In re the custody and placement of A. J. S.:
Bryan J. Schulte, Respondent-Respondent. Sara J. Scace, Petitioner-Appellant,
from an order of the circuit court for Green County No.
2015FA186: DUANE M. JORGENSON, Judge. Reversed.
Sherman, Kloppenburg and Fitzpatrick, JJ.
Sara J. Scace appeals from an order of the circuit court
directing that the last name of Scace's
child be changed to Scace-Schulte. Bryan J.
Schulte, who acknowledged paternity of the child, argued for
the name change. Scace argues that the court lacked the
statutory authority to order the child's name change and
that, even if the court had the authority to change the
child's name, the court erred in determining that the
name change is in the best interests of the child. We agree
that the circuit court lacked the authority to change the
child's name under these facts and reverse the order on
Scace, who was unmarried, gave birth to a child in 2014. At
birth, as reflected on the birth certificate, the child was
given only the mother's surname. At or near the time of
birth, Schulte signed a voluntary acknowledgment of paternity
form and therein asserted that he is the father of the child.
Scace commenced this action to resolve disputes between the
parties about custody, visitation, child support, and the
surname of the child. All issues were resolved by stipulation,
except the issue of changing the child's surname.
After briefing, the circuit court determined that it had the
authority to change the child's surname in this
In reviewing [Wis. Stat. ch.] 767 [(2015-16) the Court
observes that the subchapter (IX) of [§] 767 is entitled
paternity and all provision[s] from [§§] 767.80 to
767.895 are statutory provisions addressing determinations of
paternity. Additionally, [§] 767.805 states that a
voluntary acknowledgment of paternity that is conclusive
shall have the same effect as a judgment of paternity.
Consequently, this Court concludes that the provisions of
[§] 767.89 should apply to actions brought premised on
such acknowledgment of paternity. Therefore, the name change
provisions should and must be equally available to a child
whose paternity is established by the voluntary
acknowledgment or by a court ordered determination of
court then determined that the best interests of the child
are served by the hyphenated surname and ordered the change
of name. Scace appeals.
"The [circuit] courts in paternity actions are limited
to the authority provided in the paternity statutes."
State v. R.R.R., 166 Wis.2d 306, 312, 479 N.W.2d 237
(Ct. App. 1991). The question of whether the circuit court
had the authority to order the change of name in this action
involves a question of statutory interpretation.
"Statutory interpretation is a question of law that we
review de novo." State v. Cole, 2000 WI.App.
52, ¶3, 233 Wis.2d 577, 608 N.W.2d 432.
Subchapter IX (Paternity) of Wis.Stat. ch. 767 (Actions
Affecting the Family) contains a comprehensive procedure for
the determination of paternity either through an action
commenced by the filing of a petition, see Wis.
Stat. § 767.80(5), or by motion in an action already
commenced. See § 767.80(1). When a
determination of paternity is sought by a direct action or
through a motion in an already commenced action, the circuit
court issues a judgment or order of paternity. See
Wis. Stat. § 767.89. The specifics of what a judgment or
order determining paternity must contain are set forth in
§ 767.89(3). These provisions concern, among other
things, custody, placement and support. See §
767.89(3)(b), (c). In addition, the circuit court is
specifically authorized to change the name of the child in
any such judgment or order. See §
Alternatively, and in contrast to the procedure just
described, paternity can be determined by the voluntary
acknowledgement of the father. Wisconsin Stat. §
767.805, which is found in the same subchapter as Wis.Stat.
§ 767.89, provides for the voluntary acknowledgement of
paternity by filing a statement with the state registrar,
which becomes a "conclusive determination" of
paternity after the expiration of a period during which the
paternity acknowledgement can be rescinded. See
§ 767.805(1). An action for custody, placement or
support may be brought with respect to a child whose
paternity is determined by voluntary acknowledgment.
See § 767.805(3)(a). Section 767.805(1)
provides that a determination of paternity based on an
acknowledgement "shall be of the same effect as a
judgment, of paternity." Similar to where the circuit
court has issued a judgment in an action determining
paternity, the contents of an order for the custody,
placement or support of a child whose paternity is determined
by voluntary acknowledgment is set forth by statute.
See § 767.805(4).
This dispute in this case arises because, in contrast to the
statute that governs paternity judgments through direct
action, the statute that governs determinations of paternity
based on acknowledgements does not authorize a circuit court
to change the child's name. Nonetheless, the circuit
court here concluded that it had the authority to change the
child's name, pointing to ...