5D03-1208 McKay v. Haikey

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D03-1208

Case Date: 12/01/2003

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 2003

JODY McKAY, f/k/a JODY PATE, Appellant, v. JASON HAIKEY, Appellee. / Opinion Filed December 5, 2003 Appeal from the Circuit Court for Osceola County, Roger J. McDonald, Judge. Nancy Y. Smith of Brinson, Smith & Smith, P.A., Kissimmee, for Appellant. No appearance for Appellee. PLEUS, J. In this paternity action, the mother, McKay, appeals a final judgment changing the child's surname from McKay to that of the father, Haikey. She argues that the trial court violated her procedural due process rights by allowing more than one hearing on the name change issue. On the merits, she argues that the trial court abused its discretion in changing the child's surname without finding that the change was in the child's best interest. Haikey did not make an appearance in this appeal. We reverse because the father failed to prove the name change was in the child's best interest. Jody McKay and Jason Haikey, an unmarried couple, conceived a child, Kase Gregory Case No. 5D03-1208

McKay. When Kase was born, his parents were no longer dating or speaking to each other. McKay did not inform Haikey about the birth. Immediately upon giving birth, McKay named her son Kase Gregory McKay and completed the necessary paperwork for his birth certificate. Haikey learned of his son's birth the following day. Haikey visited the hospital but questioned whether he was the father and asked for a paternity test. About two weeks later, Haikey filed a petition to determine paternity in which he admitted being Kase's father and also asked that Kase's surname be changed to Haikey. At a hearing on September 27, 2002, the trial court orally ruled that the child's name would not be changed. On October 9, 2002, Haikey filed a motion to supplement the testimony, alleging that he was pro se at the first hearing and did not adequately present sufficient evidence. Now represented, Haikey wished to present additional testimony on the name change issue. On October 22, 2002, the court denied Haikey's motion to supplement the testimony. The court reasoned that neither in the prior hearing nor in the motion to supplement the testimony had Haikey demonstrated why the child's name was detrimental and why changing it would be in the child's best interest. However, the court granted Haikey 20 days to file a new motion with "legally sufficient testimony." Twenty-one days later, Haikey filed a Verified Response to Order Regarding Rehearing. He argued that the name change would be in the child's best interest because the mother used her former married name, Pate, instead of her legally-restored name, McKay. Consequently, Haikey argued that: If the Mother goes by the surname "Pate" and/or remarries and 2

takes her new Husband's name, then the minor child of these parties will not be known by either parent's surname. Hence the child's surname would be different from both parents'. The court granted rehearing on the name change issue. At the second hearing, McKay's attorney objected to the need for another hearing, arguing that the court had correctly decided the issue on October 22, 2002, and that Haikey had failed to timely move for rehearing. The court overruled the objection. Haikey testified that he believed changing the child's surname was in the child's best interest for the following reasons: My grandfather only had two kids, one guy and one girl and it's up to me and my brother to carry on the name. And I think that he

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