HomeMy WebLinkAbout92-3304 CivilIN RE:
RODGER T. ATWOOD, III,
minor child
: IN THE COURT OF C MMON PLEAS OF
CUMBERLAND COUNTY PENNSYLVANIA
NO. 3304 CIVIL I 92
CIVIL ACTION - IJW
CHANGE OF NAME
IN RE: CHANGE OF MINOR'S NAME
BEFORE OLER, J.
ORDER OF COURT
AND NOW, this2Z&�day of December, 1992, upon c
deration of
the Petition of Karen Kempf for Change of Name of alminor, Rodger
Theodore Atwood, III, born November 29, 1986, to
Kempf, and following a hearing, the Petition is
BY THE COURT,
Robert L. O'Brien, Esq.
Attorney for Petitioner
Rodger T. Atwood, II
York County Prison
1155 Concord Drive
York, PA 17402
:rc
ED.
J.
Theodore
IN RE:
RODGER T. ATWOOD, III,
minor child
IN THE COURT OF C MMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 3304 CIVIL 1992
CIVIL ACTION - Uffl
CHANGE OF NAME
IN RE: CHANGE OF MINOR'S NAME
BEFORE OLER, J.
OPINION AND ORDER OF COURT
This case arises out of a Petition for Name C
Karen Kempf, seeking a change in the name of h
Subsequent to a hearing held on November 30, 1992,
Findings of Fact, Discussion and Order of Court
entered.
FINDINGS OF FACT
1. The present Petition for Name. Change
September 17, 1992; a hearing was held on the matt
30, 1992, pursuant to proper notice to the public
petitioning parent in accordance with the Act of Dec
P.L. 1309, 56.
2. Petitioner is Karen Kempf, an adult individ
Apartment 1, 210 Hill Street, Mount Holly Spr
County, Pennsylvania.
3. The subject of the Petition for Name C
Theodore Atwood, III, a minor residing with Petitio
1, 210 Hill Street, Mount Holly Springs, Cum
Pennsylvania.
4. The Petition seeks to change the name of
Atwood, III, to Rodger Theodore Kempf.
e filed by
r minor son.
the following
are made and
was filed on
sr on November
nd to the non-
!mber 16, 1982,
Lal residing at
Is, Cumberland
Inge is Rodger
�r at Apartment
trland County,
,odaer Theodore
5. The natural father of the minor is Rodg r, or Roger,'
Theodore Atwood, II, an adult individual incarcerated at the time
of hearing herein at the York County Prison, York County,
Pennsylvania, on federal charges.
6. The said natural father opposes the Petition for Name
Change.
7. The basis for the requested name change, as stated in the
Petition, is that "the child's namesakes, both his father and
grandfather, are notorious criminals, whose names have been
referenced often in the local press concerning crimes, primarily
associated with drugs, although, one recent news report alleged the
possible involvement of [grandfather] Rodger Theodore Atwood
[, Sr.,] in a murder investigation."
8. The minor was born on November 29, 1986, being six years
old as of the hearing date. -
9. The minor resided with his parents, who were not married,
in Perry County, from birth until January, 1991, when the parents
separated; since then, he has resided with his mother; he and his
mother presently live at the aforesaid Cumberland C unty address.2
10. Following the parents' separation, Petitioner filed a
complaint for custody of the minor, and the fath r was granted
visitation.
1 The name Roger appears with more than one sp alling in these
proceedings.
2 Petitioner and the father apparently lost a house which
they owned in Perry County to federal drug forfeitu a proceedings.
These proceedings were commenced December 17, 1991, at a time when
the father and another woman, whom he later married, were occupying
the premises.
No. 3304 Civil 1992
11. Initially, and for a few months, the father spent at
least two days a week with the minor; however, visitation with that
degree of frequency eventually lapsed.
