Adoption of R.W.S., Matter of, s. 86122

• Decision Date: 09 December 1997
• Docket Number: 88053,Nos. 86122,s. 86122
• Parties: In the Matter of the ADOPTION OF R.W.S., a minor child. Ricky Earl COMBS and Sandra Faye Combs, Appellants, v. Johnny Ray SUTTON, Appellee. and In the Matter of the GUARDIANSHIP OF R.W.S., a minor child. Jennifer SUTTON, Plaintiff, v. Johnny SUTTON, Defendant, Ricky Earl COMBS and Sandra Faye Combs, Appellants, v. Jennifer SUTTON, Johnny Sutton, Jerry Sutton, Sharon Sanders, Dennis Lamecker and Dorothy Lamecker, Appellees.
• Court: Oklahoma Supreme Court

Page 83

951 P.2d 83

1997 OK 148

In the Matter of the ADOPTION OF R.W.S., a minor child.

Ricky Earl COMBS and Sandra Faye Combs, Appellants, v. Johnny Ray SUTTON, Appellee. and In the Matter of the GUARDIANSHIP OF R.W.S., a minor child.

Jennifer SUTTON, Plaintiff, v. Johnny SUTTON, Defendant, Ricky Earl COMBS and Sandra Faye Combs, Appellants, v. Jennifer SUTTON, Johnny Sutton, Jerry Sutton, Sharon

Sanders, Dennis Lamecker and Dorothy Lamecker, Appellees.

Nos. 86122, 88053.

Supreme Court of Oklahoma.

Dec. 9, 1997.

Rehearing Denied Jan. 27, 1998.

THE JUDGMENTS OF THE TRIAL COURT ARE AFFIRMED.

John M. Young, Sapulpa, for Appellants, Ricky Earl Combs and Sandra Faye Combs, Case Numbers 86,122 and 88,053.

H. Duane Riffe, Broken Arrow, for Appellee, Johnny Ray Sutton, Case Number 86,122 and for Appellees, Jerry Sutton and Sharon Sanders, Case Number 88,053.

Jo Stanley Glenn, Tulsa, for Appellee, Johnny Ray Sutton, Case Number 88,053.

Charles Whitman, Tulsa, for Appellee, Jennifer Sutton, Case Number 88,053.

Jeff DeFord, Sapulpa, for R.W.S., Case Number 88,053.

Melinda Johnson Ryan, Sapulpa, for Appellees, Dennis Lamecker and Dorothy Lamecker, Case Number 88,053.

HARGRAVE, Justice.

¶1 Before us are two related cases that we dispose of today by a single opinion. In Case No. 86,122, Ricky Earl Combs and Sandra Faye Combs appeal the trial court's denial of their petition for adoption of R.W.S. based on his determination that consent of the natural father, Johnny Sutton, was required. Case No. 86,122 is submitted on appellants' brief only. In Case No. 88,053, the Combs appealed from the trial court's dismissal of their petition for guardianship of R.W.S. and granting custody of R.W.S. to the mother in the natural parents' divorce. We granted the Combs' motion to retain. We affirm the trial court in both cases.

I. ADOPTION

¶2 Jennifer Sutton filed for divorce from Johnny Sutton on May 27, 1994, in Creek county district court, Sapulpa Division. Judge April Sellers White ruled on an agreed temporary order on June 15, 1994 (the order was filed January 10, 1995), awarding custody of the two minor children to the mother, Jennifer Sutton, and reserving the issue of child support until Johnny Sutton was released from the Department of Corrections.

¶3 On February 1, 1995, the Combs' petition for adoption of R.W.S. was filed in Creek County District Court, Bristow Division, and was heard by Judge Charles Woodson. The natural mother had filed her consent to the adoption and the Combs maintained that consent of the father was not necessary under Title 10 O.S.Supp.1996 § 60.6 because of the natural father's wilful failure to support R.W.S. for one year. The natural father was incarcerated, but was represented at the March 15, 1995 hearing and objected to the adoption.

¶4 On March 15, 1995, Judge Woodson determined that R.W.S. was not eligible for adoption without consent of his natural father. The trial judge ruled that the order entered by Judge White in the District Court of Creek County, Sapulpa Division, on June 15, 1994, in the divorce case had specifically reserved the issue of child support until the father was released from the custody of the Department of Corrections. The order stated that the parties disputed whether the natural father, Johnny Ray Sutton, Sr., had provided support for the minor child during the statutory period. This order was not filed until September 27, 1995.

