Hamrick v. Seward, 46898

• Decision Date: 03 April 1972
• Docket Number: No. 46898,Nos. 1,2,3,46898,s. 1
• Citation: 189 S.E.2d 882,126 Ga.App. 5
• Parties: J. A. HAMRICK v. C. H. SEWARD
• Court: Georgia Court of Appeals

Page 882

189 S.E.2d 882

126 Ga.App. 5

J. A. HAMRICK v. C. H. SEWARD.

No. 46898.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

April 3, 1972.

Syllabus by the Court

1. If there is any evidence to support the findings and judgment entered in an adoption proceeding tried before a judge without a jury, it will be affirmed on appeal. The evidence is to be construed to uphold rather than to destroy the judgment.

2. There was ample evidence to sustain the findings of the judge that the father of the child had wantonly and wilfully failed to comply with the provisions of a decree in a divorce proceeding by which he was required to make regular child support payments to the wife, and that this failure had continued for more than a year next preceding the filing of the adoption proceedings and thus that it was not necessary that he consent to the adoption.

Mrs. Ruth Gardner Hamrick obtained a divorce from James Allen Hamrick in DeKalb Superior Court and by the final decree entered October 6, 1969, she was awarded custody of their minor child, Philip Wilder Hamrick (born June 17, 1968), and the father was ordered to pay to the mother as child support the sum of $15 per week beginning October 10, 1969.

Thereafter on May 15, 1970, Mrs. Hamrick was married to Charles H. Seward of Savannah, and they have, since that time, lived in Savannah.

On March 29, 1971, Mr. Seward filed in Chatham Superior Court a petition to adopt the child, alleging that its father had 'wilfully failed during a period of more than twelve months next preceding the filing of this petition to comply with the decree of DeKalb Superior Court requiring him to support the child.'

Attached to the petition was a written consent of the mother that the adoption be granted.

The father answered, denying that he had wantonly and wilfully failed to comply with the decree of DeKalb Superior Court requiring him to support the child, and that 'he did in fact tender in person to the said Ruth Gardner Hamrick Seward monies for the support of said child on three occasions in 1970 and on one occasion in 1971, which tenders were refused,' and that 'as a result thereof Mrs. Seward has made it impossible for your objector to comply with the terms of said decree and judgment for the support of said minor child.' He further alleged that he had always and now stood ready to comply with the decree in all respects, and asserted that the mother and stepfather had failed and refused to comply with the decree in not allowing the child to visit him for two weeks during the summer of 1970, after proper notice as required in the decree, and that he had, on numerous occasions, visited the child since the date of the decree, maintaining the relationship of father and son, and that he wished to continue it.

The matter came on for hearing, after which findings were made and a judgment was entered allowing the adoption. In the judgment the court made findings of fact that the father of the child had not made a single payment required under the decree of DeKalb Superior Court for support of the child, that he had made no lawful tender of any amount, that he had been employed continuously since March, 1970, that it was within his means to make the payments and that his failure to do so for the year next preceding the filing of the petition for adoption had been wanton and wilful, obviating any necessity for his consent to the adoption, and that the adoption would be in the best interests of the child.

A decree of adoption was entered and the father, James Allen Hamrick, appeals.

Willis J. Richardson, Jr., Savannah, for appellant.

Alan S. Gaynor, Savannah, for appellee.

EBERHARDT, Judge.

1. If there is any evidence to support the findings of the trial court, we must affirm. West v. West, 228 Ga. 397, 398, 185 S.E.2d 763. The judge, sitting without a jury as the trier of factual issues, is the judge of the credibility of the witnesses, including parties. Mustang Transportation, Inc. v. W. W. Lowe & Sons, Inc., 123 Ga.App. 350(3), 181 S.E.2d 85. On appeal the evidence is to be construed to uphold rather than to destroy the findings and judgment. Associated Mutuals v. Pope Lumber Co., 200 Ga. 487, 496, 37 S.E.2d 393.

2. The sole enumeration of error is that the adoption was granted without the written consent of the child's father, and that there was no allegation or sufficient evidence to show an abandonment of the child by its father.

