Cawley v. Allums
| Decision Date | 05 February 1975 |
| Docket Number | No. B--4792,B--4792 |
| Citation | 518 S.W.2d 790 |
| Parties | James Oris CAWLEY, Petitioner, v. D. G. ALLUMS, Respondent. |
| Court | Texas Supreme Court |
Smead, Roberts, Harbour, Smith, Harris & French, Earl Roberts, Jr., Longview, for petitioner.
Eldred Smith, Longview, for respondent.
James Oris Cawley, the natural father of an eight-year-old child, complains of the trial court's order of adoption because he did not give his written consent to the child's adoption and his consent was not excused by the provisions of section 6(a) of article 46a, Vernon's Tex.Rev.Civ.Stat.Ann.:
Sec. 6. (a) Except as otherwise provided in this section, no adoption shall be permitted except with the written consent of the living parents of the child; provided, however, that if a living parent or parents shall voluntarily abandon and desert a child sought to be adopted, for a period of two (2) years, and shall have left such child to the care, custody, control and management of other persons, or if such parent or parents shall have not contributed substantially to the support of such child During such period of two (2) years commensurate with his financial ability, then, in either event, it shall not be necessary to obtain the written consent of the living parent or parents in such default, and in such cases adoption shall be permitted on the written consent of the Judge of the Juvenile Court of the county of such child's residence; or if there be no Juvenile Court, then on the written consent of the Judge of the County Court of the county of such child's residence. (Emphasis added.)
The court of civil appeals affirmed the adoption order. 511 S.W.2d 402. The case requires a construction of the words 'during such period of two (2) years.'
Cawley was the former husband of Mrs. D. G. Allums which marriage was dissolved on April 21, 1971. D. G. Allums, joined by his wife, the mother of the child, commenced these adoption proceedings on August 8, 1973, and then obtained the written consent to adopt from the Judge of the Juvenile Court of Gregg County. Cawley appeared and protested the adoption. The court granted the adoption, ruling that the father's consent was unnecessary because he had not contributed substantially to the support of his child 'during such period of two (2) years commensurate with his financial ability.' We reverse the decrees of the courts below.
The trial court found that the father earned a little more than $22,000 between the date of the divorce in May, 1971, and the date the adoption petition was filed in August, 1973. The court further found that the original divorce decree ordered the father to pay $200 each month, but on January 26, 1972, the court reduced the support payments to $135 monthly. According to the findings of the trial court, Cawley made support payments as indicated by the listing in the margin. 1 The Court then for two years commensurate with his financial ability and that his consent to the adoption was not required. We shall examine the twenty-four-month period immediately before the adoption proceedings were commenced since the period from September, 1971, to August, 1973, was the time during which Cawley made the least number of payments.
Cawley fully complied with the court's support orders during five of the first six months of that twenty-four-month period, but D. G. Allums says that the proper way to determine whether Cawley substantially contributed is to total the amount owing for the entire twenty-four months and to compare that with the amount Cawley actually paid. That is the construction given the statute by the courts below, and they have concluded that the amount contributed, $1,285, is not a substantial part of the total which Cawley owed for the whole period, which was $3,850.
Cawley, on the other hand, argues that he fully complied with the support orders during five of the first six months of the twenty-four-month period and that he made one other full payment in August, 1973, along with other lesser payments. He says that his record of non-support did not endure for the required twenty-fourmonth period by reason of the his complete compliance with the support orders during one-fourth of that period.
This court had held that, while adoption statutes are generally construed liberally, the rule of strict construction applies in favor of a non-consenting parent to the adoption. Heard v. Bauman, 443 S.W.2d 715 (Tex.1969); Leithold v. Plass, 505 S.W.2d 376 (Tex.Civ.App.1974, writ ref'd n.r.e.). Independent of that rule, however, the meaning of section 6(a) in its application to a parent's failure to provide substantial support for the required period of time is clarified when we examine the entire section. Section 6(a) excuses a parent's written consent in two instances. The first basis is that of a parent who voluntarily abandons and deserts a child 'for a period of two (2) years . . ..' This means that the fact of abandonment or desertion must first exist and that it must then continue for the period of time required by the statute. This is not to hold that a temporary interruption may defeat the fact of abandonment, but the term does mean that the fact must endure for a period of two years after the fact occurs.
There is no contention that the father fell under this provision, but it has significance, time-wise, when we come to the second reason which excuses the parent's consent. The statute speaks of a failure to contribute substantially to the support of such child 'during Such period of two (2) years . . .' (Emphasis added.) The word 'such' refers to the kind of time lapse required under the abandonment and desertion provision of the statute. It is 'such' period, meaning that it is the same kind of and is like the time requirement applicable to abandonment. The failure to contribute substantially to the child's support did not commence in this case until March, 1972. Even if we commence with the support record in April, 1971, we would reach the same conclusion as to the commencement of the twenty-four-month period, since Cawley paid regularly from July, 1971, through February, 1972, except for one month. The relevant period of non-support thus commenced in March, 1972, and he made seven monthly payments out of eight prior to March. Until the fact of Cawley's non-support commensurate with his financial ability existed, the period of time did not commence to run. The period from the date of commencement of Cawley's defaults in his parental duty ot the date the adoption petition was filed falls short of the required two years.
The judgments of the courts below are reversed and the order for adoption is dissolved.
The trial court fixed the amount James Cawley could and should pay per month commensurate with his financial ability, and those amounts are not disputed. Whether, over a two year period, his payments were substantial is, in my opinion, an issue of fact. The trial court found that Cawley's payments over a two year period were not substantial, and I think that there is some evidence to support the finding. I would therefore affirm the judgments below.
This dissent is respectfully submitted.
The majority views this case as one requiring an interpretation of only the six words contained in Article 46a, Section 6(a), Texas Revised Civil Statutes Annotated, 'during such period of two (2) years'. The issue is not, however, to be resolved only by an interpretation of these words; the statute is not so limited. In the Complete words of the statute the decisive issue is whether James Cawley failed to contribute 'substantially to the support of such child during such period of two (2) years commensurate with his financial ability'. This requires not only a determination of which two-year period is applicable, but also an examination of the support payments actually made by Cawley compared to both the payments he was ordered to make by the trial court and the amount he earned during the appropriate period.
It is well established that the two-year period to be examined by the court need not be the two years immediately preceding the filing of the...
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