¶5 On March 27, 1995 the Combs moved for a new trial, alleging error of the court in sustaining a demurrer to petitioner's evidence, in refusing to apply the provisions of 10 O.S.Supp.1996 § 60.6, and that the decision was contrary to the weight of the evidence, among other alleged errors. The motion for new trial was overruled on April 24, 1995 and the order was filed August 14, 1995. The Combs appealed to this Court on August 31, 1995. ¹

¶6 The Combs argue that the trial judge erred in failing to apply Title 10 O.S.Supp.1996 § 60.6, which provides that a child under eighteen years of age cannot be adopted without the consent of its parents, if living, except that consent is not required from:

"1. A parent whose parental rights have been terminated pursuant to the provisions of Sections 1130, 1131, or 29.1 of this title; or

2. A parent who, for a period of twelve (12) months immediately preceding the filing of a petition for adoption of a child, has willfully failed, refused, or neglected to contribute to the support of such child:

a) in substantial compliance with a support provision contained in a decree of divorce ... or other lawful orders of support entered by a court of competent jurisdiction adjudicating the duty, amount, and manner of support, or

b) according to such parent's financial ability to contribute to such child's support if no provision for support is provided in a decree of divorce ...

The incarceration of a parent shall not prevent termination of parental rights under this section; ..." (emphasis added)

¶7 At the hearing before Judge Woodson there was testimony that the natural father had some employment as a truck driver during the two or three months before his incarceration and that he was paid a percentage of each load as compensation. There was testimony from Jerry Sutton that Johnny had the two minor children with him several times and that Johnny provided food and medicine for them, as well as some clothes for the older child. There was conflicting testimony whether Johnny had paid any money to Jennifer during that period, but it is undisputed that at least one check for $80.00 was delivered in January, 1994. Jennifer Sutton testified that she received the $80.00 check, but contended that the other witnesses were not telling the truth about the children having overnight visits with Johnny or that any clothing was ever purchased for R.W.S. Counsel for Johnny Sutton argued a demurrer to the evidence, but the trial judge apparently denied the petition rather than sustaining the demurrer, ruling that the order of the Sapulpa Division had deferred the issue of child support.

¶8 The Combs argue on appeal that the agreed temporary order entered in the divorce case did not relieve the natural father of his obligation to pay child support under § 60.6(2)(b), which states that if there is no provision for support in a decree of divorce, the parent must support according to such parent's financial ability, citing Matter of Adoption of J.L.H., 737 P.2d 915, 920 (Okla.1987). They also argue that, under the statute, incarceration does not prevent termination of parental rights under the section.

¶9 Under the statute, adoption without consent of the parents requires that the parent must have acted wilfully in failing to contribute to the support of the child. In Matter of Adoption of R.R.R., 763 P.2d 94 (Okla.1988), we said that to avoid adoption, the parent need only show support contributions commensurate with ability, in any form, towards the child's living expenses and that gifts comporting with the parent's financial ability are sufficient to discharge the duty. There was testimony before Judge Woodson that the father had provided medical and other care to the children, which the mother disputed. Judge Woodson's order noted that it was disputed whether the father had provided support during the twelve month period, but by his ruling effectively found no wilful failure to support as contemplated by the statute.

¶10 The standard of proof in determining a child's eligibility for adoption without parental consent is clear and convincing evidence. Matter of Adoption of Darren Todd H., 615 P.2d 287, 290 (Okla.1980). We said in that case that the issue of wilfulness is a fact question for the trial court. Judge Woodson failed to find justification under the statute for allowing adoption without consent of the natural father. Judge Woodson found that the existence of a court order deferring child support until a later time would not create a condition under the statute whereby the child could be adopted without the father's consent. We cannot find that there was clear and convincing evidence of wilful refusal to support that would reflect error on the part of the trial judge in this matter.

¶11 We have reviewed the record and find that the trial judge did not commit reversible error in finding that the consent of the natural father was required before R.W.S. was eligible for adoption under the circumstances of this case. The trial court's temporary order in the parties' divorce proceeding in Sapulpa had specifically ruled that any question of child support would be deferred until the father's release from custody of the Department of Corrections. We cannot find that the trial judge erred in determining that there was no wilful failure to support by the father in light of the agreed temporary order deferring the issue of child support.

II. DIVORCE/GUARDIANSHIP

¶12 After denial of their motion for new trial in the Bristow adoption, the Combs filed a petition for guardianship of R.W.S. on April 24, 1995 in Sapulpa. ² The Suttons' divorce case was pending in Sapulpa. The guardianship and divorce cases became inextricably intertwined and eventually were consolidated and transferred to Judge Woodson in Bristow. A summary of the Sapulpa proceedings is detailed below.

¶13 As discussed in Part I, Judge April Sellers White had entered an agreed temporary order in the divorce proceeding, awarding the plaintiff, Jennifer Sutton, temporary custody of the two minor children. Supervised visitation was to be arranged for the defendant after his release from the Department of Corrections. The issue of child support was specifically reserved until the defendant's release from the custody of the Department of Corrections, as were the issues of attorney fees and costs.

¶14 Johnny Sutton was released in June, 1995 and filed a motion to modify custody in the divorce case on July 10, 1995, alleging that he was a fit and proper...