Backus v. Ellison

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

SCOTT BACKUS, Plaintiff/Appellant,

v.

ANGELA ELLISON, Defendant/Appellee.

No. 1 CA-CV 15-0019
FILED 1-5-2016

Appeal from the Superior Court in Yavapai County
No. V1300CV201480372
The Honorable David L. Mackey, Judge

VACATED AND REMANDED

APPEARANCES

Scott Backus, Camp Verde
Plaintiff/Appellant

MEMORANDUM DECISION

Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Kent E. Cattani and Judge John C. Gemmill joined.
 BACKUS v. ELLISON
Decision of the Court

J O H N S E N, Judge:

¶1 Scott Backus appeals the superior court's denial of his
application to change the name of his minor daughter ("Daughter"). For the
reasons that follow, we vacate the order denying the application and
remand for further proceedings.

FACTS AND PROCEDURAL BACKGROUND

¶2 Pursuant to Arizona Revised Statutes ("A.R.S.") section 12-601
(2015), Backus applied to change Daughter's last name to "Backus."1
Backus's application named Daughter's mother as a party to the judicial
proceeding, but it does not appear from the record that he served her with
the application. The superior court denied Backus's application without
receiving a response and without taking evidence; the court also denied his
subsequent motion for reconsideration. Backus timely appealed; we have
jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) (2015) and -2101(A)
(2015).

DISCUSSION

¶3 Section 12-601(B) allows a parent to apply to change the name
of a minor child and requires the court ruling on such application to
"consider the best interests of the minor[.]" A.R.S. § 12-601(B). The statute
requires that the application state whether the parent seeking the change
has been convicted of a felony and whether any felony charges are pending
against the parent for theft, forgery, credit-card fraud, business-fraud,
racketeering or perjury. A.R.S. § 12-601(C)(1)-(2). We will uphold a
superior court order on an application for a name change if it is supported
by reasonable evidence. See Pizziconi v. Yarbrough, 177 Ariz. 422, 426 (App.
1993).

¶4 Backus argues the superior court violated his due process and
equal protection rights by denying him a fair opportunity to be heard on
his request to change Daughter's name. We review de novo an alleged
constitutional violation. State v. McGill, 213 Ariz. 147, 157-58, ¶ 45 (2006).

¶5 Backus’s interest in having his child share his name is not a
property interest entitled to constitutional protection. See Laks v. Laks, 25
Ariz. App. 58, 60 (1975). Accordingly, Backus has not shown that he has an

1 Absent material revision after the relevant date, we cite a statute's
current version.

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 BACKUS v. ELLISON
Decision of the Court

interest entitled to due process protections. See Wedges/Ledges of Cal., Inc. v.
City of Phoenix, 24 F.3d 56, 62 (9th Cir. 1994) ("A threshold requirement to a
substantive or procedural due process claim is the plaintiff's showing of a
liberty or property interest protected by the Constitution.").

¶6 Additionally, Backus has not established an equal protection
violation. We infer Backus's argument to be that he has been treated
differently from other fathers who have filed successful name-change
applications for their children under § 12-601(B). This argument fails,
however, because, among other things, Backus has not shown how the
alleged disparate treatment limited his fundamental rights, implicated a
suspect classification, or is not rationally related to a legitimate
governmental interest. See Curtis v. Richardson, 212 Ariz. 308, 313, ¶ 18
(App. 2006) ("To establish an equal protection violation, a party must
establish (1) that it was treated differently than those who are similarly
situated, and (2) when disparate treatment does not implicate fundamental
rights or suspect classification, that the classification bears no rational
relation to a legitimate state interest").

¶7 Nevertheless, Backus correctly asserts that the superior court
provided no reason for denying his application. While the court could have
denied the application for a number of valid reasons — for example, it could
have found that Daughter's mother was an indispensable party and had not
been served or that the unverified application was insufficient to support a
finding that a name change was in Daughter's best interests — the court
provided no explanation for its denial. Because we do not know the reason
for the court's ruling, we are unable to determine whether the order is
legally correct.

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 BACKUS v. ELLISON
Decision of the Court

CONCLUSION

¶8 For the foregoing reasons, we vacate the superior court's
order denying the application for name change and remand for such
additional proceedings as the court determines are required.2

:ama

2 As noted, the record does not disclose that Backus served Daughter's
mother with the application for a name change. It does appear, however,
that he mailed the mother a copy of his opening brief. Assuming for
purposes of argument that the mother is a party to this appeal, we do not
treat her failure to file an answering brief as a confession of error because,
inter alia, Daughter's best interests are at issue. See Hoffman v. Hoffman, 4
Ariz. App. 83, 85 (1966).

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