Adoption of G.A.R., Matter of

• Decision Date: 23 April 1991
• Docket Number: No. C-90-8,C-90-8
• Citation: 810 P.2d 113
• Parties: In the Matter of the ADOPTION OF, G.A.R., J.E.R., A.S.R., and J.R.R. E.R., Petitioner (Respondent below), v. L.T. and E.M.T., Respondents (Petitioners below).
• Court: Wyoming Supreme Court

Page 113

810 P.2d 113

In the Matter of the ADOPTION OF, G.A.R., J.E.R., A.S.R., and J.R.R.

E.R., Petitioner (Respondent below), v. L.T. and E.M.T., Respondents (Petitioners below).

No. C-90-8.

Supreme Court of Wyoming.

April 23, 1991.

John M. Burman, Designated Faculty Supervisor and Carol Warnick, Student Intern, Wyoming Legal Services, Laramie, for petitioner.

Cherie Shelton Norman of Skiles, Hageman & Butler, Laramie, for respondents.

Before URBIGKIT, C.J., THOMAS, MACY, and GOLDEN, JJ., and ROONEY, Retired J.

ROONEY, Justice, Retired.

This matter is before this court upon a grant of a petition for certiorari ¹ to review the district court's denial of a motion for a new trial after the trial court granted the petition for adoption of the four minor children of E.R. and E.M.T. without the consent of E.R. and over his objection.

We affirm.

E.R. words the issues here presented to us:

"I. Whether the trial court erred in determining that [E.R.] was legally responsible for the support of his children pursuant to Wyo. Stat. § 14-2-204, the liability for support statute?

"II. Whether the trial court erred in finding that there was clear and convincing evidence that [E.R.] willfully failed to contribute to the support of or abandoned his children?"

E.R. and E.M.T. were married July 4, 1981. They had four children: G.A.R., J.E.R., A.S.R., and J.R.R. E.M.T. filed for divorce from E.R. in January 1987. E.R.'s whereabouts were unknown and service was made by publication. The divorce was finalized on July 13, 1987. E.R. was awarded visitation rights upon giving E.M.T. one week's notice of intent to exercise visitation and provided he not remove the children from the city in which E.M.T. resided. The decree provided that E.R. "shall be responsible for child support." The amount of child support and other provisions relative thereto were not ordered inasmuch as the court did not have personal jurisdiction over E.R. E.M.T. married L.T. on November 21, 1987.

W.S. 1-22-110 provided in pertinent part: ²

"(a) * * * the adoption of a child may be ordered without the written consent of the parents or putative father * * * if the court finds that the nonconsenting parent or putative father has:

* * * * * *

"(iii) Willfully abandoned or deserted the child; or

"(iv) Willfully failed to contribute to the support of the child for a period of one (1) year immediately prior to the filing of the petition to adopt[.]"

The district court made a factual finding "by clear and convincing evidence that the respondent father has willfully abandoned or desserted [sic] his children or that he has willfully failed to contribute to the support of the children for one year immediately prior to the filing of the Petition to Adopt."

LIABILITY FOR SUPPORT

E.R. argues that:

"Since there was no in personam jurisdiction [over him in the divorce proceedings], and no specified amount of child support [contained in the divorce decree, he] was under no obligation to pay support to his children which could lead to the adoption of his children, over his objection, for willful failure to pay support."

His argument overlooks the obligation for parental support of minor children which exists absent a court ordered duty to do so. We recognized this common law duty in Warren v. Hart, 747 P.2d 511 (Wyo.1987). As L.T. and E.M.T. noted in their brief, the court there quoted from I Chitty's Blackstone, Commentaries on the Laws of England, Pt. I and II at 368 (1838):

" 'The duty of parents to provide for the maintenance of their children, is a principle of natural law; an obligation, says Puffendorf (b), laid on them not only by nature herself, but by their own proper act, in bringing them into the world: * * *. By begetting them, therefore, they have entered into a voluntary obligation to endeavour, as far as in them lies, that the life which they have bestowed shall be supported and preserved. And thus the children will have the perfect right of receiving maintenance from their parents.' "

Warren, 747 P.2d at 514 n. 1.

There may be instances in which a court can define or limit this common law duty, but, properly, such was not done here. Rather, the court expressly recognized the continuance of the duty in the divorce decree insofar as it could, absent personal jurisdiction. The duty being thus recognized, the failure to perform it is actionable.

"Any person legally responsible for the support of a child under the age of eighteen (18) years who abandons, deserts, neglects or unjustifiably fails to support the child is liable for support of the child. It is no defense that the child was not or is not in destitute circumstances."

W.S. 14-2-204(a).

E.R. had a duty to contribute to the support of the minor children prior to the time of their adoption.

