Adoption of P. J. K., In re, 8065

• Citation: 359 S.W.2d 360
• Decision Date: 07 August 1962
• Docket Number: No. 8065,8065
• Parties: In re ADOPTION OF P. J. K. J. D. L. and N. J. L., Petitioners-Respondents, B. J. K., Father-Appellant.
• Court: Court of Appeal of Missouri (US)

Page 360

359 S.W.2d 360

In re ADOPTION OF P. J. K.

J. D. L. and N. J. L., Petitioners-Respondents, B. J. K.,

Father-Appellant.

No. 8065.

Springfield Court of Appeals, Missouri.

Aug. 7, 1962.

Motions for Rehearing or to Transfer Overruled Aug. 22, 1962.

Douglas & Douglas, Neosho, for father-appellant.

Ruyle & Henry, Neosho, for petitioners-respondents.

STONE, Judge.

This is an appeal by an objecting father from a decree of adoption of his child by her stepfather. The child sought to be adopted is 'a dainty, finely formed little girl with sparkling brown eyes, blond hair and fair complexion,' who was born in L_____ County, Texas, on February 4, 1958, of the marriage between B. J. K. (hereinafter called the father) and N. J. K. (hereinafter called the mother), which had been solemnized in Missouri on July 21, 1956, two weeks before the mother had attained her eighteenth birthday. This marriage, of which the child was the only issue, ran aground in stormy matrimonial seas and was dissolved on September 24, 1959, in the District Court of L_____ County, Texas, by decree granting a divorce to the mother 'on the grounds of cruel treatment' and awarding care and custody of the child to the mother but with no provision for the child's support. After the divorce, the mother and the child lived with the mother's parents in Southern Missouri until the latter part of 1959, when they settled in Springfield and the mother found employment to support herself and the child. In March 1960 the mother met J. D. L. (hereinafter called the stepfather) and, after a threemonth courtship, they were married on June 18, 1960. Both were then twenty-one years of age. It was the first marriage for the stepfather, a high school graduate steadily employed for four years (at the time of marriage) as a body and fender man at an automotive repair shop.

On March 22, 1961, the stepfather instituted this adoption proceeding by the filing of his petition in which the mother joined for the stated purpose of giving her express consent to the adoption prayed Cf. In re Adoption of Siler, 240 Mo.App. 1097, 1098, 225 S.W.2d 379. As obviating the necessity of submitting the father's written consent to adoption, it was alleged that, for a period of more than one year immediately prior to the filing of the petition, he had willfully neglected to provide the child with proper care and maintenance. Section 453.040(4). (All statutory references are to RSMo 1959, V.A.M.S.) Immediately upon institution of the proceeding, the court appointed a member of the bar as guardian ad litem of the child [Section 453.020], and in due time the guardian filed his answer. On April 3, 1961, a juvenile court officer filed a detailed report or study [Section 453.070], which was, as the trial judge aptly summarized it, 'very favorable' to the petitioning stepfather and mother. On May 18, 1961, the father filed his answer in which he objected to the adoption of the child, stated that petitioners had not had the child 'in their legal custody' for a period of nine months [Section 453.080], alleged that the mother had 'refused support from this defendant (the father) for the minor child and will not accept such support,' complained that he had been refused the right to visit or see the child, denied that he had 'willfully neglected to provide for her care and maintenance,' and averred boldly and unequivocally that 'he (the father) has always contributed to the support of the child.' (All emphasis herein is ours.)

With all interested parties represented by counsel, a contested hearing was held on July 20, 1961, at the conclusion of which the matter was taken under advisement to permit the filing of briefs. And, on August 25, 1961, the trial court entered a decree of adoption supported by a written memorandum and finding of facts in which he emphasized (and appropriately so in view of the sharply-conflicting evidence) that he had had 'the opportunity to see the parties face to face and hear the testimony and attempt to judge the sincerity of the parties' and expressed himself as believing 'very strongly that the conduct of this father constitutes such willful failure to support and maintain that it comes within the statute [Section 453.040(4)] which eliminates the necessity for written consent.'

