Adoption of Eddy, In re

• Decision Date: 03 August 1971
• Docket Number: No. 43197,43197
• Citation: 487 P.2d 1362
• Parties: In the Matter of the Adoption of LeAnne Marie EDDY and Karen Sue Eddy, Minor Children.
• Court: Oklahoma Supreme Court

Page 1362

487 P.2d 1362

In the Matter of the Adoption of LeAnne Marie EDDY and Karen Sue Eddy, Minor Children.

No. 43197.

Supreme Court of Oklahoma.

Aug. 3, 1971.

Woodson & Gasaway, Tulsa, for plaintiff in error, Donald L. Eddy.

James M. Sturdivant, Jack N. Hays, of Gable, Gotwals, Hays, Rubin & Fox, Tulsa for defendants in error, James E. and Ouida M. Nuckolls.

BLACKBIRD, Justice.

The above named minors, Karen Sue and LeAnne (born in August, 1957, and April, 1963, respectively), are the daughters of the plaintiff in error, Donald L. Eddy, and his former wife, Ouida Marie, now Mrs. James E. Nuckolls. After being married almost 10 years, Donald and Ouida were each granted a divorce from the other on the grounds of incompatibility by a decree entered in March, 1965, in Cause No. D--87907, entitled 'Ouida M. Eddy, Plaintiff, vs. Donald L. Eddy, Defendant', of the District Court of Tulsa County. By said decree, Ouida (who was awarded the couple's real estate and family auto, but no alimony) was granted custody of their named young daughters. Defendant was allowed reasonable visitation privileges and 'ordered to pay the sum of $50.00 per month per child as and for child support until said minors attain their majority, * * *'.

Thereafter, Eddy (hereinafter referred to by his trial court designation of 'respondent') made the decreed child support payments until Ouida married her present husband, in January, 1966. Eddy has not remitted the child support payment due for the month of February, 1966, or any month since. In February, 1967, he remarried.

In April, 1967, Nuckolls and Ouida (hereinafter referred to as 'petitioners') commenced the present proceedings to adopt the two Eddy girls in the County Court of Tulsa County, hereinafter called 'trial court'. They filed a separate petition for adoption of each child (later consolidated under the trial court's cause No. A--2761) and, in connection therewith, also filed an application for an order determining the girls' eligibility for adoption, without the consent of their natural father.

In his response to said application, respondent Eddy did not deny that since February 1, 1966, he had not contributed the $100.00 per month to the minors' support, as required by the divorce decree, but he prayed that the petitioners' application that the girls be termined eligible for adoption without his consent be denied, alleging, among other things, that while he had 'not literally complied' with said decree,

'* * * he has made a contribution through premiums on an endowment policy and had complied with the order by providing necessary clothes and food upon visitation sessions with the children which have been regular.

* * *

* * *

'SIX: That the sums provided in clothing and food plus insurance premiums and the endowment that each child will receive at age eighteen (18) closely parallel and equal child support monies paid over the same length of time if paid at the same rate as set forth in the divorce decree heretofore entered.

'SEVEN: That prior to the date of hearing on the petitioner's application for the order determining child eligible for adoption without consent of natural father, the respondent did file a motion to modify and ratify in the District Court of Tulsa County, which still has jurisdiction, asking that the plan herein set forth be ratified and that the divorce decree be modified to include said plan so that said plan may continue in effect. However, said motion to modify and ratify was filed only one day prior to the hearing date set by the county court. * * *'

At the trial court's first scheduled hearing on the matter in April, 1967, the respondent, who appeared both in person and by counsel, orally requested a continuance until May 15th, but thereupon consented to the court's hearing evidence, upon condition that his request be taken under advisement. During the introduction of evidence in support of the parties' contrary positions as to the necessity of respondent's consent to the minors' adoption, was shown, among other things that in May, 1966, several months after respondent had discontinued his child support payments, he had converted the four-hundred-dollar value of a life insurance policy, he had, into a 15-year, four-thousand-dollar endowment policy, naming the minors as beneficiaries; that the annual premium on this endowment policy is $284.08; that he has taken the position (of which his attorney had informed petitioners' attorney by letter of August 8, 1966) that his payment of monthly installments on this annual insurance premium was sufficient as his contribution to the minors' support; and that, despite his attorney's advice that he could be held in contempt of the divorce court and that the minors' adoption, without his consent, might happen, if he continued his refusal to comply with the divorce decree's child support provisions for a period of one year, he wished to continue the insurance premium payments, and 'take his chances with the Courts.'

After it appeared, as an undisputed fact, that respondent had filed in the divorce action (cause No. D--87907, supra) a motion seeking the divorce court's ratification of his desired substitution of the insurance premium payments, for the previously decreed child support payments, and asking for a modification of the divorce decree changing his financial obligation, thereunder, to the making of the premium payments, the trial court reserved final decision as to whether the minors could be adopted without respondent's consent, until the District Court had acted upon respondent's said motion.

In June, 1967, the next month after the District Court had overruled respondent's said motion, the trial court held a further hearing as to the necessity of respondent's consent to the adoption, and, at the conclusion of said hearing, found that respondent had wilfully failed, for 12 months next preceding the filing of the adoption petition, to make the support payments required by the Eddy divorce decree; and held that, under this State's Uniform Adoption Act, respondent's consent to petitioners' adoption of Karen Sue and LeAnne was not necessary.

Thereafter, the trial court temporarily recessed a later hearing (whose purpose was to determine whether or not the petitioners' adoption of the minors would be for the latters' best interests) in order to interview the minors in his chambers, pursuant to respondent counsel's request that the older child, Karen Sue (then 10 years old), be consulted about the prospective adoption. At the close of the hearing, and after testimony had been heard from several witnesses as to the petitioners' character, and as to other matters pertaining to the purpose of the hearing, the court further continued the case, so that he could order a confidential investigation from the State Department of Public Welfare concerning the matter and allow that Department 30 days to transmit its report of such investigation. Then there was the following colloquy between the court and respondent's counsel:

'MR. GASAWAY: Your Honor, may I make one inquiry.

BY THE COURT: Yes, sir.

MR. GASAWAY: And that is if in chambers the Court inquired of the two daughters their opinion of their natural father, whether or not they enjoyed visiting with him?

BY THE COURT: I did not go into that carefully. I went into their present situation, and as to whether or not they wanted to stay where they were.

* * * I was very careful in going in(to) * * * whether they wanted to change and particularly as to the change of their name, and I asked them whether they wanted Mr. Nuckolls as their legal daddy.'

When the court's final hearing was held...