Abernathy v. Baby Boy

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtHARWELL
Citation313 S.C. 27,437 S.E.2d 25
PartiesGary Wesley ABERNATHY and Cindy Moore Abernathy, Plaintiffs, v. BABY BOY, Born
Decision Date25 January 1992

Page 25

437 S.E.2d 25
313 S.C. 27
Gary Wesley ABERNATHY and Cindy Moore Abernathy, Plaintiffs,
v.
BABY BOY, Born January 25, 1992, Defendant.
Mitchell F. CALVERT, Natural Father, Third Party Plaintiff, Respondent,
v.
Gary W. ABERNATHY, Cindy Abernathy, and Julie Ayers,
Third-Party Defendants, Appellants.
No. 23911.
Supreme Court of South Carolina.
Heard June 9, 1993.
Decided Aug. 9, 1993.

Page 27

[313 S.C. 28] Randall M. Chastain, Columbia, and Sally Anna King, Charleston, for appellants Gary W. Abernathy and Cindy Abernathy.

Susan K. Dunn, Charleston, for appellant Julie Ayers.

Glenn F. McConnell and Angela Mulholland, North Charleston, for respondent.

[313 S.C. 29] Jason A. Kauser, Charleston, guardian ad Litem.

HARWELL, Chief Justice:

This is an action for termination of parental rights and adoption of a child conceived out of wedlock by respondent Mitchell F. Calvert (Mitchell) and appellant Julie Ayers (Julie). The trial judge determined that Mitchell possessed a right to refuse consent to the proposed adoption of the child, and granted custody of the child to Mitchell. We affirm.

I. FACTS

Mitchell and Julie were on active duty in the Navy when they commenced a casual sexual relationship in April 1991. Julie went on leave in June to visit her family in Oregon. Julie discovered she was pregnant and informed Mitchell by telephone that he was the father. After his initial disbelief, Mitchell begged Julie not to consider abortion, and Julie agreed.

Mitchell met Julie at the airport upon her return from leave. He offered to support her and the child. However, Mitchell had orders for sea duty, and Julie told him they would discuss the situation upon his return. Mitchell turned over his automobile and access to his bank account to Julie, telling her in a letter that the money and car were hers to use. Mitchell also offered to send Julie to college and stay home to take care of the child if she would work part-time.

While Mitchell was at sea, Julie determined that she desired no further involvement with him. She put the car in storage and withdrew only a small amount of money from the account, allegedly to pay for the storage and a fine for a speeding ticket Mitchell had asked her to take care of for him. When Mitchell returned in September, Julie rebuffed his advances and rejected his offer of marriage. Julie informed Mitchell that she had considered the idea of putting the child up for adoption, but had discarded the notion and would keep the child. Julie thereafter avoided contact with Mitchell, refused his telephone calls, and "was kind of hiding away from him."

[313 S.C. 30] Sometime after Mitchell returned from sea duty, Julie met the prospective adoptive parents, the Abernathys, through her roommate. Julie and the Abernathys agreed that the Abernathys would adopt the child. Julie remained on active duty until January 25, 1992, when the baby was born. The child was placed with the Abernathys with Julie's consent on January 27, 1992, and the adoption action was commenced on January 30, 1992. Mitchell, who by this time was stationed elsewhere, learned of the birth and of the pending adoption action, and filed a cross-complaint to intervene, contest adoption, and request custody on January 31, 1992.

A trial was held in December 1992. The Abernathys, joined by Julie, contended that Mitchell's consent to the adoption was not required because he had failed to comply with the literal requirements of S.C.Code Ann. § 20-7-1690(A)(5)(b) (Supp.1992). 1

Page 28

Mitchell claimed that he had made a good faith effort to provide support for the child, but that his attempts to do so had been frustrated by Julie's conduct. The trial judge determined that Mitchell had made diligent and bona fide offers of support which had been refused by Julie. The trial judge concluded that Mitchell's consent to the adoption was required, and that the adoption failed because Mitchell refused to give his consent. Mitchell was granted custody of the child. A petition for writ of supersedeas by this Court was denied on December 17, 1992.

