Adoption of Gregory, In re, 43941

• Citation: 495 P.2d 1275
• Decision Date: 04 April 1972
• Docket Number: No. 43941,43941
• Parties: In the Matter of the ADOPTION of Edward Lance GREGORY.
• Court: Supreme Court of Oklahoma

Page 1275

495 P.2d 1275

In the Matter of the ADOPTION of Edward Lance GREGORY.

No. 43941.

Supreme Court of Oklahoma.

April 4, 1972.

Pat Brogan, Oklahoma City, for plaintiff in error.

Foliart, Shepherd, Mills & Niemeyer by John C. Niemeyer, Oklahoma City, for defendants in error.

McINERNEY, Justice.

On this appeal, we must determine whether Edward Lance Gregory is eligible for adoption without the consent of Ronald Winston Gregory, his natural father (respondent). The petition for adoption was filed by Carol Jean Kaylor, mother of Edward Lance Gregory, and her present husband, George Allen Kaylor (petitioners). Petitioners alleged that respondent had wilfully failed, refused and neglected for more than one year to make the monthly child support payments required by the decree granting Carol Jean Gregory, now Kaylor, a divorce from respondent. Answering, respondent alleged that he attempted to make the payments, but that petitioners refused to accept them. After a hearing, the trial court determined that Edward Lance Gregory is eligible for adoption without the consent of respondent.

At the hearing, respondent admitted that he had not made the monthly payments required by the divorce decree. However, he testified that he offered to make the payments the first month after the divorce decree was entered, but that both petitioners, who were then married, stated they did not need nor want the money. Corroborating respondent's testimony, his mother testified that he had offered five or six times to pay child support and that each time petitioners had refused to accept his offer. Further, respondent's sister testified that she had been present on at least four or five occasions when petitioners refused to take child support payments from respondent. Petitioners neither denied nor admitted these offers and refusals.

Under 10 O.S.1971, § 60.7, 'where a parent has wilfully failed, refused or neglected to contribute to the support of his child, as provided in the decree of divorce, . . . for a period of one (1) year next preceding the filing of a petition for adoption of such child, it shall not be necessary to procure the consent of such parent to the adoption of said child.' Respondent admits that he failed to make the child support payments required by the divorce decree. Thus, we need determine only whether respondent's failure to make the payments, under the record presented in this case, amounts to 'wilfully failed, refused or neglected' within the meaning of § 60.7, supra. The evidence supports a finding that the respondent failed or neglected to contribute to the support of his child as provided in the decree of divorce; the evidence does not support a conclusion that respondent 'wilfully failed, refused or neglected' to do so. We reverse.

Uncontradicted evidence established that respondent made several attempts to furnish petitioners support payments for his son. On each occasion, petitioners refused respondent's offer. This positive evidence by respondent, which is uncontradicted and unimpeached, cannot be disregarded. Spillers v. Colby, Okl., 391 P.2d 895 (1964). Eventually, respondent ceased offering to make the payments; money orders purchased and mailed to petitioners after this action was filed were returned. After leading respondent to believe that petitioners neither needed, desired or would accept the child support payments, petitioners now seek to take advantage of the non-payment...