Dolbow v. Beamer

1997 OK CIV APP 30, 942 P.2d 255, 68 O.B.A.J. 2245, 1997 Okla. Civ. App. LEXIS 33
CourtCourt of Civil Appeals of Oklahoma
DecidedMay 20, 1997
DocketNo. 86031
StatusPublished

This text of 1997 OK CIV APP 30 (Dolbow v. Beamer) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dolbow v. Beamer, 1997 OK CIV APP 30, 942 P.2d 255, 68 O.B.A.J. 2245, 1997 Okla. Civ. App. LEXIS 33 (Okla. Ct. App. 1997).

Opinion

MEMORANDUM OPINION

JOPLIN, Judge:

¶ 1 Appellants Thomas E. Dolbow, II, (Father) and Elisha Dolbow (Wife) seek review of the trial court’s order holding Appellants not entitled to adopt Appellant Father’s [257]*257biological child, B.N.D., without the consent of B.N.D.’s biological mother, Appellee Dolly Dolbow Beamer (Mother). In this appeal, Appellants assert that Mother’s failure to pay child support pursuant to Mother and Father’s divorce decree rendered unnecessary her consent to adoption of B.N.D. by Father’s new wife, and that in any event, the trial court’s failure to appoint independent counsel for B.N.D. rendered the entire proceeding fundamentally flawed necessitating reversal. For the reasons set out below, however, we find no error in the proceedings and affirm the trial court.

¶2 Father and Mother married in 1989, and of the marriage, one child, B.N.D., issued. Father and Mother subsequently divorced in April 1992 in Kansas. Pursuant to the Kansas decree (which adopted and incorporated the parties’ joint custody agreement), Father retained physical custody of B.N.D., with Mother granted visitation and ordered to pay $100.00 per month child support. Mother paid child support as ordered and exercised visitation with B.N.D. until the summer of 1993 when Father, his present wife, and B.N.D. moved to Oklahoma.

f 3 On May 13, 1995, Appellants filed the present action alleging Mother had willfully failed to pay the court ordered child support for the preceding 12 months, and seeking an adjudication of B.N.D.’s eligibility for adoption without Mother’s consent. Appellants attempted service of notice on Mother in care of Mother’s parents in Kansas, but Mother testified she did not receive that notice. Appellants then attempted service on Mother at the Kansas residence where she had continuously resided; however, Mother’s brother accepted service and it is controverted whether Mother received this notice. Finally, Appellants affected personal service of notice to Mother on May 24, 1995 through the Cowley County, Kansas sheriffs office at Mother’s residence.

¶4 However, two days before personal service of Appellants’ notice, Mother filed in the Kansas court an application for a voluntary income withholding order for the benefit of B.N.D., and an order providing therefor went into effect the following day. On or about the same time, Mother filed an application for contempt citation against Father, alleging Father’s denial of Mother’s visitation rights. On June 14, 1995, the Kansas Court entered an order adopting the parties’ agreement for visitation between Mother and B.N.D. to begin two days later. The Kansas trial court continued hearing on Mother’s request for modification of the visitation order as set out in the decree of divorce.

¶ 5 The following month, the trial court below heard Appellants’ application for B.N.D.’s eligibility for adoption without Mother’s consent. The trial court properly bifurcated the proceedings1 as required by statute, addressing in the first stage the sole issue of whether Mother’s failure to pay child support was willful.

¶ 6 Mother testified that for the two years since Father moved B.N.D. to Oklahoma, Mother experienced great difficulty contacting Father; that she had visitation with B.N.D. on only one occasion; that she did not have Father’s phone number nor his rural address, and that she sent B.N.D. a Christmas present in care of Father’s new in-laws. Mother also testified she had been confined to bed for the better part of two pregnancies after her divorce from Father, prohibiting Mother from working and resulting in a temporary inability to pay child support. It is uncontroverted that Mother at all times lived at the same residence in Kansas, that her parents lived in the same town, and that Mother had been estranged from her parents since the divorce.

