Waters v. Zweygardt

408 P.2d 590, 195 Kan. 614, 1965 Kan. LEXIS 445

• Court: Supreme Court of Kansas
• Decided: December 11, 1965
• Docket: 44,217
• Status: Published

Opinions

The opinion of the court was delivered by

Parker, C. J.:

This is an appeal from a judgment of adoption made without the consent of the natural father.

There is no substantial dispute as to the facts.

Arthur Philip Waters married Loretta Brinkhoff in Idalia, Colorado, in 1955. Arthur then went to Japan as a teacher in the Armed Forces. Later he was joined by Loretta. Kenji Scott Waters, the subject of the adoption proceedings, was born in Japan on June 12, 1956.

On August 8, 1957, Arthur and Loretta were divorced and by the terms of a child custody agreement Arthur was to have unlimited visitation privileges until Loretta and Kenji left Japan. However, during the short time the mother and child remained in Japan their whereabouts were concealed from Arthur. Loretta, accompanied by Kenji, returned to Idalia, Colorado, the latter part of August 1957. Subsequently, and on June 17, 1960, she married Alvin R. Zweygardt. Since that time Kenji has lived with Loretta and Alvin on a ranch in northwest Kansas, about twenty-four miles from Idalia, where he has been given the care and affection of a natural son by Alvin.

Arthur has never seen Kenji since the divorce. In fact he has made no attempt to do so. He now lives in Montclair, New Jersey, where he is a high-school biology teacher. Arthur was in Idalia in the summer of 1961. His testimony regarding that visit can be narrated as follows:

“I made no effort to see the boy while I was in Idalia nor did I ask Mr. and Mrs. Brinkhoff [the grandparents] where he was. I did not attempt to call the boy on the telephone nor did I write a letter to the boy in the last five years.. I inquired about his health and growth from my friends in the Idalia community. I didn’t go to Mrs. Brinkhoff and ask where the child was because I know what her attitude was toward me during our marriage.

“I did not see an attorney about enforcing my visitation rights but I did stop sending the amount of payment to try to enforce these rights of visitation. Loretta could have known where I was all this time by the return address on the cards and gifts I had sent to Kenji through the years. I made no real effort to find him. I didn’t attempt to visit the child because I concluded I would have not been permitted to see him anyway.”

The record is not clear as to just what amount of child support was to be paid by Arthur. One Hundred Dollars per month is mentioned. However, it appears that One Hundred Dollars was paid only one or two months. Thereafter Sixty Dollars a month was paid for a time. Subsequently payments were reduced to Fifty Dollars per month. No payments were made after July, 1961. In this connection Arthur testified:

“. . . I stopped making payments after the July payment of 1961 because I was convinced that I would never get to see my son without some court action and felt that by stopping the payments, the court action would be commenced, as a result of which I would have an opportunity to visit my son. I expected her to start some action to collect this money since she had done so before. She never commenced any such action but I did receive a notice of the pendency of this action.”

The petition of Alvin R. Zweygardt for adoption of Kenji Scott Waters, which was filed in the probate court and was consented to by his mother, Loretta, was contested by Arthur Philip Waters. Arthur’s answer to such pleading alleged in part:

“That in an effort to force the issue of this answering party’s right of visitation to his son, Kenji Scott Waters, this answering party has, in fact, deliberately ceased making payments for the support of the said Kenji Scott Waters in the desperate hope that Loretta M. Zweygardt would commence some proceeding to require him to make such payments so that by said proceeding, she could be forced to divulge the location of said child and to grant this answering party reasonable visitation rights to said child.”

After a full and complete hearing the probate court found:

“. . . that the natural father of said child, Arthur Philip Waters, has failed to assume the duties of a parent for two consecutive years last past and that during said time he has not contributed to the support of said child; . .

and entered a decree of adoption in accord with the prayer of the petition.

On appeal from the probate court’s decree the district court, after an extended hearing, made findings which, for all purposes here pertinent, may be said to be identical to the heretofore quoted findings of the probate court. Pursuant to such findings the district court entered its decree and judgment ordering that Kenji be adopted by the petitioner and that petitioner be entitled to all the rights of a parent of the child and subject to all the liabilities of that relationship.

Thereupon the natural father, Arthur Philip Waters, perfected the instant appeal wherein he contends:

“The trial court erred in failing to find the appellant had justifiable cause for his failure to contribute to the support of Kenji Scott Waters, and that appellant had therefore not failed or refused to assume the duties of a parent for more than two years preceding the commencement of the action.”

The pertinent statute, now K. S. A. 59-2102, reads in part:

“Before any minor child is adopted, consent must be given to such adoption. “(3) by one of the parents if the other has failed or refused to assume the duties of a parent for two consecutive years. . . .” (Emphasis supplied.)

Although this court has not had occasion to consider what constitutes failure to assume the duties of a parent as that term is used in the adoption statute, we have no hesitancy in concluding that the conduct of the appellant, as established by the undisputed evidence in this case, justified the findings of the two courts below.

The appellant’s contention that he withheld payment of child support in order to force the mother to give him the right of visitation does not have much force. He testified that he made no particular effort to see the child. He did not know that the right to see the child would be refused. His failure to support the child in an effort to coerce the mother was not in line with his duty as a parent.

The duty of a parent goes further than mere support. We have more in this case than failure to pay child support. A parent who over a period of five years makes no effort to see or talk to a child is in no position to claim he is fulfilling the duties of a parent.

The appellant’s defense under the facts as presented might well have appeared to the probate court and to the district court as an after thought designed to excuse the appellant for his shortcomings. In any event whether a parent has failed to assume the duties of a parent for two consecutive years rendering unnecessary consent to adoption is a question of fact. The factual question is one for determination of the trier of facts on competent evidence.

The question of fact having been determined by the probate court and the trial court on substantial competent evidence should not be disturbed by this court on appellate review.

We have not ignored the authorities cited from other jurisdictions. However, they deal with different facts and statutes containing language different from the language of the Kansas statute and are of little if any assistance.

Neither have we ignored appellant’s rather ingenious argument to the effect that the trial court erred in finding he had failed to support the child for two consecutive years. The record does not support tibe appellant’s contention. He testified positively that he stopped making payments after the July 1961 payment.

A careful examination of the entire record discloses no error which would justify a reversal of the judgment.

Therefore such judgment must be and is hereby affirmed.