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  "name": "IN THE MATTER OF THE CHANGE OF NAME OF CHADWICK HOLLAND CRAWFORD TO CHADWICK HOLLAND CRAWFORD TRULL, BY MARY HOLLAND TRULL, PETITIONER",
  "name_abbreviation": "In re the Change of Name of Crawford",
  "decision_date": "1999-07-06",
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    "judges": [
      "Judges GREENE and WYNN concur."
    ],
    "parties": [
      "IN THE MATTER OF THE CHANGE OF NAME OF CHADWICK HOLLAND CRAWFORD TO CHADWICK HOLLAND CRAWFORD TRULL, BY MARY HOLLAND TRULL, PETITIONER"
    ],
    "opinions": [
      {
        "text": "MARTIN, Judge.\nPetitioner Mary Holland Trull and respondent Patrick Sullivan Crawford are the natural parents of Chadwick Holland Crawford, bom 7 October 1996. Petitioner and respondent have never been married, and neither is presently married to another. On 10 October 1996, both petitioner and respondent executed an Affidavit of Paternity acknowledging respondent as Chadwick\u2019s father, and on 23 October 1996, respondent submitted to a paternity test which confirmed a 99.92% probability that respondent is Chadwick\u2019s biological father. Both petitioner and respondent are listed on Chadwick\u2019s birth certificate as the child\u2019s parents, and by their mutual agreement, the child\u2019s name was stated on the birth certificate as \u201cChadwick Holland Crawford.\u201d\nOn 18 September 1997 petitioner filed a Petition for Name Change seeking to change Chadwick\u2019s name from \u201cChadwick Holland Crawford\u201d to \u201cChadwick Holland Crawford Trull.\u201d Petitioner alleged, as grounds for the name change, that she had suffered embarrassment by reason of having a surname different from that of her child, and that her child\u2019s different surname was a source of confusion to others. Respondent filed a Motion to Intervene and a Response to the Petition for Name Change, objecting to the child\u2019s name being changed. Although respondent acknowledged paternity shortly after the child\u2019s birth, the record does not indicate that the child has been legitimated.\nThe matter came to hearing before the Clerk of Superior Court for Wake County. The clerk found facts consistent with the foregoing summary, concluded \u201c[t]here is no legal or statutory authority permitting the name change as requested in the absence of consent by [respondent], the father of the minor child,\u201d and denied the petition. Petitioner appealed to the superior court, which affirmed the order of the clerk. Petitioner appeals.\nI.\nPetitioner first argues that both the clerk of superior court and the superior court erred in concluding that respondent\u2019s consent was necessary to change Chadwick\u2019s surname. Specifically, petitioner contends that because Chadwick was born out of wedlock and has not been legitimated, G.S. \u00a7 130A-101 operates to vest petitioner with superior rights in naming the child; that despite respondent\u2019s acknowledgment of paternity, petitioner could have refused to allow Chadwick to bear respondent\u2019s surname; and that it \u201cis illogical that her action in initially acquiescing in the use of [respondent's surname is sufficient to confer an absolute right upon him to thereafter withhold consent to her actions.\u201d\nG.S. \u00a7 130A-101(f)(4), upon which petitioner relies, provides, in pertinent part, that,\n(f) If the mother was unmarried at all times from date of conception through date of birth, the name of the father shall not be entered on the certificate unless the child\u2019s mother and father complete an affidavit acknowledging paternity ....\n(4) Upon the execution of the affidavit, the declaring father shall be listed as the father on the birth certificate and shall be presumed to be the natural father of the child, subject to the declaring father\u2019s right to rescind under G.S. 110-132 .... The surname of the child shall be determined by the mother, except if the father\u2019s name is entered on the certificate, the mother and father shall agree upon the child\u2019s surname. If there is no agreement, the child\u2019s surname shall be the same as that of the mother.\nN.C. Gen. Stat. \u00a7 130A-101(f)(4) (emphasis added). Here, there is no dispute that petitioner and respondent executed an Affidavit of Paternity acknowledging respondent as Chadwick\u2019s natural father; that respondent\u2019s name is entered on the birth certificate as the father; and that respondent and petitioner agreed that the child would bear the name \u201cChadwick Holland Crawford.\u201d Thus, under the statute, the child was properly given respondent\u2019s surname.\nPetitioner, however, apparently contends that because Chadwick has not been legitimated, she can unilaterally withdraw her consent as to the child\u2019s surname and change it to her own. G.S. \u00a7 130A-101(f)(4) plainly contains no such authority and we cannot, under the guise of statutory interpretation, write such a provision into it. See Walker v. North Carolina Coastal Resources Comm\u2019n, 124 N.C. App. 1, 11, 476 S.E.2d 138, 144 (1996), disc. review denied, 346 N.C. 185, 486 S.E.2d 220 (1997) (quoting Burgess v. Your House of Raleigh, 326 N.C. 205, 209, 388 S.E.2d 134, 136 (1990)) (\u201c \u2018[w]here the language of a statute is clear and unambiguous, there is no room for judicial construction and the courts must construe the statute using its plain meaning\u2019 \u201d).