Belcher v. Bowling, CA

• Court: Arkansas Court of Appeals
• Writing for the Court: MAYFIELD
• Citation: Belcher v. Bowling, 738 S.W.2d 804, 22 Ark.App. 248 (Ark. App. 1987)
• Decision Date: 04 November 1987
• Docket Number: No. CA,CA
• Parties: James R. BELCHER, Appellant, v. Caleb Philemon BOWLING and Frances Loraine Bowling, Appellees. 87-259.

Page 804

738 S.W.2d 804

22 Ark.App. 248

James R. BELCHER, Appellant, v. Caleb Philemon BOWLING and Frances Loraine Bowling, Appellees.

No. CA 87-259.

Court of Appeals of Arkansas Division II.

Nov. 4, 1987.

Boyd A. Tackett, Jr., Conway, for appellant.

Wm. David Mullen, Walnut Ridge, for appellees.

MAYFIELD, Judge.

This is an appeal from a probate court order granting appellees' petition for adoption of a minor child without consent of the natural father. Appellees are Frances Loraine Bowling, the natural mother of the child, and her second husband, Caleb Philemon Bowling. The appellant is James Belcher, the child's natural father.

Frances and James Belcher were divorced on December 30, 1983. Under the terms of the divorce decree, custody of their daughter was awarded to the mother and the father was ordered to pay child support in the amount of $23.00 per week. On January 10, 1985, the mother married Caleb Bowling. On July 18, 1986, Frances and Caleb filed a petition for adoption of the child alleging that the natural father's consent was not needed because, for a period of at least one year, he had failed significantly without justifiable cause to communicate with the child or to provide for the care and support of the child as required by law or judicial decree.

On July 21, 1986, the appellant served the appellees with requests for admission and interrogatories by mailing them to appellees' attorney. Appellees failed to respond within 30 days after service. If the requests for admission were deemed true, the appellees' grounds for adoption would be disproved; therefore, the appellant filed a motion requesting that the requests be deemed admitted pursuant to Ark.R.Civ.P. 36, and asking that the appellees' petition for adoption be dismissed. Appellees answered asking the court to accept Frances Bowling's late answers (her answers were filed on August 26, 1986), and to allow Caleb Bowling additional time in which to answer. Appellees asserted they were in the United States Navy stationed outside the continental United States, and that their failure to respond was occasioned by these circumstances. The appellant filed a motion to strike that response, but the trial court refused to deem the requests admitted and denied appellant's motion to strike.

After a hearing held December 9, 1986, the court granted the appellees' petition for adoption. The court found that appellant had admittedly not paid any child support payments since the divorce; that there had been no significant communication or attempts to establish communication by the appellant with his minor child; and that there had been no care or support furnished by the appellant for at least a period of one year prior to the filing of the adoption petition.

On appeal to this court, appellant first argues that the trial court erred in refusing to strike appellees' response to the requests for admission and in refusing to hold them admitted. He contends the trial court's finding that the appellees had justifiable reason for delay is clearly erroneous. We do not agree.

Ark.R.Civ.P. 36 provides The matter is admitted unless, within 30 days after service of the request, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by his attorney.... These time periods may be shortened or lengthened by the court.

Ark.R.Civ.P. 6(b) also provides for extensions of time upon motion made after the expiration of the specified time period where the failure to act was the result of "excusable neglect, unavoidable casualty or other just cause." The rule applies to requests for admissions. Borg-Warner Acceptance Corporation v. Kesterson, 288 Ark. 611, 708 S.W.2d 606 (1986). The policy of the Arkansas Supreme Court has been to require compliance with the rule governing responses to requests for admission. However, the court examines the particular facts of each case and when the facts warrant, requires acceptance of late responses. Womack v. Horton, 283 Ark. 227, 674 S.W.2d 935 (1984). Here, the trial court found that appellees were outside the continental United States during the time required for response; that they had justifiable reason for delay; and that appellant was not prejudiced by the delay in appellees' response. Under the facts of this case, we cannot say the trial court erred in overruling appellant's motion to strike the appellees' response and refusing to deem the requests admitted.

Appellant also argues that the trial court erred in finding that he failed without justifiable cause to support or communicate with the minor child. Under Ark.Stat.Ann. § 56-206(a)(2) (Supp.1985), parental consent is required before a minor child may be adopted. However, section 56-207(a)(2) (Supp.1985) provides an exception as follows:

(a) Consent to adoption is not required of:

(1) ...

(2) a parent of a child in the custody of another, if the parent for a period of at least one year has failed significantly without justifiable cause (i)...