¶ 7 For their part, Appellants testified Mother failed to pay child support after Appellants moved to Oklahoma; that Mother knew where Appellants lived; that Appellants had two additional two children; that Father’s present wife considered B.N.D. to be “their” child; and that Mother sent B.N.D. a Christmas present to Appellants’ home. Appellants admitted B.N.D. visited Mother’s parents on several occasions in the same town in which Mother resided but did [258]*258not inform Mother of the visits nor of telephone calls between B.N.D. and her maternal grandparents. Appellants denied knowing where Mother resided or Mother’s telephone number.

¶ 8 At the conclusion of the first stage proceedings, the trial court determined Appellants “failed to meet their burden of proof’ to show that Mother’s failure to pay had been willful and, accordingly, determined B.N.D. not eligible for adoption without Mother’s consent. Appellants appeal.

¶ 9 This appeal stands submitted on Appellants’ brief only.2 It is well-settled that where no answer brief is filed, and the omission is unexcused, the Court is under no duty to search the record for some theory to sustain the trial court’s judgment, and on appeal will ordinarily, where the brief in chief is reasonably supportive of the allegations of error, reverse the judgment with directions. Sneed v. Sneed, 585 P.2d 1363 (Okla.1978); Harvey v. Hall, 471 P.2d 911 (Okla.1970). However, it is equally well-settled that reversal is never automatic on an appellee’s failure to file an answer brief. Hamid v. Sew Original, 1982 OK 46, 645 P.2d 496. Considering the importance of the issues here raised, we therefore proceed to address the merits of Appellants’ arguments.

¶ 10 In their first and second propositions of error, Appellants challenge the trial court’s finding that Appellants failed to meet their burden of proof on the issue of Mother’s alleged willful failure to pay child support. In that regard, consent of a parent to the adoption of a biological child is not required from:

2. A parent who, for a period of twelve (12) months immediately preceding the filing of a petition for adoption of a child, has willfully failed, refused, or neglected to contribute to the support of such child:
a. in substantial compliance with a support provision contained in a decree of divorce ..., or
b. according to such parent’s financial ability to contribute to such child’s support if no provision for support is provided in a decree of divorce....

10 O.S.1991 § 60.6. A parent’s willful failure to pay support must be shown by clear and convincing evidence, and the party seeking adoption without consent of the supporting parent bears the burden of proof. Merrell v. Merrell, 1985 OK 107, 712 P.2d 35. Stated otherwise, “[bjeeause a declaration that a child is eligible for adoption without parental consent is itself a final and appealable order, and one which subjects the affected parent to the possibility of having all ties severed, we find the interest involved in such a hearing to rise to the magnitude requiring proof which is clear and convincing.” Merrell, 1985 OK 107, 712 P.2d at 39.

¶ 11 In the present case, the record reflects that Mother paid child support and exercised visitation with B.N.D. prior to Father’s move from Kansas to Oklahoma in 1993. Mother testified that she could not pay the court-ordered child support because she could not work for an extended period due to health problems.

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Related

Merrell v. Merrell
1985 OK 107 (Supreme Court of Oklahoma, 1985)
Hamid v. Sew Original
1982 OK 46 (Supreme Court of Oklahoma, 1982)
In Re the Adoption of Darren Todd H.
1980 OK 119 (Supreme Court of Oklahoma, 1980)
In Re Adoption of Frf
870 P.2d 799 (Court of Civil Appeals of Oklahoma, 1994)
Adoption of J.R.M. v. Madden
1995 OK 79 (Supreme Court of Oklahoma, 1995)
Harvey v. Hall
1970 OK 92 (Supreme Court of Oklahoma, 1970)
Matter of Adoption of DRW
875 P.2d 433 (Court of Civil Appeals of Oklahoma, 1994)
Sneed v. Sneed
1978 OK 138 (Supreme Court of Oklahoma, 1978)
Matter of Guardianship of S.A.W.
1993 OK 95 (Supreme Court of Oklahoma, 1993)
Foote v. Foote
1994 OK CIV APP 9 (Court of Civil Appeals of Oklahoma, 1994)
Lansdale v. Hammond
1994 OK CIV APP 10 (Court of Civil Appeals of Oklahoma, 1994)

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Bluebook (online)
1997 OK CIV APP 30, 942 P.2d 255, 68 O.B.A.J. 2245, 1997 Okla. Civ. App. LEXIS 33, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dolbow-v-beamer-oklacivapp-1997.