In re D.W.H.

457 So. 2d 137
CourtLouisiana Court of Appeal
DecidedSeptember 26, 1984
DocketNo. 16435-CAJ
StatusPublished
Cited by7 cases

This text of 457 So. 2d 137 (In re D.W.H.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re D.W.H., 457 So. 2d 137 (La. Ct. App. 1984).

Opinion

HALL, Judge.

This appeal involves a stepparent adoption proceeding in which a father challenges the district court’s granting of the adoption of his nine-year-old son by the stepfather. Issues on appeal arise out of two findings of the court. The court found that the necessity of the father’s consent to the adoption was vitiated under LSA-R.S. 9:422.1 by his failure to comply with a court order of support for a period of one year. The court further found that the best interests of the child were served by granting the adoption. Based on our evaluation of the latter issue we reverse.

The Facts

The child’s parents were divorced on December 15, 1976. Custody was awarded to the father due to the mother’s lifestyle and conduct. The mother remarried in 1977 and the father voluntarily surrendered custody to her in 1979. On September 9, 1980, the mother obtained legal custody and the father was ordered to pay $100 per month in child support. At that time the father, as well as the mother, child, and stepfather, resided in the Monroe area. No support payments were made until October 28, 1981 — one month after the mother, child, and stepfather moved to Atlanta, Georgia in order for the mother and stepfather to attend the Salvation Army’s ministerial school. On that date the father sent the mother a check for $100 which she did not cash. On January 18, 1982, the stepfather petitioned to adopt the child. In June 1982, the family moved to Montgomery, Alabama where they resided at the time of the adoption hearing in November 1983. A formal judgment granting the adoption was signed on February 2, 1984.

Issue No. 1:

When the stepparent’s spouse is the legitimate parent of the child, and has custody of the child, LSA-R.S. 9:422.1 provides that the consent of the other legitimate parent is not needed for the stepparent to adopt, if the other legitimate parent has failed to comply with a court order of support for one year. Here the record shows that while appellant was ordered to pay $100 per month in child support on September 9, 1980, no payment was tendered until October 28, 1981. Although failure to support may be excused by just cause, see Adoption of Rapp, 348 So.2d 107 (La.App. 4th Cir.1977), appellant has the burden of proving just cause. Berry v. Berryhill, 330 So.2d 405 (La.App. 3d Cir.1976).

Appellant contends that the mother refused constant offers of monetary support during the one-year period, but told appellant he could buy clothes and other items and give them to the child. The mother denied this contention. The district court judge, although of the opinion that the [139]*139stepfather and mother planned and contrived the setting for the adoption, nevertheless found that the father failed to sustain his burden of proving the mother relieved him of his support obligation. The record indicates the trial judge’s findings are reasonable; these findings will not be disturbed by this court. Pierre v. Landry, 341 So.2d 891 (La.1977).

Appellant further contends that the clothing and other items given to the son should be considered in support of the son. However, the support obligation may only be met by making payments to the custodial parent. In re Jones, 337 So.2d 283 (La.App. 2d Cir.1976). As stated in Rodriguez v. Rodriguez, 245 So.2d 765, 769 (La.App. 4th Cir.1971):

“The court will not allow itself to be put into the position of an accountant, computing every donation made by the father to his son. His obligation is to support the minor child by making payments to the mother, and it is only by so complying that he may fulfill this obligation.”

Neither the appellant’s contention that his support obligation was relieved, nor his contention that his support obligation was otherwise fulfilled can be considered just cause for noneompliance with the support order.

Appellant submits that just cause should be found in the present case because of the factual similarities with In re Ragas, 393 So.2d 925 (La.App. 4th Cir.1981). In Ragas the father was found to have just cause for failure to support because of his physical condition and the mother’s refusal to communicate or accept his attempts to contribute small sums of money. The sums offered were small due to the father’s serious physical problems, including epilepsy, that precluded any lasting employment. In the present case appellant has also experienced physical problems that have affected his ability to earn a living. Appellant testified that he suffered a spinal injury in March 1981, and was unable to work since that time. He underwent two operations as a result of his injury—the first prior to the time of his son’s move to Atlanta. Further degeneration of his spine indicated the need for a third surgery, a spinal fusion, but arthritis made the benefits of such surgery doubtful. However, unlike the Ragas case, appellant’s testimony indicates no physical problems existed during the greater portion of the one-year period in question, and further indicates no inability to make payments during the remainder of the year. On the contrary, appellant testified he had offered payments but had been refused. While appellant’s injuries appear serious and explain his inability to work or travel out of state to see his son, they do not excuse his lack of support. Furthermore, the mother did not refuse to communicate with the father, and although she did refuse to cash the check of October 28, that check was not sent until after the one-year period had expired. Therefore, the pertinent facts of Ragas are clearly distinguishable from the present case.

We conclude that the trial judge was correct in finding appellant failed to comply with the child support order over a one-year period, that no just cause existed for this failure, and that appellant’s consent to the adoption was unnecessary.

Issue No. 2:

The Louisiana Supreme Court in Adoption of Latiolais, 384 So.2d 377 (La.1980), held that LSA-R.S. 9:422.1 applies only to the narrow question of parental consent to a minor’s adoption, and does not set the criteria for deciding whether an adoption should be granted. Instead, the best interest of the child is the major standard to which a court should look when determining whether to grant an adoption. In Latiolais, despite the father’s failure to pay court-ordered child support for a period in excess of one year, the application of the best interest of the child standard resulted in the denial of a stepparent adoption. This court also has found the best interest of the child sometimes better served by disallowing stepparent adoptions in cases where the father has failed to comply with his support obligation. In re Glass, Applying for Adoption, 424 So.2d 383 (La.App. [140]*1402d Cir.1982); In re Hinton, 390 So.2d 972 (La.App. 2d Cir.1980).

Although each adoption case must be determined on its own facts, both the Glass and Hinton cases, supra, provide guidance as to the proper factors to be considered, and the proper focus to be taken in determining the best interest of the child. In Hinton this court noted two interrelated factors to be considered in determining the best interest of the child — the seriousness and finality of the severing of the relationship between parent and child, and the importance and benefit to the child of a continued relationship with a parent. Similarly, in Glass

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457 So. 2d 137, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-dwh-lactapp-1984.