Cawley v. Allums, 760

• Decision Date: 09 May 1974
• Docket Number: No. 760,760
• Citation: 511 S.W.2d 402
• Parties: James Oris CAWLEY, Appellant, v. D. G. ALLUMS, Appellee.
• Court: Texas Court of Appeals

Page 402

511 S.W.2d 402

James Oris CAWLEY, Appellant, v. D. G. ALLUMS, Appellee.

No. 760.

Court of Civil Appeals of Texas,

Tyler.

May 9, 1974.

Rehearing Denied June 20, 1974.

Smead, Roberts, Harbour, Smith, Harris & French, Earl Roberts, Jr., Longview, for appellant.

Eldred Smith, Longview, for appellee.

McKAY, Justice.

This suit was brought by D. G. Allums, joined by his wife, Karah M. Allums, for the adoption of a minor child, James Kevin Cawley. James Kevin Cawley is the natural child of Karah Allums and the appellant, James Oris Cawley. They were divorced in April of 1971 and Karah later married D. G. Allums, appellee. Appellee alleged in his pleadings that written consent by appellant was not necessary because appellant had not contributed substantially to the support of said minor commensurate with his financial ability for a two-year period immediately preceding the filing of the petition for adoption.

Trial was before the court without a jury and judgment was rendered granting adoption of the minor child by appellee and terminating all parental rights and interests of appellant.

Appellant brings six points on appeal, all of which are concerned with whether appellant contributed substantially to the support of the minor child for a period of two years commensurate with his financial ability, and therefore, whether his written consent was required for such adoption.

Art. 46a, sec. 6(a) Vernon's Ann.Civ.St., provides:

'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 * * *' (Emphasis added.)

The trial court made findings of fact that (1) Karah M. Cawley and James Oris Cawley were divorced on April 21, 1971, and custody of the minor child of the parties, James Kevin Cawley, was awarded to the mother, and appellant was ordered to pay $200.00 per month as child support; (2) an agreed order was entered on January 26, 1972, reducing the monthly child support payments to $135.00; (3) appellant had not asked for change or modification of the order; (4) the minor child, James Kevin Cawley, male, was born December 17, 1966, in Tyler, Texas; (5) Karah M. Cawley, the minor's natural mother, married D. G. Allums, the petitioner, on July 15, 1972, and joined in adoption petition, and minor had resided in petitioner's home since July 15, 1972; (6) petition for adoption was filed August 8, 1973, was heard by the court October 10, 1973, and judgment rendered October 30, 1973, granting the petition for adoption; (7) James Oris Cawley had regular total income of $22,116.00 for the period of 1971 to August, 1973; (8) James Oris Cawley paid child support from April 21, 1971, the date of divorce, through August, 1973, as follows:

                            1971     1972     1973
                           -------  -------  -------
                January             $200.00  none
                February             150.00  $ 60.00
                March               none       60.00
                April               none     none
                May        none     none     none
                June       none     none     none
                July       $200.00  none     $ 80.00
                August      200.00  none      135.00
                September   200.00  none
                October     200.00  none
                November    200.00  none
                December   none     none
                

and after petition for adoption was filed, payments of $135.00 were made for September and for October, 1973; and (9) written consent of the Juvenile Judge of Gregg County, Texas, was filed.

After finding the minor child was a proper subject for adoption, the trial court found in its conclusions of law that James Oris Cawley failed to support James Kevin Cawley for a period of two (2) years commensurate with his financial ability, and, as a matter of law, the consent of James Oris Cawley was not required to the adoption of such minor child.

The record indicates that if appellant had made the child support payments ordered by the court from May, 1971 through August, 1973, he would have paid a total of $4,365.00; he actually paid only $1,685.00 of this amount. There were seventeen months during this 28-month period that he made no payment at all.

The period of two years that a natural parent fails to make child support payments commensurate with his financial ability need not be immediately prior to the judgment of adoption, but may be any two-year period. Lout v. Whitehead, 415 S.W.2d 403 (Tex.1967). During any two-year period carved out of the 28 months after the divorce of Karah Allums and the appellant, there were fifteen months where no support was paid.

By his points 1--4 appellant alleges the trial court erred in granting the adoption without his written consent because he did not fail to contribute substantially to the support of James Kevin Cawley for a period of two years commensurate with his financial ability. In this connection, he argues that...