12. On February 51 1992, a federal grand jury Ldictment was
filed in the United States District Court for the Addle District
of Pennsylvania at No. 1:CR-92-030, charging the father with (a)
conspiracy in 1989-90 to distribute and possess witJ the intent to
manufacture and distribute in excess of 100 kilograns of marijuana
and (b) distribution and possession with intent to manufacture and
distribute marijuana, in 1989-90, and aiding, abetti g, counseling,
commanding and processing the same. Also charged in the indictment
was the minor's grandfather, Rodger T. Atwood, Sr., among others.
13. On the same date, indictments were f iled charging the
grandfather and a brother of the father with additional drug-
related offenses.
14. On June 12, 1992, the father entered a guilty plea; it is
Petitioner's understanding that he has been sentencefi to prison for
five years.
15. According to the Petitioner's testimony, which the Court
accepts, the foregoing resulted in publicity in the form of at
least three "articles in the Carlisle[, Cumberland County] Sentinel
claiming that they were involved in a drug ring. They operated a
drug ring in Carlisle bringing in a large amount cf drugs to the
area, and they were also investigating his grandfat r, that he may
3
No. 3304 Civil 1992
have been involved in a murder possibly."
16. According to the Petitioner's testimony, which the Court
accepts, the father is "not very well liked by people [in the
Carlisle Community]. He has quite a bad reputation."
17. The minor has been asked by a few of his f x iends if he is
related to the person mentioned in the newspaper, ard was upset by
it.
18. The minor is aware that his father is in jail and,
according to the Petitioner, "already thinks that [the name change
has] gone through. He already refers to himself as Rodger Kempf."
19. With respect to the name change, Petitioner has told the
minor that she "wanted to have his name changed t [hers] since
[they] were living together, and that [she] felt that it was easier
for [them] to have the same last name, and he accepted it."
20. No testimony of the minor was presented at the hearing.
21. In the two-year period since the minor' 5 parents have
been separated, Petitioner has directly received between $150.00
and $200.00 in child support from the father.
22. Since the father's incarceration, he haswritten his son
several times.
23. The father's reasons for opposing the n3me change are
stated in a letter sent to Petitioner's counsel as follows:
"I am writing this in regards t an
action you filed on behalf of Karen Kemp I
am most concerned about this case.
9
No. 3304 Civil 1992
"I have to question the motives of
Kempf. She claims concern for our child, 1
I feel this is a ruse. In my opinion
major concern is herself.
"Ms. Kempf and I remained togethE
years after the birth of our child. He k
me as his father he affectionately calls
grandfather 'Pappy'.
Ms.
ut,
her
0
his
"He already knows his name as Atwood I
wonder, as should you, what trauma this would
cause my boy.
"Granted, I've made many mistakes ill my
life. But, is this reason to punish a ch ld?
No. To take his namesake would be to deny him
his own identity.
"As you're well aware, I've been gra ted
partial custody. I've every intentior of
fufilling my parental duties at the earliest
possible date. Even now, I'm attempting to
maintain correspondens with my boy.
"In closing, I wish to pose this queE
to you. What do children know of the
world? By the date of my release he'll t
3rd grade. That leaves plenty of time fc
to show him that the name Atwood does
equate burden. But, a man who can chi
This will be accomplished by action. Aci
that I fully intend to take. ,3
24. No petition for involuntary termination
parental rights has been filed.
25. There are no judgments on decrees of
matter of like character against the minor.
3 The Court
and Petitioner in
record.
ion
ult
in
me
not
ge.
ons
the father's
or any other
appreciates the action of Petit' ner's counsel
submitting this letter as an a hibit for the
5
No. 3304 Civil 1992
DISCUSSION
Statement of law. By statute in Pennsylvania, subject to
certain procedural provisioned "[t]he court of commo pleas of any
county may by order change the name of any person resident in the
county. ,5 On occasion, the person involved will be a minor.'
The law pertaining to petitions for changes of names of minors
has been the subject of recent discussion by the Pennsylvania
Supreme Court in In re Change of Name of Zachary Thomas Andrew
Grimes to Zachary Thomas Andrew Grimes-Palaia, Pa. , 609
A.2d 158 (1992).' As noted generally by Justice Ca4y in Grimes,
" [ t ] he focus of the statute and the procedures ther
d Act of December 16, 1982, P.L. 1309, §6.
