DUNN, Chief Justice.
This is an appeal from an adoption proceeding instituted in the District County Court, Seventh District, Brookings County, ■ South Dakota. The respondent, Michael E. McCann, petitioned to adopt Dalyn Cordell Christofferson and Michael Martin Christofferson, minor children of Judy K. McCann, wife of respondent, and Jerry C. Christofferson, appellant, natural father of the minor children and former husband of Judy K. McCann. Appellant did not consent to the adoption, and in this action respondent claimed that appellant had abandoned the children as defined by SDCL 25-6-4(2). The appeal is from a judgment granting the adoption in which appellant contends that the evidence was insufficient to establish abandonment. We affirm.
The evidence indicates that appellant remarried shortly after the divorce on May 11, 1972, and assumed full support of his new wife and her three children. After the divorce was granted, appellant made payments of support on two occasions: (1) Payments were made after the June 9, 1972 hearing to avoid a sixty-day jail sentence for contempt, and (2) Further payments were made after appellant was arrested in the State of Montana under a reciprocal warrant. Total payments made by the appellant from May 1972 until October 1973, were approximately $600 pursuant to the contempt order and the reciprocal support order. At the time of the adoption hearing on October 17, 1973, appellant was in arrears in his child support in the approximate amount of $3,620. Evidence was obtained from the appellant that he was gainfully employed during most of this period, having paid tax on an income of $7,000 in 1972; that he had been a partner in a business in Rapid City from March 1973, to the date of hearing, during which time his earnings were $700 per month; and, further, that he was entitled to one-half of $15,000 of undivided profits in the firm.
[289]*289After the contempt hearings in Brookings on June 9, 1972, appellant left the area and the state without advising anyone of his whereabouts, and it was only after considerable investigation and the filing of a reciprocal support action that he was found in the State of Montana.
Following the divorce in May 1972, the appellant only visited the children once — on October 15, 1973 — at about the time the adoption hearing was held. During this period he wrote one letter and one card to the children; talked to them by phone once and sent gifts on Christmas and birthdays (one birthday gift was a check for $25 which was returned marked, “ACCOUNT CLOSED”).
The appellant testified that he loved his children and had never intended to abandon them; that he did not pay child support because of his erratic employment and because of the fact that he had remarried on August 31, 1972, and had assumed the full obligation of supporting his new wife and her three children; that he had communications with or pertaining to his children, but that he had been denied visitation rights by Judy McCann; that he had left South Dakota without leaving a forwarding address to avoid harassment in his employment by Judy McCann; and, finally, that Judy McCann had informed him on some daté in 1973 that she was not seeking any further support from him.
Judy McCann denied that she had ever interfered with visitation rights in Brookings, but that she had objected to his taking the children to Montana. She also denied that she had ever harassed appellant in his employment, or that she had ever agreed to forego support for the children. She did testify that following her association with Michael McCann she had told appellant that she would take no further court action to collect support. Judy McCann did indicate that appellant had sent a card and a letter and that he had sent gifts at Christmas and on birthdays. Evidence of appellant’s considerable earnings during the period in question was adduced under cross-examination.
We last dealt with the question of abandonment under this statute in Mastrovich v. Mavric, 1939, 66 S.D. 577, 287 N.W. 97. This standard was established:
[290]*290“To constitute abandonment under our code it must appear by clear and convincing evidence that there has been by the parents a giving-up or total desertion of the minor child. In other words, there must be shown an absolute relinquishment of the custody and control of the minor and thus the laying aside by the parents of all care for it.” 66 S.D. at 579. 287 N.W. at 97-98.
This case also established that abandonment was a question of fact for the trial court. Appellant here questions the legal sufficiency of the evidence and principally argues that there was no showing of intent to abandon on his part. We agree that it is necessary to establish an intent to abandon and to relinquish parental obligations. An involuntary inability to assume a parental role will not constitute abandonment. Moody v. Voorhies, 1970, 257 Or. 105, 475 P.2d 579. Most courts have interpreted similar statutes as requiring an intentional abandonment. In re Adoption of Snellgrose, 1967, 425 Pa. 258, 228 A.2d 764; Pitzenberger v. Schnack, 1932, 215 Iowa 466, 245 N.W. 713; In re Anderson, 1933, 189 Minn. 85, 248 N.W. 657. As is generally the case, intent to abandon may be inferred from conduct. Moreau v. Buchholz, 1951, 124 Colo. 302, 236 P.2d 540.