The adoption law of this State, found in Code Ann. Ch. 74-4, provides by § 74-403 that 'Except as otherwise specified in the following subsections, no adoption shall be permitted except with the written consent of the living parents of the child.' Concededly the father of this child has not consented. However, by Code Ann. § 74-403(2) it is provided that: 'Where a decree has been entered by a superior court . . . ordering a parent to support a child and such parent has wantonly and wilfully failed to comply with the order for a period of 12 months or longer, the consent of such parent shall not be required and the consent of the other parent alone shall suffice . . .' ¹

It was held in Sale v. Leachman, 218 Ga. 834, 131 S.E.2d 185, reversing Sale v. Leachman, 106 Ga.App. 879, 129 S.E.2d 88), that the 12 months period referred to in this section is the period next preceding the filing of the petition for adoption. For other discussion of this provision see Carpenter v. Forshee, 103 Ga.App. 758(3), 120 S.E.2d 786.

Thus the question here is whether there is any evidence in this record to support the findings of the trial court that during this period the father did wantonly and wilfully fail to support the child as ordered to do by the decree. We think there is. Under the uncontradicted evidence the father obtained employment in March, 1970 and has worked regularly since that time. While the amount of his earnings was not shown, he has at no time contended that his earnings were not sufficient in amount to enable him to make the payments if he had chosen to do so. Indeed, he now says that from his earnings, he has saved up enough and has it invested in United States Savings Bonds to pay in full the arrearages. This evidence was sufficient in and of itself to justify the court to infer that the failure to make the payments for a period of a year before the adoption proceeding was filed was wilful and wanton, and the finding of wilfulness and wantonness is amply supported. It meets the test spelled out in Carpenter v. Forshee, 103 Ga.App. 758, 773, 120 S.E.2d 786, 788 where we held that "wantonly and wilfully' means without reasonable excuse, with a conscious disregard of duty, willingly, voluntarily, and intentionally.'

Appellant relies heavily upon such cases as Glendinning v. McComas, 188 Ga. 345, 3 S.E.2d 562, affirming McComas v. Glendinning, 59 Ga.App. 234, 200 S.E. 304, Johnson v. Strickland, 88 Ga.App. 281, 76 S.E.2d 533, and Wheeler v. Little, 113 Ga.App. 106, 147 S.E.2d 352, but these cases are inapposite. As to Glendinning and Johnson, it must be observed that the provision of Code Ann. § 74-403(2), set out above, was not in the law when they were decided. This provision was incorporated into the Code section by an amendment found in Ga.L.1950, p. 289. It made a substantial change in the law as to what must be shown to obviate the necessity of obtaining the consent of the father who is ordered under a decree of court to pay support for the child and who wantonly and wilfully fails to do so. The results in Glendinning and Johnson might very well have been different if the law had been as it now stands when they were decided. And it follows that if the provision included by the 1950 amendment had not been added it would still be necessary to show abandonment as defined in Glendinning and Johnson; or, if the father had been in compliance with the decree for child support it would be necessary to show that kind of abandonment, which is one of the grounds excusing the obtaining of consent listed at the opening of Code Ann. § 74-403(2) and which was there before the 1950 amendment. The factual situation in Wheeler was altogether different, where the aunt of a child sought to adopt it. Its mother was dead, and the father had left the child to live with the aunt. He had failed to contribute to the support of the child, but there was no decree of court directing him to do so.

Appellant contends that he had, on three occasions in 1970 and on one occasion in 1971, offered to make partial payment of his arrearages in child support under the decree and that she had rejected his offer, saying that she wanted total payment thereof, and that if he should send a part payment she would return it. Was this sufficient to bring him in compliance with the decree? We think not.

In the first place, the offers to make partial payment did not amount to a lawful tender, just as the trial court found. 'A tender to be effectual must be for the full amount due.' Smith v. Pilcher, 130 Ga. 350, 355, 60 S.E. 1000, 1003. Moreover, he conceded in his testimony that he did not, at the time, have the money, but asserts that after the mother's refusal of his offers he had a payroll deduction instituted for the purchase of United States Savings Bonds and through this method had accumulated an amount sufficient to cover the full amount due. He did not, however, say that he had, at any time, offered to her the bonds or money in an amount sufficient to pay the amount due; only that he was now willing to do so. She was authorized to reject his offers of partial payment.

Even if he had tendered the bonds or money at the time of the hearing it would have been ineffective, for an offer to pay up the arrearages comes too late after the filing of the petition for adoption. In re Adoption of Eddy (Okl.), 487 P.2d 1362. Nor would payment after that time restore the requirement of his written consent to the adoption. In re Burton's Adoption, 147 Cal.App.2d 125, 305...