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No. 103,285 IN THE COURT OF APPEALS OF THE STATE OF KANSAS CHRISTOPHER STABEL and KAMRYN ALVIA MEYER, A Minor Child, By and Through Her Next Friend, CHRISTOPHER STABEL, Appellees, v. JESSIKA LEIGH MEYER, Appellant. SYLLABUS BY THE COURT 1. K.S.A. 38-1130(a) of the Kansas Parentage Act provides that when the parents of a minor child desire to change the last name of the child to the last name of either parent, both parents must appear and request the relief.

2. The legal maxim expressio unius est exclusio alterius--the inclusion of one thing implies the exclusion of another--limits a Kansas court's jurisdiction in a Kansas Parentage Act proceeding to change a child's last name to situations where both parents agree to the request.

Appeal from Ellis District Court; EDWARD E. BOUKER, judge. Opinion filed May 27, 2011. Reversed.

Leslie A. Hess, of Hays, for appellant.

Kip Johnson, of Oller, Johnson & Bittel, L.L.C., of Hays, for appellees.

Before PIERRON, P.J., ATCHESON, J., and LARSON, S.J. 1

PIERRON, J.: This appeal questions a district court's authority to change a child's last name without both parents' consent in a paternity action brought under the Kansas Parentage Act (KPA), K.S.A. 38-1110 et seq. Here, the mother, Jessika Leigh Meyer, appeals from the district court's holding that although case law conflicts, it would follow cases indicating it had the authority to consider the father's, Christopher Stabel request to change their child's, Kamryn Alvia Meyer, last name without Jessika's consent.

Jessika was dating Christopher when she became pregnant. On Kamryn's birth certificate Jessika named Christopher as the father but gave Kamryn her last name-- Meyer. Christopher credits Jessika's refusal to give Kamryn's his last name as the catalyst that ended their relationship. He requested that the district court change Kamryn's last name to Stabel as part of his paternity action filed shortly after Kamryn's birth under the KPA.

As the paternity action progressed, Jessika and Christopher were unable to resolve the issue of Kamryn's last name. The district court ordered them to submit written arguments on that issue. Jessika argued the court lacked statutory authority to change Kamryn's last name without her consent, but even if the court had such authority, Kamryn's last name should remain Meyer. Christopher insisted the court had discretion to grant his request based on Kamryn's best interests.

In a memorandum decision, the district court expressed justifiable confusion over the apparent conflict in the appellate case law relied upon by the parties but ultimately concluded it had authority to change Kamryn's last name after it heard evidence to determine if the change was in her best interests. After conducting an evidentiary hearing, the court ordered Kamryn's last name changed to Stabel.

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Jessika's sole issue on appeal is that the district court lacked statutory authority to change Kamryn's last name to Stabel because the KPA allows the court to change a child's surname only if both parents consent, and she did not consent. Christopher acknowledges there are inconsistent decisions from the appellate courts on the issue and asks us to either follow the case law supporting the district court's conclusion that it had authority to change Kamryn's last name based on her best interests or to find that, as a matter of public policy, a district court should be allowed to determine what surname is best for a child born of unwed parents.

We have unlimited review over the legal question of whether a court has statutory authority. See Shipe v. Public Wholesale Water Supply Dist. No. 25, 289 Kan. 160, 165, 210 P.3d 105 (2009). Appellate courts also have unlimited review when, as here, we are called upon to interpret statutes. See Unruh v. Purina Mills, 289 Kan. 1185, 1193, 221 P.3d 1130 (2009).

K.S.A. 38-1130

Jessika's argument primarily centers around K.S.A. 38-1130, which sets forth a procedure for parents who jointly desire to have their child's birth certificate amended to add the name of a parent, correct either parent's name, or change the child's last name to that of either parent. That statute requires both parents to voluntarily acknowledge parentage and execute and submit to a district court judge or authorized hearing officer affidavits attesting to their desire to amend the child's birth registration. K.S.A. 381130(a). Once the parents meet their evidentiary burden, a judge or hearing officer who finds the birth certificate should be amended effectuates the requested change by forwarding to the state registrar of vital statistics the parents' affidavits and a certified order to prepare a new birth registration in the manner as set forth in K.S.A. 38-1128. K.S.A. 38-1130(b). K.S.A. 38-1130(c) requires the court or hearing officer to then return all evidence to the child's parents, prohibits charging a fee for performing the name3

change service, and prohibits the district court from opening a case file or otherwise making any record of performing the service.

Conflict in case law

The difficulty in resolving this issue stems from apparent inconsistent appellate decisions that have addressed a district court's authority to consider changing a child's name in a paternity action. An overview of those decisions sets the stage for the parties' arguments:

Struble v. Struble, 19 Kan. App. 2d 947, 879 P.2d 37 (1994), involved a custody and paternity action in which the mother argued the child should carry the name of both parents, not just the father's, because that had become a cultural norm for a child born of a nonmarital relationship. In addition to her failure to present that argument at the trial level, the Struble court found the argument lacked merit. 19 Kan. App. 2d at 948-49. Struble held that in the absence of statutory law governing the issue of whether a child born to a nonmarital relationship should have the surname of the mother, father, or both, a trial court has discretion to decide the child's surname based on the child's best interests. 19 Kan. App. 2d 947, Syl. The Struble court found that the district court did not abuse its discretion in ordering the child's surname to be that of the father. 19 Kan. App. 2d at 949.

In Denk v. Taylor, 25 Kan. App. 2d 172, Syl.

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