Substantial evidence of appellant’s failure to support his children, although gainfully employed, appears in this record. While this failure does not conclusively establish abandonment, it is a strong factor in such a determination. Petition of Martensen, 1954, 129 Colo. 125, 267 P.2d 658. Other factors include a parent’s presence, love, care and affection. In re Asterbloom’s Adoption, 1946, 63 Nev. 190, 165 P.2d 157.
Although it was undisputed at trial that appellant did make some few contacts with his children, this fact does not in itself negate a finding of abandonment. In a remarkably similar case, the Supreme Court of Nevada upheld the trial court’s finding of abandonment under a statute which required an absence of communication for a period, of one year. In Re Carson, 1960, 76 Nev. 446, 357 P.2d 591. The court stated that:
“Although appellant’s earnings in 1957 amounted to $6,000 and in 1958 to $5,000 and in 1959 to $3,500 to [291]*291the date of the trial, he contributed nothing to the child’s support and his gifts to the child were limited to those made on the child’s birthday and on Christmas. He made no real attempt to insist upon or to enforce his rights of visitation under the divorce decree. It is true that he sought to prove that his attempts to communicate with his infant son were frustrated by respondent and by her attorney and by her accountant, and we are urged to accept this proof. This, of course, we cannot do in view of the court’s findings.” 357 P.2d at 593.
Free access — add to your briefcase to read the full text and ask questions with AI
DUNN, Chief Justice.
This is an appeal from an adoption proceeding instituted in the District County Court, Seventh District, Brookings County, ■ South Dakota. The respondent, Michael E. McCann, petitioned to adopt Dalyn Cordell Christofferson and Michael Martin Christofferson, minor children of Judy K. McCann, wife of respondent, and Jerry C. Christofferson, appellant, natural father of the minor children and former husband of Judy K. McCann. Appellant did not consent to the adoption, and in this action respondent claimed that appellant had abandoned the children as defined by SDCL 25-6-4(2). The appeal is from a judgment granting the adoption in which appellant contends that the evidence was insufficient to establish abandonment. We affirm.
The evidence indicates that appellant remarried shortly after the divorce on May 11, 1972, and assumed full support of his new wife and her three children. After the divorce was granted, appellant made payments of support on two occasions: (1) Payments were made after the June 9, 1972 hearing to avoid a sixty-day jail sentence for contempt, and (2) Further payments were made after appellant was arrested in the State of Montana under a reciprocal warrant. Total payments made by the appellant from May 1972 until October 1973, were approximately $600 pursuant to the contempt order and the reciprocal support order. At the time of the adoption hearing on October 17, 1973, appellant was in arrears in his child support in the approximate amount of $3,620. Evidence was obtained from the appellant that he was gainfully employed during most of this period, having paid tax on an income of $7,000 in 1972; that he had been a partner in a business in Rapid City from March 1973, to the date of hearing, during which time his earnings were $700 per month; and, further, that he was entitled to one-half of $15,000 of undivided profits in the firm.
[289]*289After the contempt hearings in Brookings on June 9, 1972, appellant left the area and the state without advising anyone of his whereabouts, and it was only after considerable investigation and the filing of a reciprocal support action that he was found in the State of Montana.
Following the divorce in May 1972, the appellant only visited the children once — on October 15, 1973 — at about the time the adoption hearing was held. During this period he wrote one letter and one card to the children; talked to them by phone once and sent gifts on Christmas and birthdays (one birthday gift was a check for $25 which was returned marked, “ACCOUNT CLOSED”).
The appellant testified that he loved his children and had never intended to abandon them; that he did not pay child support because of his erratic employment and because of the fact that he had remarried on August 31, 1972, and had assumed the full obligation of supporting his new wife and her three children; that he had communications with or pertaining to his children, but that he had been denied visitation rights by Judy McCann; that he had left South Dakota without leaving a forwarding address to avoid harassment in his employment by Judy McCann; and, finally, that Judy McCann had informed him on some daté in 1973 that she was not seeking any further support from him.
Judy McCann denied that she had ever interfered with visitation rights in Brookings, but that she had objected to his taking the children to Montana. She also denied that she had ever harassed appellant in his employment, or that she had ever agreed to forego support for the children. She did testify that following her association with Michael McCann she had told appellant that she would take no further court action to collect support. Judy McCann did indicate that appellant had sent a card and a letter and that he had sent gifts at Christmas and on birthdays. Evidence of appellant’s considerable earnings during the period in question was adduced under cross-examination.
We last dealt with the question of abandonment under this statute in Mastrovich v. Mavric, 1939, 66 S.D. 577, 287 N.W. 97. This standard was established:
[290]*290“To constitute abandonment under our code it must appear by clear and convincing evidence that there has been by the parents a giving-up or total desertion of the minor child. In other words, there must be shown an absolute relinquishment of the custody and control of the minor and thus the laying aside by the parents of all care for it.” 66 S.D. at 579. 287 N.W. at 97-98.