5 Act of December 16, 1982, P.L. 1309, §2, 54
(1992 Supp.).
r, indicate
Pa. C.S. §702
' See, e.g., In re Change of Name of Zachary Thomas Andrew
Grimes to Zachary Thomas Andrew Grimes-Palaia, Pa. , 609
A.2d 158 (1992); In re Lavin Name Change Petition, 4 Pa. D. & C. 4th
1 (Dauphin Co. 1989); In Re: Petition of J.M. & R.R., 32 Pa. D. &
C.3d 229 (Luzerne Co. 1984).
' The decision of the Court in Grimes was a nounced in an
opinion of Justice Cappy, in which Justices Flaherty and McDermott
joined and as to which Chief Justice Nix concurred in the result.
Justices Zappala and Papadakos dissented, and Justice Larsen did
not participate. In re Change of Name of Zachary Thomas Andrew
Grimes to Zachary Thomas Andrew Grimes-Palaia, Pa. , 609
A.2d 158 (1992). Under similar circumstances, the Pennsylvania
Superior Court has held the decision to be not, in strict sense,
of binding precedential effect. In re Trust of Bachman, 338 Pa.
Super. 546, 488 A.2d 27 (1985). Nevertheless, the case is an
instructive one, and the Superior Court's position on the subject
under discussion is in any event not dissimilar to that adopted in
the opinion of Justice Cappy. See note 9 infra.
R
No. 3304 Civil 1992
a liberal policy regarding change of name requests.
for judicial involvement centers on governmental
The necessity
erns that
persons not alter their identity to avoid financial obligations.
Beyond requiring compliance with the notice provisions, the statute
provides no additional guidance for courts conside ing petitions
for change of name. Absent any legislative criteria, courts
reviewing petitions for change of name exercise their discretion in
such a way as to comport with good sense, common decency and
fairness to all concerned and to the public.i'
With respect to the standard to be employed by a trial court
in considering a petition to change the name of a mi ior child, and
the burden of proof in such proceedings, the opinion of Justice
Cappy states as follows:
We can discern no rational basis for
disregarding the great weight of authority,
requiring a court to exercise discretion in
the best interest of a child, when reviewi g a
minor's petition for change of name. In
adopting this standard in Pennsylvania, we
further hold that a petitioner in uch
instance must bear the burden of establis ing
e In re Change of Name of Zachary Thomas Antfrew Grimes to
Zachary Thomas Andrew Grimes-Palaia, Pa. , , 609 A.2d
158, 160 (1972) (per Justice Cappy, with two Justices joining and
one Justice concurring in result).
7
No. 3304 Civil 1992
that a change would be in the best interes of
the child.'
"Specific guidelines are difficult to estab ish, for the
circumstances in each case will be unique, as each child has
individual physical, intellectual, moral, social and spiritual
needs.... However, general considerations should include the
natural bonds between parent and child, the social stigma or
respect afforded a particular name within the community, and, where
the child is of sufficient age, whether the child Lntellectually
and rationally understands the significance of changing his or her
name. " to
The child's preference, the effect of the proppsed change on
the preservation and development of the child's relationship with
each parent, the duration of use by the child of al name, and the
distinction or notoriety possessed by a name are among the factors
9 in re Change of Name of Zachary Thomas Anilrew Grimes to
Zachary Thomas Andrew Grimes-Palaia, Pa. , , 609 A.2d
158, 161 (1992) (per Justice Cappy, with two Justices joining and
one Justice concurring in result). The Pennsylvania Superior Court
has stated that "the child's best interests unqu tionably must
control in a proceeding to change a minor child's surname....
