notice of the petition may be given pursuant to chapter 49, and proof of ...

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