Filed 4/8/20 Montejano v. Clayton CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

GABRIEL SIERRA MONTEJANO,

Respondent,

v.

COURTNEY CLAYTON,

Appellant.

F078110

(Super. Ct. No. PFL272902)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Tulare County. Glade F. Roper, Judge. (Retired Judge of the Tulare Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)

Krase, Bailey, Reed-Krase and Alexander Reed-Krase for Appellant.

No appearance for Respondent.

-ooOoo-

BACKGROUND

Gabriel Sierra Montejano (Father) and Courtney Clayton (Mother) are the biological parents of a daughter born in 2017. The original birth certificate listed “Clayton” as the child’s last name. Mother has sole custody of the child while Father has limited visitation rights. In addition, the superior court granted Mother’s request to move to Kansas, where Mother and the child would live with maternal family.

In early 2018, Father petitioned to include “Sierra” in the child’s full name. Mother objected, claiming “[it] is in the child’s best interest to have the same surname as . . . [M]other to avoid embarrassment and discomfort of having a different name than the rest of the family unit.”

At a June 29, 2018 hearing, Father testified the child should bear his surname because he was “her biological father” and “want[ed] to have part of her life too.” He pointed out he otherwise “ha[d] no say so or nothing with” the child. Although Father signed the birth certificate, he maintained he was “tricked” into doing so by Mother, who—following an argument—had promised to use “Sierra” as the child’s surname. Father’s wife testified she was with Father when he and Mother argued for hours over speakerphone and via text messages the night before the birth certificate was signed. At some point, Mother relented and agreed to use “Sierra” as the child’s surname.

Mother testified she chose the child’s first, middle, and last names. The child’s middle name was the same as Mother’s “grandma’s [Greek] first name,” which would “keep[] [the child] connected with [the] family.” Mother believed “Clayton” should remain the child’s surname because “it’s the last name of the family who has been providing for her since day one” and the child would “feel[] welcomed and not alienated from the family she lives with.” She later clarified a change in the child’s surname would be unwelcomed by “society” rather than the maternal family.

In a statement of decision filed July 2, 2010, the court sided with Father and ordered “Sierra” to replace “Clayton” as the child’s last name. It reasoned:

“. . . [F]ather made his request to have the child use his surname when the child was not yet five months old. He and his wife testified that he argued with [Mother] before the birth about the child bear[ing] his name. [Father] testified that he wanted to have the child bear his name after the birth certificate was filed. He expressed a desire to develop a bond with the child and have a close relationship with her. He testified that he was not aware that he was agreeing to have the child not bear his surname when he signed the birth certificate.

“. . . Having the child use . . . [F]ather’s surname will preserve the father-child relationship since [Mother] will have sole custody of the child and [Father] will have limited visitation rights. [Mother] will be moving the child to Kansas and [Father] will see her only a few times each year. [Mother] testified that choosing the child’s names was very important to her and that the middle name gives the child connection to [Mother]’s ancestor. It is equally important to the child to have a connection with her father.

“. . . There is no detriment to the child by having her bear . . . [F]ather’s surname. [Mother]’s only reason for not wanting her to have . . . [F]ather’s surname is that she will be cared for by [Mother]’s family and that it will cause ‘embarrassment and discomfort’ to have a different surname. This argument is not persuasive. Historically, grandchildren almost always had a different surname than their maternal grandparents. In today’s society it is not at all unusual for a child to have a different surname than her mother. [Mother] gave no evidence why bearing . . . [F]ather’s surname would cause the child embarrassment or discomfort.

“. . . Balancing . . . [M]other’s desire to have the child bear only her surname against the detriment to the child to lose that connection with [an] absent [F]ather, it is in the child’s best interest to add . . . [F]ather’s surname.”

The judgment was filed on August 9, 2018.

DISCUSSION

On appeal, Mother asks us to “[f]ind insufficient evidence was presented at trial to support changing the minor child’s name . . . and remand the matter for a new hearing” or “[f]ind that sufficient evidence was presented by Mother to rebut any request made by Father to change the minor child’s name.”

“ ‘When a judgment is attacked as being unsupported by the evidence, “the power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the [trier of fact].” [Citation.]’ [Citation.]” (In re Marriage of McManamy & Templeton (1993) 14 Cal.App.4th 607, 610; see In re Dakota H. (2005) 132 Cal.App.4th 212, 228 [“Substantial evidence must be of ponderable legal significance. It is not synonymous with ‘any’ evidence. [Citation.] The evidence must be reasonable in nature, credible, and of solid value.”].) “ ‘ “We must therefore view the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor in accordance with the standard of review so long adhered to by this court.” [Citation.]’ [Citations.]” (Lenk v. Total-Western, Inc. (2001) 89 Cal.App.4th 959, 968.) “We do not reweigh the evidence, evaluate the credibility of witnesses, or resolve evidentiary conflicts. [Citation.] The judgment will be upheld if it is supported by substantial evidence, even though substantial evidence to the contrary also exists and the trial court might have reached a different result had it believed other evidence. [Citation]” (In re Dakota H., supra, at p. 228; see Lenk v. Total-Western, Inc., supra, at p. 968 [“ ‘[N]either conflicts in the evidence nor “ ‘testimony which is subject to justifiable suspicion . . . justif[ies] the reversal of a judgment, for it is the exclusive province of the [trier of fact] to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.’ ” ’ ”].) “The substantial evidence standard of review is generally considered the most difficult standard of review to meet, as it should be, because it is not the function of the reviewing court to determine the facts.” (In re Michael G. (2012) 203 Cal.App.4th 580, 589.)

“[T]he sole consideration when parents contest a surname should be the child’s best interest.” (In re Marriage of Schiffman (1980) 28 Cal.3d 640, 647.) “Under the test . . . the length of time that the child has used a surname is to be considered. [Citation.] If . . . the time is negligible because the child is very young, other facts may be controlling. For instance, the effect of a name change on preservation of the father-child relationship, the strength of the mother-child relationship, and the identification of the child as part of a family unit are all pertinent. The symbolic role that a surname other than the natural father’s may play in easing relations with a new family should be balanced against the importance of maintaining the biological father-child relationship. ‘[T]he embarrassment or discomfort that a child may experience when he [or she] bears a surname different from the rest of his [or her] family’ should be evaluated. [Citation.]” (Ibid.)

The record demonstrates the court considered and weighed several factors, including the short duration the child possessed the “Clayton” surname; Mother’s status as the custodial parent; Mother’s and the child’s out-of-state relocation to live with maternal family; Father’s desire to somehow be “part of” the child’s life; and Father’s infrequent opportunities to visit the child. Given these circumstances, the court could reasonably conclude that replacing “Clayton” with “Sierra” as the child’s surname would help bolster the child’s tenuous connection with Father. Mother acknowledged the significance a name may impart, having testified she specifically gave the child a middle name related to the maternal family’s heritage. Although Mother expressed concerns the surname change could lead to the child’s “embarrassment and discomfort of having a different name than the rest of the family unit,” the court noted “[i]n today’s society it is not at all unusual for a child to have a different surname than her mother” and “[h]istorically, grandchildren almost always had a different surname than their maternal grandparents.” Substantial evidence supports the judgment in Father’s favor.

DISPOSITION

The judgment is affirmed. Costs on appeal are awarded to respondent Gabriel Sierra Montejano.