Before treating of the merits, we first dispose of the 'point' in the father's brief that the trial court was without jurisdiction because the child was a ward of the District Court of L_____ County, Texas, where the divorce was granted. The father's counsel toss in this 'point' egregiously unsupported by authority and conspicuously undeveloped by argument. In language unmistakably clear, Rule 83.05(a) plainly requires that the points relied on shall be submitted 'with citation of authorities thereunder' and that the brief shall include 'an argument which shall substantially follow' the points. (All references to rules are to the Rules of Civil Procedure, V.A.M.R.) It is neither our function nor our duty to brief appellant's points [Morris v. Willis, Mo., 338 S.W.2d 777, 780; Ambrose v. M.F.A. Co-Operative Ass'n., Mo., 266 S.W.2d 647, 651; Beeler v. Board of Adjustment of City of Joplin, Mo.App., 298 S.W.2d 481, 483], and the 'point' under discussion neither merits nor receives any consideration as such. ¹ But concerned, as we always are, lest our courts inadvertently transgress their jurisdictional limits, we have put aside the unsupported 'opinion' of the father's counsel on this question; and, upon independent investigation, we have determined that, since the mother, to whom custody of the child was granted by the Texas decree, consented to the adoption and since both she and the child were bona fide residents of Greene County, Missouri, when the adoption proceeding was instituted, the Juvenile Division of the Circuit Court of Greene County undoubtedly had jurisdiction of such proceeding. ²

It may not be inappropriate to observe also at this point that the complaint of petitioners' (respondents') counsel concerning the statement of facts in the father's (appellant's) brief is fully justified. Rule 83.05(a)(2) requires 'a fair and concise statement of the facts without argument.' 'The statement is primarily to afford an immediate, accurate, complete and unbiased understanding of the facts of the case, and one which does not fairly present the facts is pernicious to the extent it conveys in the first instance a false, distorted, or imperfect impression of the facts.' Wipfler v. Basler, Mo., 250 S.W.2d 982, 984(3); Markowitz v. University City, Mo.App., 335 S.W.2d 455, 456. '(A) statement which omits the essential facts on which an appellant's adversary relies cannot be deemed a substantial compliance' with Rule 83.05(a)(2). Walker v. Allebach, 354 Mo. 298, 189 S.W.2d 282, 283(3); Kleinhammer v. Kleinhammer, Mo.App., 225 S.W.2d 377, 378. Instant appellant's statement, which presents only facts favorable to the father and designed to support his contention, is within the category labeled as 'pernicious' and does not approach even colorable compliance with the cited rule. But instant respondents have supplied an adequate statement [Rule 83.05(d)]; and, mindful that this proceeding involves the sacred relationship of parent and child, we have disregarded appellant's statement and have determined the appeal on its merits. Carver v. Missouri-Kansas-Texas R. Co., 362 Mo. 897, 245 S.W.2d 96, 100(3).

We address ourselves to the only factual issue, i. e., whether the father's conduct, for more than one year prior to the decree of adoption, was such that it fairly may be said to have constituted willful neglect to provide proper care and maintenance for the child and thus to have obviated the necessity for the father's consent to adoption. Section 453.040. Although (as we have noted) the father's answer alleged that 'he has always contributed to the support of the child,' there was not a scintilla of evidence to that effect. On the contrary, it was established by abundant evidence that, during the period of two years from July 21, 1959 (when the father admittedly terminated his support of the mother and the child in Texas) to July 20, 1961 (the date of trial), his sole payment either to the child or for her support was the sum of $1.75 given to the child while he was visiting her sometime during 1960. Certainly the father did not provide proper care and maintenance for the child during that entire period of two years, but on this appeal his counsel contend that the finding of the trial court that the father had 'willfully neglected' so to provide 'was against the weight of the evidence.' As counsel point out, our courts have declared repeatedly that, in controversies involving termination of the parent-child relationship, adoption statutes must be construed strictly in favor of parental right; ³ and, in keeping with that policy of strict statutory construction, it is settled that the willful neglect contemplated by Section 453.040(4) is neglect that is intentional, deliberate, and without just cause or excuse. In re Perkins, 234 Mo.App. 716, 726-727, 117 S.W.2d 686, 692(6); In re Watson's Adoption, 238 Mo.App. 1104, 1114-1115(7), 195 S.W.2d 331, 337; In re Slaughter, Mo.App., 290 S.W.2d 408, 412. Thus, the determinative inquiry becomes whether the father's admitted failure to support his child was intentional, deliberate, and without just cause or excuse.

The father offered various explanations or excuses for his failure to support. Chief among them was the mother's alleged refusal to accept child support from him. The validity vel non of this excuse rested, in large part, upon the credibility of the parties and upon the weight and value accorded to their oral testimony. On the one hand, the father repeatedly fell back on this excuse while, on the other hand, the mother categorically denied it--'I (the mother) have never refused any money that he has offered; there has never been any...