Heard v. Bauman

• Decision Date: 09 July 1969
• Docket Number: No. B--1462,B--1462
• Citation: 443 S.W.2d 715
• Parties: Clifford Dale HEARD et ux., Petitioners, v. Joan BAUMAN, Respondent.
• Court: Texas Supreme Court

Page 715

443 S.W.2d 715

Clifford Dale HEARD et ux., Petitioners, v. Joan BAUMAN, Respondent.

No. B--1462.

Supreme Court of Texas.

July 9, 1969.

Rehearing Denied July 30, 1969.

Thornton & Thornton, R. E. Thornton, Olney, for petitioners.

Penix, McCracken & Andrews, Eugene W. McCracken and Ken Andrews, G. D. Hinson, Graham, for respondent.

SMITH, Justice.

This is an adoption proceeding. On December 6, 1967, petitioners filed this proceeding seeking to adopt four minor children born to the marriage of Rhonell Dean George and Joan George. This marriage was dissolved on May 8, 1963, by judgment of the District Court of Wichita County, Texas, and custody of the four minor children was awarded to the mother with right of visitation by the father at 'reasonable times and circumstances.' The judgment ordered that the father 'pay into the office of Howard Large, Chief Probation Officer of Wichita County, Texas, at the Courthouse in Wichita Falls, Texas, the sum of Forty and 00/100 ($40.00) Dollars per week to be delivered to the plaintiff herein to be used by her for the support and maintenance of said minor children; that the first payment is to be made on or before Friday, May 10th, A.D.1963, and a like payment on or before Friday of each week thereafter until each of said children becomes eighteen years of age, or until further orders of this Court.' The judgment of divorce also recites that the mother was 'a fit and proper person to have the custody and possession of said minor children.'

The events leading to the filing of the adoption proceeding are these. The petitioners, Geneva Heard, the paternal grandmother of the four minor children, and Clifford Dale Heard, her present husband, seek to adopt the four minor children pursuant to Article 46a, § 6, ¹ Vernon's Annotated Civil Statutes. It is alleged in the amended petition for adoption:

'Both the living and natural father and mother of such children sought to be adopted have voluntarily abandoned and deserted such children, and have surrendered complete care, custody and control of such children to petitioners for a period of more than two years, having left such children in the care, custody, control and management of such petitioners since the dates above written. Further petitioners would show the Court that neither the natural father nor the natural mother of such minor children have supported any of such children or contributed to their support for a period of more than two years next preceding this date commensurate with the financial abilities of either the natural father or the natural mother.'

The natural mother, now Joan Bauman, the respondent, appeared and contested the right of the petitioners to adopt her children. The father, Rhonell Dean George, made no appearance. There appears in the transcript the written consent of the County Judge of Young County, Texas, to the adoption of these minor children.

On April 16, 1968, after a trial before the court without a jury, the trial court entered its judgment of adoption. The judgment recites, in part:

'(T)hat the matters, facts, and grounds set out in such petition are all and singular true and correct; that the proof upon trial, evidence that the contestant of this application to adopt being Joan Bowman (sic) has for A period of more than two years next preceding the filing of the application to adopt failed to contribute to the support of said minor children Commensurate with her ability to so contribute to such support and that she is the natural mother of such minor children. The proof further shows that Ronald (sic) Dean George, the natural father of such children has failed for a period of two years or more next preceding the filing of such petition to contribute to the support of such minor children commensurate with his ability to so contribute * * *.' (Emphasis added.)

On appeal, the Court of Civil Appeals in and for the Second Supreme Judicial District of Texas, reversed the judgment of the trial court and rendered judgment that the adoption be denied. Tex.Civ.App., 442 S.W.2d 416. We affirm.

Although the petition for adoption contains allegations of abandonment of the children, the petitioners have disavowed reliance thereon in their motion for rehearing filed in the Court of Civil Appeals, their brief in this Court, and in oral argument. The ground for adoption, without the written consent of the mother, is restricted to that of her failure to contribute to the support of the four children commensurate with her ability for a period of two years next preceding the filing of the application for adoption on December 6, 1967. The record contains facts which have no bearing upon the question of whether or not the respondent failed to contribute to the support of the four children as provided in the statute. We confine our statement to the facts relevant to the question presented for our decision. The respondent has married twice since being divorced from the father of the children. In March, 1964, after her second marriage, Joan requested the petitioner, Geneva, to take the children into her home. Geneva testified that two of the children were immediately received, and in July, 1964, the other two arrived to live with the petitioners. Other than sending presents and some clothing, the respondent contributed nothing toward the support and maintenance of the four children. Likewise, the father failed to contribute to the support and maintenance of the children. With the exception of a few payments made immediately after the date of the divorce decree, the father failed to comply with the judgment of the court holding him legally liable for their care and maintenance. The mother visited the children occasionally and made no effort to regain possession of the children until sometime in November, 1967. At no time during this period did the petitioners request financial aid from either the father or mother. Geneva owned, at the time of the arrival of the children in her home, some property in Wichita Falls, consisting of 'a two-story house and duplex.' The children, however, lived with the petitioners on Mr. Heard's farm near Olney, Texas. Mr. Heard testified that he owned a 320 acre farm and the house where he lived; he had never requested any one to help support the children; he became attached to them; he spent 'over three or three and a half years I imagine it, figured up, it would cost a man $150.00 or $200.00 a year, I mean a month on the four kids to raise them by the time you pay for school, clothes, school supplies, the insurance.' Geneva testified that Joan first mentioned taking the children in November, 1967. When asked, 'What did you tell her?' Geneva replied, 'I just told her I didn't know. She asked me when she could get them and I told her, I imagine we would have to go through Court because we had the legal custody, and that was the only thing I said about it.' Joan left and returned on 'Saturday before Christmas on Monday and wanted to take them then.' It was then 'I told her that we had filed for adoption.' Joan was called as a witness by the Heards. She testified that the reason she left the children with the Heards was because she was having marital difficulties with her second husband; receiving no funds from the father of the children and none from her second husband. She testified that she was unemployed for various reasons part of the time and when she was employed she earned approximately $37.50 per week, plus tips, estimated to be from $5.00 to $15.00 per week, while working as a waitress in a cafe; she offered the Heards money for the support of the children after she married Mr. Bauman in July, 1965, but the offers were refused; she began earning money as an IBM operator about six months before the trial; she and her husband moved to Oklahoma and it was there that she began a study course in operating IBM Machines; she earned approximately $285.00 per month and her husband was earning $2.99 per hour. It was during this time that she offered money to the Heards. The Heards admitted that the mother visited the children more often in 1967, and that Joan gave a dollar occasionally as a present to the children. However, the Heards did not deny that Joan offered money to them during the latter part of 1967, for the support of the children.

Petitioners' only point of error presented in this Court is stated in the petition for writ of error, as follows:

'The sole and only point of error in this case is that the Court of Civil Appeals erred in holding that the exception of two year failure to support set out in Article 46a Section (6) Vernon's Anno.Civ. Statutes is of no consequence, is not the law, and is not to be considered by the Court in the event of contest by either natural parent.'

Although this point does not precisely urge that there was some evidence to support the trial...