Matter of Adoption of CJH

778 P.2d 124, 1989 Wyo. LEXIS 191, 1989 WL 92223
CourtWyoming Supreme Court
DecidedAugust 18, 1989
DocketC-89-1
StatusPublished
Cited by15 cases

This text of 778 P.2d 124 (Matter of Adoption of CJH) is published on Counsel Stack Legal Research, covering Wyoming Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Matter of Adoption of CJH, 778 P.2d 124, 1989 Wyo. LEXIS 191, 1989 WL 92223 (Wyo. 1989).

Opinion

THOMAS, Justice.

The sole question raised in this case is whether the district court may order an adoption in the absence of a written consent by the child’s father on the ground of willful failure to contribute to the support of the child when the father claims the failure to support was justified by a denial of the father’s visitation privileges. The district court, following a hearing, found that the father of two minor children had willfully failed to contribute to the support of the children for a period exceeding one year immediately prior to the filing of the petition for adoption in accordance with § 1-22-110, W.S.1977 (June 1988 Repl.). 1 *125 This appeal is taken from the order of the court that granted the right to proceed with the adoption and terminated the parental rights of the natural father in accordance with § l-22-110(a)(iv). That order became final upon the entry of the Final Decree of Adoption. We hold that the denial of visitation privileges does not justify the willful failure to contribute to the support of the children, and the action of the district court in ordering that the adoption proceeding go forward and in entering the Final Decree of Adoption is affirmed.

In his Brief of Appellant, the father of the two children, a little boy and a little girl, sets forth this issue:

“Where the Appellant failed to provide child support for his two minor children for a period of one year preceding the filing of an adoption petition, is the denial of visitation and custody a sufficient ‘justifiable excuse’ so as to preclude a finding of willful failure to provide support for one year and thereby requiring the Appellant’s consent in the adoption proceeding.”

In the Brief of Appellees, the issue is stated differently as:

“Was there sufficient evidence to support the trial court’s finding that Appellant willfully failed to contribute to the support of the parties’ minor children for a period of one year immediately prior to the filing of the Petition for Adoption, and that Appellant’s failure was deliberate and voluntary, was done consciously and intentionally and without justifiable excuse, and not due to oversight or lack of means to make contributions.”

The father and the mother of the children were divorced in September, 1984. Primary custody was awarded to the mother, subject to the father’s visitation rights, and the father was required to pay child support. Not long after the mother remarried, the children’s father requested that they be transported to Arizona to visit him. He refused, however, to give the mother an address or telephone number where he could be contacted and, because of that and his earlier suggestions that he might take the children and simply disappear, the mother did not send the children for the summer visitation. The father then withheld the payment of support.

In the spring of 1987, the mother and the father attempted to resolve their differences by an agreement that the district court approved in an order entered March 11, 1987. Pursuant to that agreement, the father was to pay $200 each month in current child support and $50 each month on his $1,000 support arrearage. With respect to visitation, the agreement established a schedule which gave the father custody of the children on alternate weekends, on alternating Christmas, Easter, and Thanksgiving holidays, and between June 10 and August 10 of each year. Despite the agreement, the mpther continued to deny visitation, and the father continued to withhold support payments which was the situation as of the time of the filing of the petition for adoption.

On May 4, 1988, the mother and her husband filed their adoption petition in the district court in which they alleged that the father had failed to provide for the children’s support. That failure was asserted as a ground for not requiring the father’s consent to the adoption pursuant to § l-22-110(a)(iv). The mother and her husband asked the court to enter an order terminating the father’s parental rights and permitting the mother and her husband to proceed with the adoption of the two children.

By his testimony at trial, the father established that he considered himself able to pay support at all times relevant to the petition and that he had failed to do so only *126 because he had been denied visitation. He testified that, in January of 1987, he earned $500 per month plus housing in his employment and that, in April and May of that same year, he had earned $400 per month plus housing. From September of 1987 through April of 1988, he had earned in excess of $2,500 per month and, during this entire period, he received additional sums from an annuity that amounted to more than $1,500 per month. In the aggregate, in the twelve months immediately preceding the filing of the petition for the adoption, his income had exceeded $38,400. He agreed that he had paid no child support since July of 1986.

Relying upon these facts, the district court, in its order of January 10, 1989, granted the relief requested by the petitioners. The order incorporated by reference the decision letter that the district judge had written, in which the court stated:

“The above matter having come before the Court for trial, the Court finds by clear and convincing evidence that the natural father of the minor children has willfully failed to contribute to the support of the children for a period exceeding one year immediately prior to the filing of the petition for adoption, that the petitioning step-father is a fit and proper person to adopt the children, that the children have resided with the petitioners since July of 1986, and that it would be in the best interests of the children to grant the relief requested in the petition for adoption.”

While that order was an interlocutory one, it became final upon the entry of the Final Decree of Adoption on January 24, 1989, and the Notice of Appeal, filed January 23, 1989, became effective on January 24, in accordance with Rule 2.01, W.R.A.P.

The appellees suggest that there is a question of the sufficiency of the evidence to sustain the finding by the district court that the father willfully failed to contribute to the support of the children for a period exceeding one year. The father has posed no challenge to the sufficiency of the evidence to sustain factual findings by the district court. His own testimony provided sufficient evidence of his ability to pay support and his willful failure to do so. Had the father raised a question regarding the sufficiency of the evidence, Broyles v. Broyles, 711 P.2d 1119 (Wyo.1985), would require us to examine that evidence, including his testimony, in the light most favorable to the appellees, resolving all conflicts in the trial testimony and exhibits in their favor. Under that standard, we would not be able to adjust the finding of the court. In reviewing factual determinations in a contested adoption case, our rule is that the court can be reversed only if it committed a clear abuse of its discretion; that is, if it could not reasonably have concluded as it did. Matter of Adoption of GSD, 716 P.2d 984 (Wyo.1986);

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Bluebook (online)
778 P.2d 124, 1989 Wyo. LEXIS 191, 1989 WL 92223, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matter-of-adoption-of-cjh-wyo-1989.