In re Robert Leon Wylie, 82-LW-1129

• Decision Date: 18 August 1982
• Docket Number: 1494,82-LW-1129
• Parties: IN THE MATTER OF: ROBERT LEON WYLIE
• Court: Ohio Court of Appeals

IN THE MATTER OF: ROBERT LEON WYLIE

No. 1494.

82-LW-1129 (4th)

Court of Appeals of Ohio, Fourth District Lawrence

August 18, 1982

Frank McCown, Ironton, Ohio, for Appellee.

Charles Cooper, Ironton, Ohio, for Appellant.

OPINION

Stephenson J.

This is an appeal by Robert Leon Williams III, appellant herein from a judgment of adoption entered by the Lawrence County Common Pleas Court, Probate Division, wherein Robert G Wylie, appellee herein, was permitted to adopt his step-son Robert Leon Williams IV. The step-son is the child of appellant and his former wife, Christi Lynn Wylie, who is now married to appellee.

The ten month marriage of appellant and his former wife was dissolved on November 20, 1977. The custody of the minor child, who is now the subject of these adoption proceedings, was awarded to the wife and appellant was ordered to pay the sum of $20.00 per week for child support. On October 18, 1979, the mother married appellee after apparently living together for some time prior thereto. On May 9, 1980, a petition for adoption was filed by appellee. Appellant was apparently informed of appellee's intention to adopt the child as early as February, 1980. Appellant thereafter refused to consent to the adoption and filed in the court below, an "affidavit" essentially averring he was refusing his consent to the adoption.

The record further discloses that after the dissolution of his marriage appellant resided at the home of his parents with the exception of two months in 1978, and two separate one-week vacations. He worked at odd jobs such as painting houses and for one month worked at a hospital, which job he quit to vacation at Myrtle Beach, but he obtained no permanent employment until March 24, 1980. He made no child support payments until April 14, 1980, when he received his first check making a $40.00 payment and, thereafter, made $40.00 weekly payments to the time of hearing. Appellant had been given weekend visitation rights in the dissolution decree and he exercised his visitation rights with the child for practically every weekend in his parent's home until March, 1980 when the mother limited the visits to one day per week.

After hearing, the court announced the following:

". . . . . . It is the decision of this court, that the consent of the father is not required on a 3107.07. There has been some communication by visitation by the mother with the mother. I don't see that . . . that is as complete as it should have been, but the statute on the second (2) part of it says, "Or to provide maintenance and support as required by law or judicial decree." I find that the payments paid on April 14th thru May the 9th would not be substantial compliance with the second half of that section A of that 3107.07, therefore his consent is not necessary."

After entry of an order of adoption, appellant perfected this appeal and assigned the following errors:

"I. The Court below erred in finding that the consent of the natural father was not necessary for adoption under Ohio Revised Code 3107.07.

II. The Court below erred in finding that the natural father willfully failed to support the child in question."

The dispositive issue posited for review by the first assignment of error is whether the child support payments between April 14, 1980 and May 9, 1980 barred the court from the granting of the adoption without appellant's consent. R.C. 3107.07(A) reads as follows:

"(A) A parent of a minor, when it is alleged in the adoption petition and the court finds after proper service of notice and hearing, that the parent has failed without justifiable cause to communicate with the minor or to provide for the maintenance and support of the minor as required by law or judicial decree for a period of at least one year immediately preceding the filing of the adoption petition or the placement of the minor in the home of the petitioner, whichever occurs first."

In the posture presented below and here, we are concerned only with the one-year period "immediately preceding the filing of the adoption petition.®1¯ "It has been held that under the present form of the statute that either the failure to communicate or the failure to support for the requisite period is sufficient to dispense with the necessity of consent and that whether such failure occurred is a question of fact for the Probate Court. In re Adoption of McDermitt (1980), 63 Ohio St. 2d 301; Earlier, in In re Schoeppner (1976), 46 Ohio St. 2d 21, 24, the court stated, "Any exception to the requirement of parental consent must be strictly construed so as to protect the right of natural parents to raise and nuture their...