\nPetitioner also argues that in determining that respondent\u2019s consent is necessary to change Chadwick\u2019s surname, the lower courts erroneously afforded more weight to G.S. \u00a7 101-2, the name change statute, than to G.S. \u00a7 130A-101. Although neither the clerk\u2019s order nor the superior court\u2019s order affirming it cites G.S. \u00a7 101-2, the statute is pertinent to the issue of respondent\u2019s consent. As relevant to the issue before us, G.S. \u00a7 101-2 provides:\nApplications to change the name of minor children may be filed by their parent or parents or guardian or next friend of such minor children, and such applications may be joined in the application for a change of name filed by their parent or parents: Provided nothing herein shall be construed to permit one parent to make such application on behalf of a minor child without the consent of the other parent of such minor child if both parents be living ....\nN.C. Gen. Stat. \u00a7 101-2 (emphasis added). Citing In re Dunston, 18 N.C. App. 647, 197 S.E.2d 560 (1973), petitioner contends the word \u201cparent\u201d as contained in the statute does not include respondent, and his consent to change Chadwick\u2019s surname is not required.\nIn Dunston, the mother of an illegitimate child whose father was unknown sought to change the child\u2019s name to that of the child\u2019s stepfather. This Court, in holding that G.S. \u00a7 101-2 did not require the stepfather\u2019s consent to the change, stated,\nG.S. s 101-2 contemplates only the situation where one natural or adoptive parent petitions for the change of name of a child, and the other parent stands to lose his name with respect to that child .... Where the natural mother petitions to change the name of her illegitimate child, the consent of no other person is logically required, as no other person has any \u2018rights\u2019 inherent in that child\u2019s name.\nDunston at 649, 197 S.E.2d at 562 (emphasis added). Dunston is distinguishable from the present case in that respondent does, in fact, have rights in the child\u2019s name by virtue of the parties\u2019 agreement pursuant to G.S. \u00a7 130A-101(f)(4). The natural father in Dunston was unknown, clearly played no role in the child\u2019s life, and the child\u2019s birth certificate listed no one as the father. The issue of the necessity of the natural father\u2019s consent was not at issue, and the italicized portion of the Court\u2019s opinion quoted above is dicta, inapplicable to the present facts.\nMoreover, the Dunston court elaborated on the meaning of \u201cparent\u201d within the statute, stating, \u201cG.S. s 101-2 speaks in terms of \u2018parents\u2019, a father or mother. One is either a natural parent, or an adoptive parent.\u201d Dunston at 649, 197 S.E.2d at 562. Respondent, as Chadwick\u2019s legally recognized natural father, in both an Affidavit of Paternity and the birth certificate, clearly fits within an ordinary definition of \u201cfather\u201d and \u201cnatural parent.\u201d See Smith v. Bumgarner, 115 N.C. App. 149, 151, 443 S.E.2d 744, 745 (1994) (citation omitted) (\u201cA statute\u2019s words should be given their natural and ordinary meaning.\u201d). Thus, under the present facts, there is no authority, statutory or deci-sional, permitting petitioner to unilaterally change Chadwick\u2019s surname absent respondent\u2019s consent.\nII.\nBy her second and fourth assignments of error, petitioner argues that the denial of her petition to change the minor\u2019s surname unconstitutionally infringes upon her interest in the name of her minor child, thereby violating her rights to due process and equal protection of the laws. While her arguments clearly appear to be without merit, we decline to address these assignments of error because the record fails to show that petitioner raised such constitutional arguments before the clerk or the superior court. N.C.R. App. P. 10(b)(1).\n[Rule 10(b)(1)] requires a question to be presented first to the trial court by objection or motion. The record on appeal does not reflect that the issue of constitutionality . . . was presented to the trial court. This Court has held that it will not pass upon the constitutionality of a statute where the record does not reveal that the trial court was confronted with the issue and passed upon it. State v. Robertson, 57 N.C. App. 294, 291 S.E.2d 302, disc. review denied, appeal dismissed, 305 N.C. 763, 292 S.E.2d 16 (1982).\nState ex rel. Environmental Management Com\u2019n v. House of Raeford Farms, Inc., 101 N.C. App. 433, 448-49, 400 S.E.2d 107, 117 (1991), rev\u2019d on other grounds, House of Raeford Farms, Inc. v. State ex rel. Environmental Management Com\u2019n, 338 N.C. 262, 449 S.E.2d 453 (1994). See also, e.g., State v. Horner, 310 N.C. 274, 283, 311 S.E.2d 281, 287 (1984) (citation omitted) (\u201c[I]n order for an appellant to assert such [a constitutional] right on appeal, the issue must have been presented to the trial court.