Adoption of Thomas, Matter of, 4-681A37

• Decision Date: 16 February 1982
• Docket Number: No. 4-681A37,4-681A37
• Citation: 431 N.E.2d 506
• Parties: In the Matter of the ADOPTION of Chris Delayne THOMAS, Jr., and Carl David Thomas. Chris D. Thomas, Respondent-Appellant, Thomas H. Lee, Petitioner-Appellee.
• Court: Indiana Appellate Court

Page 506

431 N.E.2d 506

In the Matter of the ADOPTION of Chris Delayne THOMAS, Jr. and Carl David Thomas. Chris D. Thomas, Respondent-Appellant, Thomas H Lee, Petitioner-Appellee.

No. 4-681A37.

Court of Appeals of Indiana, Fourth District.

Feb. 16, 1982.

David S. McCrea, McCrea & McCrea, Bloomington, for respondent-appellant.

Richard S. Harrison, Cotner, Mann & Chapman, Bloomington, for petitioner-appellee.

CONOVER, Judge.

Appellant Chris Delayne Thomas (Chris), natural father of Chris Delayne Thomas, Jr. and Carl David Thomas (the boys) appeals a judgment of the Monroe Circuit Court granting the petition of Thomas H. Lee (Lee) to adopt the boys. They are the natural children of Chris and Lee's present wife Charlotte Ann Lee (Charlotte). She gave her consent to the boys' adoption by Lee, but Chris did not.

We reverse.

ISSUES:

Chris' motion to correct errors preserved the following issues for review on appeal:

1. Did the trial court err in considering the welfare caseworker's report after the parties had stipulated it into evidence at the adoption hearing?

2. Did the trial court err in failing to make findings of fact sua sponte to support its decision?

3. Did the trial court err in granting rights of visitation to the natural paternal grandparents? ¹

4. Is the decision supported by sufficient evidence?

Because this court prefers to decide an appeal on its merits, cf. Cunningham v. Hiles, (1979) Ind.App., 395 N.E.2d 851, and West v. Indiana Ins. Co., (1969) 253 Ind. 1, 247 N.E.2d 90, we hold Chris' motion to correct errors preserved the insufficiency issue, but deplore the quality of draftsmanship contained therein. ²

FACTS:

Chris and Charlotte married in 1970 and were divorced in 1978 by a Louisiana Court. During their marriage, they had two children, both boys. The divorce decree granted custody of the boys to Charlotte, but contained no provision requiring Chris to support them, nor did it grant him any specific rights of visitation.

Lee and Charlotte married in 1978 after the divorce. They moved with the boys to Bloomington, Indiana, that year and have resided there ever since. Chris alternately lived in Louisiana and Colorado after the divorce.

With Charlotte's written consent, Lee filed a petition to adopt the boys in the Monroe Circuit Court on May 8, 1980. The petition alleged under Ind.Code 31-3-1-6(g) ³ that Chris' consent was not required. The welfare caseworker assigned to this adoption filed her report with the court. It contained the statement "(t)here does not appear to be any reason that this adoption should not take place." It further stated Chris had not paid child support for the preceding six months.

The Petition was heard by the Court on July 14, 1980, with petitioner and respondent present and participating. The parties stipulated the welfare report into evidence at the hearing, but Chris "disputed" the statements therein regarding lack of reasons to prevent adoption and Chris' failure to pay support for the preceding six months. ⁴

Chris testified he talked to the boys twice by telephone in 1979 and once in 1980. He tried many other times, but Charlotte thwarted these efforts on each occasion. Charlotte disputed this statement, testifying Chris had attempted to communicate with the boys no more than 4 times in the interim between their October, 1978 divorce and the July, 1980 adoption hearing. Charlotte also disputed Chris' testimony that he sent greeting cards, money and other gifts to the boys on holidays and birthdays.

Chris testified without dispute that he voluntarily began paying child support of $150 per month to Charlotte in May, 1978, some 6 months before their divorce that October, and has continued to make regular monthly payments to her in that amount since that time, excepting one interruption of two month's duration. Chris sent Charlotte payments to cover this "arrearage" which she had received but had not cashed up to the time of the adoption hearing. ⁵ It is also undisputed that different members of Chris' family had visited the boys several times at their home in Bloomington. These visitors included Chris' mother who visited them in April, 1979, and March, 1980.

DECISION:

Because we reverse due to insufficiency of the evidence to support the trial court's decision, we do not discuss the other issues appellant raises in this appeal.

The Motion to Correct Errors

Before reaching the sufficiency issue, however, we deem it necessary to discuss the content of appellant's motion to correct errors. On the abandonment issue, it merely said:

"Respondent moves the Court, pursuant to Trial Rule 59(A)(1), (4), (6) and (8) to set aside its Order of Adoption, ..., and to grant a new hearing on the grounds that: ...