FAILURE TO SUPPORT

After contending that he had no duty to support the minor children, E.R. argues, perhaps inconsistently, that he did not willfully fail to contribute to such support. We agree with the trial court to the contrary, even under the restrictive standard for review of the evidence in matters such as this:

"[I]t is a fundamental right for one to have custody of his minor child, and that we must therefore consider the evidence with 'strict scrutiny.' "

Matter of Parental Rights of PP, 648 P.2d 512, 513 (Wyo.1982).

" ' * * * [A]doption statutes are strictly construed when the proceeding is against a non-consenting parent and every reasonable intendment is made in favor of that parent's claims. * * * ' "Such strict construction is mandated by the fact that parental rights are fundamental rights. A strict construction of § 1-22-110(a)(iv) * * * requires interpretation of the words 'contribute to the support' and careful examination of the facts of the case to determine if such contribution was made, and, if not, whether the failure to do so was 'willful.'

Matter of Adoption of Voss, Wyo., 550 P.2d 481, 485 (1976). See DS v. Department of Public Assistance and Social Services, Wyo., 607 P.2d 911, 918 (1980).

* * * * * *

" * * * At least, such contributions, which are necessary by the nonconsenting parent to prevent adoption without his consent pursuant to § 1-22-110(a)(iv), must be 'substantial' or 'regular' or 'constitute a material factor' in the child's support."

Matter of Adoption of CCT and CDT, 640 P.2d 73, 74-76 (Wyo.1982).

The evidence in this case does not reflect contributions by E.R. to have been "substantial" or "regular" or sufficient to constitute a "material factor" in the support of his children. E.R. testified that he made periodic gifts to the children on some birthdays and on some Christmases. As noted by the trial court, periodic gifts are not sufficient to meet a support obligation. Id. Here, certainly, they were not a substantial, regular or material factor in the support of the children.

E.R. testified that he made some occasional cash payments to E.M.T. He could not recall the exact times or amounts of such payments. E.R. testified with reference to making support payments:

"Q. Do you consider yourself employable?

"A. Very much so.

"Q. And you don't have trouble finding jobs; is that correct?

"A. No, not in Colorado. Jobs are kind of scarce here in Laramie.

"Q. But you don't have trouble finding employment in Colorado?

"A. No, I don't.

"Q. And have you been employed most of the time since 1987 to the present?

"A. Yes.

"Q. And you've been earning money; is that correct?

"A. Yes.

"Q. And you've been able to support yourself; is that correct?

"A. Yes.

"Q. Have you given any support to [E.M.T.] for your children since July of 1987?

"A. Yes.

"Q. And what support have you given her.

"A. On different occasions, I've provided her with cash money, $100, $200 when I could.

"Q. Do you have any proof of that?

"A. No, I didn't. We had an understanding that I would give her money when I could, and she would let me see the kids; and I hardly ever seen the kids, even when I did give her the money.

* * * * * *

"Q. Did anyone ever see you give [E.M.T.] any money for the support of your children?

"A. [E.M.T.] and I have always been real private. The hand-off? No.

"Q. No one was present when you gave her this money?

"A. No.

"Q. And when did you give her this money?

"A. Well, on different occasions when we met. We met at Taco Bell. We met at Kentucky Fried Chicken, Washington Park. That's probably about it. There were a couple of cases when I met her at the park.

"Q. And no one was present?

"A. No. They knew I was going to meet with her, but, no, they were not present.

"Q. Do you have dates as to when you gave her this money?

"A. Specific dates, I do not. I don't keep very good records. No, I don't.

"Q. Do you remember months?

"A. No, I don't.

"Q. How about years?

"A. Years, yes.

"Q. Okay, 1987, how much did you give her in child support?

"A. In child support in 1987, it varied. Probably $1,000.

"Q. And 1988, did you give her any child support?

"A. That was '88, I'm sorry. That was '88. In '89, I did. ' 87, no. We were--we were barely getting the divorce then, in '87. ' 86, no.

* * * * * *

"Q. Did you give [E.M.T.] any money in 1989 for the support of your children?

"A. Yes, I did.

"Q. And how much?

"A. 1989, I met with her three times and approximately $600.

"Q. Do you have any proof of that?

"A. No, I don't.

"Q. And you paid her in cash?

"A. Uh-huh.

"Q. Was anybody else present?

"A. No.

"Q. Do you know the dates?

"A. No, I don't.

"Q. Do you know the months?

"A. No, I don't. I don't recall now the months that I met with her.

* * * * * *

"Q. And where did you go to pay her this money? Tell us about that.

"A. Well, at one time we met at Taco Bell on Grand Avenue. We also met at Kentucky Fried Chicken, at Washington Park. We drove in the city--town. That was it.

* * * * * *

"Q. Did anyone else come with her when she came to see you at these places?

"A. No, she usually came by herself. She always came by herself.

"Q...