[T]he party urging the minor child's change of name has the burden
of coming forward with evidence that the name change requested
would be in the child's best interest .... Neither barent is to be
accorded a presumption." In the Matter ofichael Ronald
Montenegro, Jr., 365 Pa. Super. 98, 101-02, 528 A.2 1381, 1382-83
(1987).
io In re Change of Name of Zachary Thomas Ai
Zachary Thomas Andrew Grimes-Palaia, Pa. ,
158, 161 (1972) (per Justice Cappy, with two Justi
one Justice concurring in the result).
N
:-ew Grimes to
609 A.2d
s joining and
No. 3304 Civil 1992
which have been utilized in the process of
adjudication. In Re: Niedbala, a/k/a Hickey, 36 Pa
(Allegheny Co. 1985). Factors said to be irrelev
interest of a child who lacks sufficient understand
trial court
D. & C.3d 397
at to the best
g to choose a
name for himself or herself are "protectible parent 1 interests or
whether the parents are married, divorced or never married[11] or
whether they are male or female." Id. at 402.
Appellate judicial decisions on the subject ve included a
recent Supreme Court reversal and remand of a lowet court's order
granting a name change where the record contained conflicting
representations as to the minor's preference, testinony as to close
bonds between the child and the nonpetitioning parent's family, and
a suggestion of hostile motivation by the petitioning parent in
connection with the nonpetitioner.12 Trial court decisions in this
area have included, variously, a grant of name cbange where the
affected minors had become established in a new family unit, where
one of them had been using the new family surname and where the
nonpetitioning parent had been sentenced to up to fifteen years in
prison for attempted murder, inter alia;13 a denial of name change
11 At birth, a child of an unmarried woman ma be registered
with any surname requested by the mother. 28 Pa. ode X1.6.
12 In re Change of Name of Zachary Thomas Ar.
Zachary Thomas Andrew Grimes-Palaia, Pa.
(1992).
13 In Re: Petition of J.M. & R.M., 32 Pa.
(Luzerne Co. 1984).
OJ
ew Grimes to
609 A.2d 158
ID. & C.3d 229
No. 3304 Civil 1992
where the minor's registered name was that of a loving and
reputable father, where the record was ambivalent as to relative
usage of the registered and proposed names, where the minor
identified herself in uncontrived situations by the registered
name, where the proposed name was that of her mother by a former
marriage, was that of her half -siblings, and was a so reputable,
and where abandonment of the registered name would deprive the
child of another link to the nonpetitioning parent; :4 and a denial
of name change where the proposed surname was that f the mother,
where the affected minors expressed a preference for the proposed
name, where the mother's hostility toward the father was evident in
the proceedings, and where the reason offered foz the proposed
change was the minors' love for their mother and f icilitation of
family traveling."
In denying a request for change of a minor's name, one court
has noted that, "[i]n this age of numerous divorces and
illegitimate children, there is nothing unusual about varying
family surnames and society does not frown upon I t. 1116 Another
court has observed that a petitioning parent's relationship with a
14 In Re: Niedbala, a/k/a Hickey, 36 Pa. D. & C.3d 397
(Allegheny Co. 1985).
15 In re Lavin Name Change Petition, 4 Pa. D. & C.4th 1
(Dauphin Co. 1989).
16 In re Lavin Name Change Petition, 4 Pa.& C.4th 1, 5
(Dauphin Co. 1987). 11
10
No. 3304 Civil 1992
child "will abide" regardless of the decision on a
change, but
a change of the name will "deprive [the child] of a other link to
the [parent] from whom [the child] is separated ... ""
Application of law to facts. Militating in fav r of ordering
the name change requested in the present case are (it) the lack of
respect accorded the child's present name among at least some
members of the local community and (b) the father's nonexemplary
conduct as a parent in the recent past. Militating against such an
order are (a) the absence in the record of testimony of the child,
and the indication that he is not fully aware of the Petitioner's
purpose in seeking a name change, (b) the child's life-long use of
the present surname, (c) the significant family h story between
father and child prior to parental separation, ( ) the desire
expressed by the father for a parental relationship with his son,
(e) the adverse effect upon such a relationship whicl.. a name change
would have in the father's present circumstances, (r) the lack of
substantial evidence of harm suffered by the child from his
existing surname, (g) the less than unique poor rep
father, and (h) the fact that the mother's devotio:
will not be diminished by a retention of the prese
balance, and in view of the burden of proof applicat
Court does not believe that a change of name of
17 In Re: Niedbala, a/k/a Hickey, 36 Pa. D. &
(Allegheny Co. 1985).
