Adoption of McKinstray v. McKinstray

• Decision Date: 13 April 1981
• Docket Number: No. 17035,17035
• Citation: 628 P.2d 1286
• Parties: In the Matter of the ADOPTION OF Peter Kelly McKINSTRAY and Melody Dawn McKinstray, Minors, v. Dale R. McKINSTRAY, Appellant.
• Court: Utah Supreme Court

Page 1286

628 P.2d 1286

In the Matter of the ADOPTION OF Peter Kelly McKINSTRAY and Melody Dawn McKinstray, Minors, v.Dale R. McKINSTRAY, Appellant.

No. 17035.

Supreme Court of Utah.

April 13, 1981.

Melvin G. Larew, Jr., Salt Lake City, for appellant.

Gary L. Paxton, Salt Lake City, for respondents.

HOWE, Justice:

This appeal is from a decree declaring that the appellant, the natural father of the two McKinstray children, had abandoned them, and allowing their stepfather to adopt them.

Appellant, Dale McKinstray, and his former wife, Nadine Suesserman, are the parents of a daughter and son, ages 13 and 12 at the time this proceeding was brought.A decree of divorce granted in 1970 in Wyoming awarded custody of the children to Nadine, gave McKinstray reasonable visitation privileges, and imposed upon him a child support obligation that would increase from $30 per month for each child the first year to $50 after a period of four years.Nadine and the children moved from Jackson, Wyoming, where the family was living, to California and then to Colorado and Missouri.Nadine remarried and in 1979 came with her family to make a home in Utah.McKinstray and his second wife also moved from Jackson; since 1973they have lived in Worland, Wyoming, 200-250 miles from Jackson.Both sets of grandparents continued to live in Jackson for several years after the McKinstray divorce.

Problems arose with visitation and support within a short period of time.McKinstray lost contact with his children and became irregular in his support payments.His last payment was made in April 1973.Although he was not kept informed of the children's addresses as they moved from place to place, the children spent their summer vacations for several years in Jackson with the maternal grandparents, and McKinstray had reason to know of their presence there since members of his family occasionally saw them.

In 1979 Nadine and her second husband petitioned the district court in Salt Lake County, Utah, for a decree of abandonment divesting appellant of his parental rights and for an order permitting the adoption of the children by their stepfather, Irwin R. Suesserman.Appellant appeared and contested the action.The court found that appellant, although having the ability to pay support for his children after April 1973, had failed to do so, that he had failed, or had made only token efforts, to communicate with them, and that he had failed to maintain a parental relationship with them, all without good cause or justification.The court accordingly concluded that he had deserted and abandoned the children and ordered the permanent termination of all his parental rights.

Following the entry of the court's order, appellant moved for a new trial on the basis of what he characterized as newly discovered evidence in the form of testimony from a former friend of the family who was found to be living in Arizona.Appellant contended that this evidence could not have been discovered earlier despite his exercise of due diligence in preparing for the trial, and that the evidence was material and was likely to have changed the result of the trial.The trial court denied his motion, and he seeks remand for the taking of the proffered additional testimony.

As held in Hlubeck v. Beeler, 214 Minn. 484, 9 N.W.2d 252(1943), when it appears that the degree of activity or inquiry which led to the discovery of a witness or evidence after trial would have produced the same evidence had it been exercised prior thereto, due diligence has not been exercised.See alsoPowers v. Gene's Building Materials, Inc., Utah, 567 P.2d 174(1977);Shields v. Ekman, 67 Utah 474, 248 P. 122(1926).Appellant located the witness whose testimony he proffered as newly discovered evidence by telephoning her residence in Arizona.The record does not disclose why with the same amount of diligence the witness could not have been located prior to trial.

Appellant has also failed to demonstrate that there is a likelihood that the court's judgment would have been different had the proffered evidence been considered.Such a showing is required to warrant the granting of a motion for a new trial because of newly discovered evidence.Universal Investment Co. v. Carpets, Inc., 16 Utah 2d 336, 400 P.2d 564(1965).The evidence sought to be introduced by appellant concerned Nadine's desire that he not have contact with his children, not his own efforts to communicate with them.Since the determinative issue before the trial court involved his efforts to maintain a parental relationship with his children, the proffered evidence would not have affected the outcome.The trial court did not abuse its discretion in the denial of the motion for a new trial.

Appellant also seeks remand or reversal based on insufficiency of the evidence and on his assertion that the trial court should be required, as requested by him, to make additional findings...