This case also established that abandonment was a question of fact for the trial court. Appellant here questions the legal sufficiency of the evidence and principally argues that there was no showing of intent to abandon on his part. We agree that it is necessary to establish an intent to abandon and to relinquish parental obligations. An involuntary inability to assume a parental role will not constitute abandonment. Moody v. Voorhies, 1970, 257 Or. 105, 475 P.2d 579. Most courts have interpreted similar statutes as requiring an intentional abandonment. In re Adoption of Snellgrose, 1967, 425 Pa. 258, 228 A.2d 764; Pitzenberger v. Schnack, 1932, 215 Iowa 466, 245 N.W. 713; In re Anderson, 1933, 189 Minn. 85, 248 N.W. 657. As is generally the case, intent to abandon may be inferred from conduct. Moreau v. Buchholz, 1951, 124 Colo. 302, 236 P.2d 540.
Substantial evidence of appellant’s failure to support his children, although gainfully employed, appears in this record. While this failure does not conclusively establish abandonment, it is a strong factor in such a determination. Petition of Martensen, 1954, 129 Colo. 125, 267 P.2d 658. Other factors include a parent’s presence, love, care and affection. In re Asterbloom’s Adoption, 1946, 63 Nev. 190, 165 P.2d 157.
Although it was undisputed at trial that appellant did make some few contacts with his children, this fact does not in itself negate a finding of abandonment. In a remarkably similar case, the Supreme Court of Nevada upheld the trial court’s finding of abandonment under a statute which required an absence of communication for a period, of one year. In Re Carson, 1960, 76 Nev. 446, 357 P.2d 591. The court stated that:
“Although appellant’s earnings in 1957 amounted to $6,000 and in 1958 to $5,000 and in 1959 to $3,500 to [291]*291the date of the trial, he contributed nothing to the child’s support and his gifts to the child were limited to those made on the child’s birthday and on Christmas. He made no real attempt to insist upon or to enforce his rights of visitation under the divorce decree. It is true that he sought to prove that his attempts to communicate with his infant son were frustrated by respondent and by her attorney and by her accountant, and we are urged to accept this proof. This, of course, we cannot do in view of the court’s findings.” 357 P.2d at 593.
In the present case, the only contributions for the support of the children were made pursuant to court order, and then in a minimal amount over the period in question.
From the facts as herein stated, the trial court found that appellant had abandoned his children from May 1972 to October 1973, as defined by SDCL 25-6-4(2), making his consent unnecessary in the adoption of the minor children. We cannot conclude that the court’s findings of fact were clearly erroneous under SDCL 15-6-52(a). The trial court had the right to resolve conflicting facts at the trial, and the court’s findings are supported by substantial and convincing evidence. Further, we can find no error in the trial court’s conclusion that there had been abandonment for a period of more than one year under SDCL 25-6-4(2) as interpreted by the cases above cited.
At the time this adoption action was commenced, the custody of the children was subject to a continuing order of the Circuit Court of Brookings County under SDCL 25-4-45.
Under SDCL 25-6-6, “[t]he county (district county) court is vested with the jurisdiction to hear, try, and determine all matters relative to the adoption of children * * It follows that this exclusive jurisdiction gives the district county court the power to grant a final judgment of adoption. Once this judgment is entered by a court of competent jurisdiction it can be taken to the circuit court or any other court and enforced. This is a change in circumstances that will require the action of the circuit court in its continuing jurisdiction in a divorce case to vacate or modify the decree as to custody, care and education of a minor [292]*292child. The adoptive father under SDCL 25-6-12 must sign an agreement to the effect that “the child adopted shall be treated in all respects as his own lawful child * * *.” SDCL 25-6-17 provides:
“The natural parents of an adopted child are from the time of the adoption, relieved of all parental duties towards, and of all responsibility for the child so adopted, and have no right over it, except in cases where a natural parent consents to the adoption of his or her child by the child’s stepfather or stepmother who is the present spouse of the natural parent.”
As in the case where there is a death of a minor child or of the putative father, this adoption by a stepfather of a minor child who was formerly the subject of a divorce decree would automatically require the vacation of any rights or duties of the putative father under the divorce decree. While this issue was not raised in the present case and SDCL 25-6-17 seems to take care of the matter, the parties may wish to clear the record in the circuit court upon the filing of the decree of adoption.
Affirmed.
WINANS and DOYLE, JJ., concur.
WOLLMAN and COLER, JJ., dissent.