11
tation of the
to the child
name. On
le herein, the
the minor is
JC.3d 397, 403
No. 3304 Civil 1992
warranted at this time.
ORDER OF COURT
AND NOW, this ,;OA day of December, 1992, upon co sideration of
the Petition of Karen Kempf for Change of Name of a minor, Rodger
Theodore Atwood, III, born November 29, 1986, to Ripdger Theodore
Kempf, and following a hearing, the Petition is DEN ED.
BY THE COURT,
Robert L. O'Brien, Esq.
Attorney for Petitioner
Rodger T. Atwood, II
York County Prison
1155 Concord Drive
York, PA 17402
:rc
12
J.
J
JOHN S. HABOWSKI,
Petitioner
V.
COMMONWEALTH OF PENNSYLVANIA, :
DEPARTMENT OF TRANSPORTATION, :
Defendant
IN
IN THE COURT OF C MMON PLEAS OF
CUMBERLAND COUNTI, PENNSYLVANIA
NO. 2654 CIVIL 1992
CIVIL ACTION -
BEFORE OLER, J.
OPINION AND ORDER OF COURT
This case is an appeal by John S. Habowski fron a suspension
of his operating privilege by the Pennsylvania Department of
Transportation for refusal to submit to a chemical test to
determine the alcohol content of his blood underPennsylvania's
implied consent law.' A hearing was held on the ap eal on October
8, 1992, before the undersigned judge. Based upon the evidence
submitted at the hearing, the following Findings of Fact,
Discussion, and Order of Court are made and entered.
FINDINGS OF FACT
1. The Appellant is John S. Habowski.
2. On July 20, 1992, the Appellant was arrested by Officer
James I. McAndrew of the Hampden Township Police Department for
driving under the influence, and transported to the Cumberland
County Central Booking Department.
3. The Appellant was given his Miranda warnings at the
Booking Department and was subsequently asked t submit to a
breathalyzer test.
1 Act of June 17, 1976, P.L. 162, §1, 75 Pa.1C.S. §1547.
I
No. 2654 Civil 1992
4. With respect to the request to submit to he test, the
Appellant was told that he did not have a right to an attorney, but
was not told why such right was inapplicable.
5. Appellant refused to submit to the test, after expressing
concern that his denture might affect the result, and after
attempts by the operator, in response to his request, to locate
instructions or regulations on the subject were unsuccessful.
6. Appellant's operating privilege was suspended for twelve
months on the basis of his refusal to submit to the test.
7. At the hearing before the Court, Appellant claimed to have
been confused as to his right to an attorney in conne tion with the
test.
8. The Court finds that the Defendant's refusal to submit to
the test was the result of the concern he expressEd at the time
regarding dentures.
9. The Court finds that at the time of t e Defendant's
refusal to submit to the test his confusion was no over Miranda
rights.
DISCUSSION
"In [Commonwealth, Department of Transportation, Bureau of
Traffic Safety v.] O'Connell[, 521 Pa. 242, 555 A.2d 873 (1989)],
[the Pennsylvania Supreme] Court held that where a police request
for chemical testing [under Pennsylvania's implied consent law] is
preceded by Miranda warnings, the police have an a firmative duty
2
11
No. 2654 Civil 1992
to not only inform the arrestee that his driving privileges will be
suspended for one year if he refuses chemical testli.ng, but also
that the arrestee does not have the right to co*sult with an
attorney or anyone else prior to deciding wheth4r to perform
chemical testing." Commonwealth v. Danforth, Pa , , 608
A.2d 1044, 1046 (1992). This duty is "not contingent upon the
arrestee exhibiting confusion concerning his right tc speak with an
attorney, or actually requesting to speak with an atorney." Id.
