In Re the Adoption of R.A.S.

679 P.2d 220, 208 Mont. 438
CourtMontana Supreme Court
DecidedMarch 25, 1984
Docket83-175
StatusPublished
Cited by14 cases

This text of 679 P.2d 220 (In Re the Adoption of R.A.S.) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re the Adoption of R.A.S., 679 P.2d 220, 208 Mont. 438 (Mo. 1984).

Opinions

MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

The natural father, W.A.S., appeals from an order of the District Court, Third Judicial District, Deer Lodge County, allowing the adoption of his minor son, R.A.S., without the consent of the natural father. We affirm.

The natural father and the natural mother were married on August 9,1975. A minor son. R.A.S., was born as issue of the marriage on November 23, 1977.

The marriage between the natural father and mother was dissolved on March 16,1979 in the Thirteenth Judicial District, Yellowstone County. Custody of the child was awarded to his mother, with his natural father being or[440]*440dered to pay $150 per month child support through the office of the Clerk of Court, Yellowstone County. The parties voluntarily vacated the requirement to pay child support through the Clerk of Court and, instead, support payments were made directly to the natural mother. The adoptive father W.K.D., and the natural mother were married on April 25, 1981.

The child support payments were due on the first day of every month. The appellant, natural father, paid the child support each month from the time of the divorce through the month of June, 1981. No support payment was made in July, 1981. In August, 1981, the appellant made an additional $150 child support payment which was credited to his obligation for July, 1981 that had not been timely paid. Thereafter, on or about December 20, 1981, a payment of $450 was made which was credited to back support payments due for August, September and October of 1981. No further support payments were received by the natural mother prior to the adoptive father’s filing of a petition for the adoption of the child on December 2, 1982. In addition, no child support payments have been made since the filing of the petition for adoption.

At trial, the District Court determined that during the period from November, 1981 through November, 1982, the appellant, natural father, was gainfully employed and financially capable of making the required child support payments but voluntarily chose not to do so. As a result, the District Court held that the consent of the appellant to the petition for adoption was not required pursuant to the provisions of Section 40-8-lll(l)(a)(v), MCA, and the best interests of the child would be served by granting the petition.

In pertinent part, Section 40-8-lll(l)(a)(v), MCA, provides:

“(1) An adoption of a child may be decreed when there have been filed written consents to adoption executed by:

“(a) both parents, if living, or the surviving parent of a [441]*441child, provided that consent is not required from a father or mother:

“(v) if it is proven to the satisfaction of the court that the father or mother, if able, has not contributed to the support of the child during a period of 1 year before the filing of a petition for adoption . .

At trial, the appellant argued that the $450 payment made on December 20, 1981, was made during the period of one year before the filing of the petition on December 2, 1982, and therefore his consent to the adoption was necessary. However, the District Court held that the word “support” indicates a continued monetary contribution on a specified basis. Thus, appellant’s support obligation was not made on a continuing basis and by giving credit to the appellant for the $450 payment made on December 20, 1981, the District Court determined that no support was made “during” the period of one year before the filing of the petition for adoption. From that determination, the natural father appeals.

Appellant raises one issue on appeal: Did the District Court err in holding that the consent of the appellant was not necessary in granting the petition for adoption?

Appellant argues that he contributed to the support of the child “during” the-one year period before the filing of the petition for adoption was filed December 3,1982. Appellant points out that child support in the sum of $450 was paid on or about December 20, 1981. Appellant asserts that Section 40-8-lll(l)(a)(v), MCA, must be strictly construed in favor of the appellant and a literal construction of the statute compels the Court to reverse the District Court because appellant made a payment within one year prior to the filing of the petition of adoption.

Respondent maintains that if the argument of the appellant is accepted, a noncustodial parent could defeat the adoption of his natural child by merely making a portion of one payment on the same date each year. Thus, respondent asserts, to allow the statute to be interpreted and construed [442]*442in this manner would be ludicrous and contrary to legislative intent.

The central issue in this case is whether the appellant has not contributed to the support of the minor child during a period of one year prior to the filing of the petition for adoption.

In adoption cases the initial threshold requirement is statutory compliance. In the Matter of the Adoption of Smigaj (1977), 171 Mont. 537, 560 P.2d 141. Thus, Section 40-8-lll(l)(a)(v), MCA, sets forth a two-pronged test to determine whether the natural parent’s consent is required for adoption. First, it must be determined whether the nonconsenting parent has not contributed to the support of the child during a period of one year prior to the filing of the petition for adoption and, second, it must be determined whether the nonconsenting parent had the ability to contribute to the child’s support. In the Matter of the Adoption of S.L.R. (Mont. 1982), [196 Mont. 141,] 640 P.2d 886, 39 St.Rep. 156. The burden rests on the petitioner to show that the requirements of Section 40-8-111(1) (a) (v), MCA, have been met and, because of the harshness of permanently terminating parental rights, strict compliance with the statute is required. In the Matter of Challeen (1977), 172 Mont. 362, 563 P.2d 1120; In re Adoption of Biery (1974), 164 Mont. 353, 522 P.2d 1377.

In the present case, appellant admitted that he had the ability to make the required child support payments. The second phrase of the statute, “. . . has not contributed to the support of the child during a period of one year before the filing of the petition. . .,” precipitates the present dispute. There is no dispute that the support of the child was paid to the month of August, 1981. It is further without dispute that a payment of $450, which brought the payments up to November 1, 1981, was made on or about December 21, 1981, some eleven months and eighteen days before the filing of the petition for adoption. The appellant contends the payment was made “. . . during a period of one year [443]*443before the filing of the petition for adoption . .

Our basic policy in adoption cases has been . . a statute should not be interpreted in favor of a father who seeks the benefit of parental rights but shuns the burden of parental obligations.” In Re Burton’s Adoption (1956), 146 Cal.App.2d 125, 305 P.2d 185, 191; cited with approval,

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In Re the Adoption of R.A.S.
679 P.2d 220 (Montana Supreme Court, 1984)

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Bluebook (online)
679 P.2d 220, 208 Mont. 438, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-adoption-of-ras-mont-1984.