On appeal, the parties stipulated and agreed that if Mitchell possesses a right to refuse consent to the adoption, then the adoption will fail as a matter of law, and Mitchell will be the fit and proper person to be awarded custody of the child.

[313 S.C. 31] II. DISCUSSION

Appellants...

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34 practice notes
  • Couple v. Girl, Opinion No. 27148
    • United States
    • United States State Supreme Court of South Carolina
    • July 26, 2012
    ...where father contributed approximately $50, cigarettes, a pillow, and a few trips to fast food restaurants); cf. Abernathy v. Baby Boy, 313 S.C. 27, 437 S.E.2d 25 (1993) (finding father demonstrated willingness to develop a full custodial relationship with his child where he attempted to pr......
  • Couple v. Baby Girl, No. 27148.
    • United States
    • United States State Supreme Court of South Carolina
    • August 22, 2012
    ...where father contributed approximately $50, cigarettes, a pillow, and a few trips to fast food restaurants); cf. Abernathy v. Baby Boy, 313 S.C. 27, 437 S.E.2d 25 (1993) (finding father demonstrated willingness to develop a full custodial relationship with his child where he attempted to pr......
  • D.W. v. J.W.B., 2140080.
    • United States
    • Alabama Court of Civil Appeals
    • October 9, 2015
    ...would be within the control of the mother. 1 Cal.4th at 847, 823 P.2d 1216 at 1235, 4 Cal.Rptr.2d at 634. See also Abernathy v. Baby Boy , 313 S.C. 27, 437 S.E.2d 25 (1993) (unwed father who had made sufficient prompt and good-faith attempts to financially support unwed mother and their unb......
  • Marriage of Gallagher, In re, No. 94-1272
    • United States
    • United States State Supreme Court of Iowa
    • October 25, 1995
    ...effort to establish relationship, thus establishing "a fundamental liberty interest in the child"); accord Abernathy v. Baby Boy, 437 S.E.2d 25, 29 Here the record is silent as to the biological father's actions toward his child. Establishing an equitable father without this knowledge may v......
  • Request a trial to view additional results
34 cases
  • Couple v. Girl, Opinion No. 27148
    • United States
    • United States State Supreme Court of South Carolina
    • July 26, 2012
    ...where father contributed approximately $50, cigarettes, a pillow, and a few trips to fast food restaurants); cf. Abernathy v. Baby Boy, 313 S.C. 27, 437 S.E.2d 25 (1993) (finding father demonstrated willingness to develop a full custodial relationship with his child where he attempted to pr......
  • Couple v. Baby Girl, No. 27148.
    • United States
    • United States State Supreme Court of South Carolina
    • August 22, 2012
    ...where father contributed approximately $50, cigarettes, a pillow, and a few trips to fast food restaurants); cf. Abernathy v. Baby Boy, 313 S.C. 27, 437 S.E.2d 25 (1993) (finding father demonstrated willingness to develop a full custodial relationship with his child where he attempted to pr......
  • D.W. v. J.W.B., 2140080.
    • United States
    • Alabama Court of Civil Appeals
    • October 9, 2015
    ...would be within the control of the mother. 1 Cal.4th at 847, 823 P.2d 1216 at 1235, 4 Cal.Rptr.2d at 634. See also Abernathy v. Baby Boy , 313 S.C. 27, 437 S.E.2d 25 (1993) (unwed father who had made sufficient prompt and good-faith attempts to financially support unwed mother and their unb......
  • Marriage of Gallagher, In re, No. 94-1272
    • United States
    • United States State Supreme Court of Iowa
    • October 25, 1995
    ...effort to establish relationship, thus establishing "a fundamental liberty interest in the child"); accord Abernathy v. Baby Boy, 437 S.E.2d 25, 29 Here the record is silent as to the biological father's actions toward his child. Establishing an equitable father without this knowledge may v......
  • Request a trial to view additional results

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