The "per se ,2 rule thus established is based upon Ithe following
premise:
There is overwhelming unfairness inheren in
the situation where an arrestee is initially
told that he has a right to consult witl an
attorney, and then in conjunction wita a
request for chemical testing is told that a
refusal will result in suspension of dri ing
privileges without being informed that his
right to counsel is inapplicable. Under t ese
circumstances, the defendant cannot poss'bly
make a knowing and conscious refusal, as he
may reasonably believe that he is entitlei to
counsel prior to submitting to the 'cal
testing and refuse on this basis wit out
exhibiting confusion or specifically
requesting counsel.
Id. Where a refusal to submit to chemical testing �s not knowing
and conscious, it will not support a suspension of
privilege. Id.
In a case where "Miranda warnings [have] prec
2 See Commonwealth v. Danforth, Pa. _
1044, 1047 (1992) (Papadakos, J., dissenting, joi
and McDermott, J.).
C
's operating
the request
, , 608 A.2d
by Nix, C.J.,
No. 2654 Civil 1992
for chemical testing and the implied consent
[,] ••• we
have per se confusion which can be cured only by an adequate
O'Connell explanation or by an admission by Lice see that his
confusion was not over Miranda rights." Commonweal h, Department
of Transportation, Bureau of Driver Licensing v. Sorg, Pa.
Commw. , , 606 A.2d 1270, 1275 (1992).
With respect to a cure in the form of an adequate O'Connell
explanation, such an explanation has been said t require the
imparting of the following information:
1. That an individual's constitutional ri hts
when accused of a crime do not apply to the
chemical testing procedure u der
Pennsylvania's Vehicle Code.
2. Specifically, that the licensee haE no
right to consult with counsel or anyone else
before taking the test.
3. That the Miranda protections are not
applicable because chemical testing is a civil
procedure, not a criminal proceeding, an the
Miranda protections only apply in criminal
proceedings, but the licensee's refusal to
submit to the testing may be introducel in
evidence in a subsequent criminal procee ing.
Id.at , 606 A.2d at 1274. "A truly meaningful WiLrning requires
... an explanation as to why [the Miranda] rights do not apply [to
the request to submit to chemical testing]. Tor quire anything
less contravenes the purpose of O'Connell T. at , 606
A.2d at 1273.
With respect to a cure in the form of an
licensee that his or her confusion was not over
4
ssion by a
randa rights,
No. 2654 Civil 1992
such a concession may be implicit "in a situation where the
licensee, by his own evidence, indicates that his con Eusion was not
over Miranda rights." Kitchenoff v. Commonwealth, Department of
Transportation, Pa. Commw. , , 608 A.2d 64 , 647 (1992).
Thus, it has been held that a trial court properly upheld a
licensee's suspension in a case where the licensee "had only one
complaint - that the display on the chemical testing equipment
concerned him in that he believed that the appearance of the
numbers on the display presented the potential for him to be
prejudiced by an inaccurate reading. No O'Connell warning could
have alleviated his concerns." Id. at , 608 A.2 at 648.
In the present matter, the O'Connell explanation should
arguably be deemed to have been inadequate in that it did not
inform Appellant of the reason that Miranda rights are not
applicable to a request for chemical testing. At the same time, in
accordance with the foregoing Findings of Fact this case is one in
which evidence of the licensee's own statements indicates that his
confusion was not over Miranda rights. Consequently, the following
Order will be entered.
ORDER OF COURT
AND NOW, this 1j t� day of December, 1992, u
5
(consideration
No. 2654 Civil 1992
of Appellant's Appeal from license suspension a
hearing, the appeal is DENIED.
Henry F. Coyne, Esq.
Attorney for Petitioner
Matthew X. Haeckler, Esq.
Assistant Counsel
Commonwealth of Pennsylvania
Department of Transportation
:rc
BY THE COURT,
J. Wesley Oler, Jr., 4.
0
following a