"(3) Indiana Code 31-3-1-6 requires, for a valid adoption, either the consent of the living natural parents or a finding by the court that the living natural parents have abandoned the children sought to be adopted.

"(4) respondent never gave his consent ..., so the basis of the Court's Order of Adoption must necessarily have been a finding by the Court of abandonment by respondent, .... Inexplicably, such a finding was not expressly stated by the Court....

"(6) respondent demonstrated his concern for his natural children and his desire to maintain a parental relationship with them at his appearance at the Petition to Adopt hearing. Respondent's continuing concern and support for his natural children absolutely refutes any finding of abandonment made by the Court ..." (Emphasis added.)

The motion contains no other argument or discussion on that issue. Appellant merely attached a machine copy of Adoption of Bryant, (1963) 134 Ind.App. 480, 189 N.E.2d 593 to support his assertion that it was error for the trial court to grant the paternal grandparents rights of visitation. Chris' inattention to T.R. 59(D)(2) requirements was almost fatal as to the sufficiency issue he sought to raise.

Our rules of procedure set the minimum standard to be met by the pleader who prepares a motion to correct errors to properly preserve the issues he seeks to raise for trial and appellate purposes. T.R. 59(D) provides:

"(2) Content of Motion. In all cases in which a motion to correct error is made, such motion shall separately state the error or errors which are claimed. The error claimed is not required to be stated under, or in the language of the bases for the motion allowed by this rule, by statute, or by other law. Each claimed error shall be stated in specific rather than general terms, and shall be accompanied by a statement of the facts and grounds upon which the errors are based." (Emphasis supplied.)

Ind.Rules of Procedure, T.R. 59(D)(2).

The motion to correct errors is a critically important pleading, both to the trial court and this one. Properly and clearly drafted, it affords the trial court an opportunity to correct any errors it may have committed, thus avoiding an appeal. For appellate purposes, it is the "complaint on appeal." ⁶ Our Supreme Court speaking through Hunter, J., succinctly stated the purposes of such a motion in the following language:

"The motion to correct error serves three purposes: (1) to present to the trial court an opportunity to correct error which occurs prior to the filing of the motion; (2) to develop those points which will be raised on appeal by counsel; and (3) to inform the opposing party concerning the points which will be raised on appeal so as to provide that party an opportunity to respond in the trial court and on appeal."

P-M Gas & Wash Co., Inc. v. Smith, (1978) Ind., 375 N.E.2d 592 at 594. Errors may not be hidden in generalities in the motion to correct errors to be raised later specifically on appeal. Young v. Duckworth, (1979) Ind., 394 N.E.2d 123; Guardiola v. State, (1978) Ind., 375 N.E.2d 1105. Bald assertions of error, couched in general rather than specific terms do not constitute substantial compliance with the rules of procedure. Anderson v. Ind. State Employees Appeals Comm., (1977) Ind.App., 360 N.E.2d 1040. In Johnson v. State, (1975) Ind.App., 338 N.E.2d 680 at 682, we said:

"The requirement of specificity contained in T.R. 59(B) and echoed by T.R. 59(G) ⁷ should be notorious by now. Not only must the alleged error be specifically set out, but also the facts and grounds in support of the claimed error must be discussed with enough particularity that the trial court may be made aware of the exact legal issue involved. Failure to comply waives any claimed error except sufficiency of the evidence, pursuant to T.R. 50(A)(5)." ⁸

The reasons for formulation of T.R. 59(D)(2) and its predecessors by our Supreme Court should be obvious. Neither the trial court nor the courts on appeal should be put to the task of following a meager trail of clues through a rhetorical jungle to determine what counsel had on his mind by way of issues. The sheer volume of litigation presently confronting the courts prohibits such endeavors, if we are to stay abreast of this floodtide. Errors sought to be preserved should stand out with crystal clarity in the motion to correct errors. This enables the Court, trial or appellate, to reach the merits without undue expenditure of effort in essentially unproductive areas.

Although T.R. 59(D)(2) does not mandate statements of the alleged errors to be couched in the language of the rule, etc., neither does it prohibit counsel from so stating them, followed by language fulfilling the remaining requirements. The penalty for non-specificity can be affirmance of the trial court's decision without consideration of the merits on appeal. Such action is forestalled by careful preparation of the motion to correct errors in light of T.R. 59(D)(2).

Sufficiency of the Evidence

As we review the sufficiency of the evidence, we are mindful of the standard of review set forth in the trial rules:

"(T)he Court on appeal shall not set aside the findings or judgment unless clearly erroneous,...