\u201d); State v. Cooke, 306 N.C. 132, 137, 291 S.E.2d 618, 621 (1982) (citations omitted) (\u201c[A] constitutional question which is not raised and passed upon in the trial court will not ordinarily be considered on appeal.\u201d).\nIII.\nIn her final assignment of error, petitioner alleges that both the clerk and the superior court committed reversible error in failing to consider Chadwick\u2019s best interests. Our General Assembly, however, has not required a \u201cbest interests of the child\u201d inquiry in the context of naming a child under G.S. \u00a7 130A-101(f)(4), nor in the changing of a child\u2019s name under G.S. \u00a7 101-2. While the General Assembly has specifically required such an inquiry in contexts such as termination of parental rights, child custody and placement, parental visitation rights, and even in the context of a change in surname on a birth certificate following legitimation, see N.C. Gen. Stat. \u00a7 130A-118, its failure to require a best interests inquiry in connection with G.S. \u00a7 101-2 and G.S. \u00a7 130A-101(f)(4) is clear evidence of its intent that no such inquiry is required in this context. This assignment of error is overruled. See Electric Supply Co. v. Swain Electrical Co., 328 N.C. 651, 656, 403 S.E.2d 291, 294 (1991) (citation omitted) (\u201cLegislative purpose is first ascertained from the plain words of the statute.\u201d); Nationwide Mutual Ins. Co. v. Mabe, 342 N.C. 482, 494, 467 S.E.2d 34, 41 (1996) (citation omitted) (\u201c \u2018The cardinal principle of statutory construction is that the intent of the legislature is controlling.\u2019 \u201d).\nThe order of the trial court denying petitioner\u2019s Petition for Name Change is affirmed.\nAffirmed.\nJudges GREENE and WYNN concur.",
        "type": "majority",
        "author": "MARTIN, Judge."
      }
    ],
    "attorneys": [
      "Johnson, Mercer, Hearn & Vinegar, PLLC, by Jennifer M. Green, for petitioner-appellant.",
      "Jordan Price Wall Gray Jones & Carlton, by R. Frank Gray and Hope Derby Carmichael, for respondent-appellee."
    ],
    "corrections": "",
    "head_matter": "IN THE MATTER OF THE CHANGE OF NAME OF CHADWICK HOLLAND CRAWFORD TO CHADWICK HOLLAND CRAWFORD TRULL, BY MARY HOLLAND TRULL, PETITIONER\nNo. COA98-1274\n(Filed 6 July 1999)\n1. Parent and Child\u2014 name change \u2014 unmarried parents\u2014 father\u2019s consent required\nBoth the clerk of superior court and the superior court judge correctly denied a name change for a minor child where respondent and petitioner were never married, both had executed an Affidavit of Paternity acknowledging respondent as the father, respondent had submitted to a paternity test which confirmed a 99.92% probability that respondent is the father, both respondent and petitioner are listed on the birth certificate, and petitioner later filed this petition to change the child\u2019s surname to match hers. The child was properly given respondent\u2019s name under N.C.G.S. \u00a7 130A-101(f)(4) and that statute contains no authority for petitioner to unilaterally withdraw her consent as to the child\u2019s surname and change it to her own.\n2. Parent and Child\u2014 changing child\u2019s name \u2014 consent of both parents required\nNeither the clerk of superior court nor the superior court judge erred by denying a petition to change the name of a minor where the parents were never married, the natural father\u2019s surname was given to the child on the birth certificate, and the mother sought to change the surname to her own over the father\u2019s objection. N.C.G.S. \u00a7 101-2 does not permit one parent to change the name of minor children without the consent of the other living parent and respondent here clearly fits an ordinary definition of \u201cfather\u201d and \u201cnatural parent.\u201d\n3. Appeal and Error\u2014 appealability \u2014 issue not raised below\nAssignments of error relating to the constitutionality of denying a petition to change the name of petitioner\u2019s minor child were not addressed where those issues where not raised before the clerk or in superior court.\n4. Parent and Child\u2014 change of child\u2019s name \u2014 best interests of child \u2014 not considered\nNeither the clerk of superior court nor the superior court judge erred by failing to consider a child\u2019s best interests when refusing his mother\u2019s petition to change his name. The General Assembly has not required a \u201cbest interests\u201d inquiry in the context of naming a child under N.C.G.S. \u00a7 130A-101(f)(4) or in the changing of a child\u2019s name under N.C.G.S. \u00a7 101-2. Its failure to do so in this context when it has in others is clear evidence of its intent that no such inquiry be required.\nAppeal by petitioner from order entered 15 June 1998 by Judge Robert L. Farmer in Wake County Superior Court. Heard in the Court of Appeals 11 May 1999.\nJohnson, Mercer, Hearn & Vinegar, PLLC, by Jennifer M. Green, for petitioner-appellant.\nJordan Price Wall Gray Jones & Carlton, by R. Frank Gray and Hope Derby Carmichael, for respondent-appellee."
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