Adoption of Armstrong, In re, 5618

• Decision Date: 11 September 1963
• Docket Number: No. 5618,5618
• Citation: 371 S.W.2d 407,394 S.W.2d 552
• Parties: In re ADOPTION OF Molly Page ARMSTRONG, a Minor.
• Court: Texas Court of Appeals

Page 407

371 S.W.2d 407

In re ADOPTION OF Molly Page ARMSTRONG, a Minor.

No. 5618.

Court of Civil Appeals of Texas, El Paso.

Sept. 11, 1963.

Rehearing Denied Oct. 16, 1963.

Opinion Withdrawn, 394 S.W.2d 552.

Morgan & Boling, El Paso, for appellant.

W. O. Craft, El Paso, for appellee.

CLAYTON, Justice.

This is an appeal from an order of the 120th District Court of El Paso County, Texas overruling a motion for new trial and affirming the decree of the court which granted a petition for adoption of the minor child, Molly Page Armstrong, then between four and five years old, by the petitioner, Salvatore E. Manzo, in which petition his wife, Alice Flournoy Davis Manzo, the natural mother of the minor, joined. The motion for new trial was filed by appellant R. Wright Armstrong, the natural father of the child. Appellant and appellee, Alice Davis Manzo (formerly Alice Flournoy Davis Armstrong) were divorced by decree of the 96th District Court of Tarrant County, Texas on November 6, 1959. Custody of the minor child of the parties was awarded to the mother, with visiting privileges granted to the father. The divorce decree contained the provision that the community and separate property of the parties be distributed by agreement of the parties, and the further provision that the father was to pay into the Child Support office of Tarrant County 'the sum of $50.00 per month, beginning November 16th, 1959, and continuing thereafter on the 16th day of each succeeding month until further order of this court, or until said child shall reach 18 years of age.' Appellant made one payment of $50.00 into the Child Support office in November of 1959 and in February of 1960 he made a payment of $150.00 into the office. While it may perhaps be said that there is some ambiguity in the trial court's support order as to the application of the $50.00 monthly payments when made, it is our opinion that the payment in November, 1959, was for the month of November, and the $150.00 payment in February, 1960, was for the months of December, 1959, January, 1960, and February, 1960. There were no further payments into the Child Support office. The appellant here contends that these two payments covered the period from November 16, 1959 to March 16, 1960. The verified petition for adoption was filed on March 12, 1962 and alleged that:

'7. Written consent of the natural father R. W. ARMSTRONG, JR., to the adoption herein sought is not necessary upon grounds that the said father has not contributed to the support of said minor child commensurate with his ability to do so far a period in excess of two (2) years, and the Judge of a Juvenile Court of El Paso County, Texas, to-wit: Judge Mulcahy, Judge of the 41st Court, has consented in writing to said adoption under provisions of Section 6, Article 46A, Texas Civil Statutes.'

Appellant's first point cites error of the court in not rendering judgment for appellant setting aside the adoption because there is no evidence that appellant failed to contribute substantially to the support of the child for a two-year period prior to the filing of the petition for adoption, commensurate with his financial ability, or that such finding was against the great weight and preponderance of the evidence. Appellant states the child support having been paid until March 16, 1960, that for at least four days of the alleged two-year period the appellant had contributed support to his daughter. However, our interpretation of the court's support order, as indicated above, is that support payments into the Child Support office covered a period of time through the month of February, 1960, only, and that the adoption petition was filed twelve days thereafter.

But appellant asserts that he had made other payments and contributions in addition to those made to the Child Support office, which should be considered child support payments. After the divorce, the minor child on occasions visited her father and grandparents, with whom her father resided, in Fort Worth. Appellant states that on one of these occasional visits, in the summer of 1961, he 'bought her some clothes' and 'bought her lots of toys' and took her to a production of the Wizard of Oz, the total of these expenditures running 'in the neighborhood of $75.00.' The following Christmas, on another visit, he 'took her to a clothing store and purchased three dresses and a pursue for her for Christmas' at a cost of $50.00.

In February of 1960, after the divorce from appellant was granted appellee Alice Davis Manzo in November, 1959, their house was sold for an amount slightly in excess of a thousand dollars. Appellant contends that it was his understanding that the proceeds from this sale were to be divided between the parties on a fifty-fifty basis but that he directed that the majority of the money be sent to his ex-wife 'for the benefit of the child'. He testified that Mrs. Manzo received somewhere in the neighborhood of $875.00 and that he received something like $150.00 or $160.00. However, there was introduced in evidence a property settlement agreement executed by the parties before the divorce and reaffirmed and ratified by the parties after the divorce which contains the following paragraph:

'During their marriage, the parties occupied as their home the residence located at 6853 Middle Road, Fort Worth, Texas. Two Thousand Five Hundred Dollars ($2,500.00) of the down payment for such property was paid out of the separate funds of Flournoy D. Armstrong. In the event that a divorce be granted in the above mentioned suit, such property shall be sold within a reasonable time for the best available offer, taking into consideration the condition of the real estate market, and the net proceeds, if any, therefrom shall be pro rated between the parties proportionate to the separate interest of Flournoy D. Armstrong therein and the community interest of the parties therein. The parties hereto shall execute any instrument necessary or desirable to consumate such sale.'

This provision certainly seems to be at variance with, and refutes, appellant's claimed understanding as to the equal division of the proceeds of the sale of the home, and that any part of his share of these proceeds was to be considered a contribution by him to child support.

During the period of time after the divorce and up until the date of filing of the adoption petition the appellant had been, on various occasions, ill, unable to work and in the hospital. However, according to our calculations from the evidence presented, appellant had earned during this period an amount in excess of $4,200.00, at least $3,500.00 of which was earned in the two-year period prior to the filing of the adoption petition. For the entire period since the divorce he had paid only $200.00 into the Child Support office. Appellant was a duly licensed and practicing attorney living in Fort Worth, Tarrant County, Texas where the divorce decree with child support order was entered, but he at no time made any effort to have the support order modified or to obtain credit from the Child Support office for the contributions and expenditures he claims to have made for the benefit of his minor child in addition to the two payments made directly into the office....