Klobnock v. Abbott

• Decision Date: 18 March 1981
• Docket Number: No. 64697,64697
• Citation: 303 N.W.2d 149
• Parties: Donald Michael KLOBNOCK, Appellee, In the Interest of Cody Michael Abbott, a Minor, Michael David ABBOTT, Appellant.
• Court: Iowa Supreme Court

Page 149

303 N.W.2d 149

Donald Michael KLOBNOCK, Appellee In the Interest of Cody Michael Abbott, a Minor Michael David ABBOTT, Appellant.

No. 64697.

Supreme Court of Iowa.

March 18, 1981.

Clark L. Holmes, Des Moines, for appellant.

Stephen P. Meyer and Mary M. Meyer, Chariton, for appellee.

James B. Mefferd, Jr., Chariton, guardian ad litem for the minor.

Considered by REYNOLDSON, C. J., and LeGRAND, UHLENHOPP, McCORMICK, and McGIVERIN, JJ.

McGIVERIN, Justice.

The main question here is whether the parental rights of Michael David Abbott should have been terminated under section 600A.8(4), The Code 1979, for failure to support his natural child, Cody Michael Abbott. We affirm the trial court order terminating the father's parental rights.

Section 600A.8(4) provides in relevant part:

The juvenile court shall base its findings and order under section 600A.9 on clear and convincing proof. The following shall be, either separately or jointly, grounds for ordering termination of parental rights.

. . . .

4. A parent has been ordered to contribute to the support of the child ... and has failed to do so without good cause.

Michael appeals contending (1) that under the circumstances his parental rights should not have been terminated for failure to provide support, and (2) that section 600A.8(4) is unconstitutionally vague as applied to him.

I. Facts and proceedings. Our review of a trial court's finding of grounds for termination of parental rights under section 600A.8 is de novo. In re Hoppe, 289 N.W.2d 613, 614 (Iowa 1980); In re Kelley, 262 N.W.2d 781, 782 (Iowa 1978); Iowa R.App.P. 4. We give weight to the fact findings of the trial court, especially when considering the credibility of witnesses, but are not bound by them. Iowa R.App.P. 14(f)(7).

Our de novo review reveals that the following facts were established by clear and convincing evidence as required by section 600A.8. Cody was born July 8, 1976, to the marriage of Michael and Connie Abbott. That marriage was dissolved on September 19, 1977, and Connie was awarded custody of Cody. The decree ordered Michael to pay to Connie $100 per month support for their minor child until the child reached age eighteen, became self-supporting or had completed his education, whichever occurred first. He was to have reasonable visitation with the child.

Michael paid no child support during the first two years after the decree. He only saw his son once or twice during that time. Since the dissolution, he has lived in Des Moines and worked at the John Deere plant where his gross weekly pay averages $400. He admitted at trial he could have paid the ordered support but did not.

After the dissolution, Connie and the child lived in Chariton, Omaha and Indianola. On September 15, 1978, Connie married Donald Klobnock, the petitioner. They moved with the child to Chariton and still reside there. Donald has supported the child since Donald married Connie. He testified he loves Cody and wants to adopt him. Connie, of course, encourages that prospective adoption.

On August 6, 1979, as a prerequisite to adoption, section 600.3(2), The Code, Donald filed a petition under chapter 600A to terminate the parent-child relationship between Michael and Cody. Donald had standing to bring the termination action as a prospective parent and as stepparent-custodian of the child. §§ 600A.5(1), .2(6), .2(8).

The petition alleged that the natural father, Michael, had been ordered in the dissolution decree to pay child support but failed to do so without good cause. § 600A.8(4). A guardian ad litem was appointed for the child. § 600A.6(2).

At trial, on October 8, 1979, Michael resisted the termination. He admitted failing to pay support, despite an ability to pay, but claimed that he had not been allowed to visit the child. The evidence showed he telephoned Connie's parents a few times after the decree but, at her request, they did not tell him where she was living due to Michael's alleged history of violence to Connie and her property. Although he knew Connie's general location when she lived in Omaha and Chariton, he made no effort to contact her, obtain her telephone number, or see the child. Michael testified that he consulted two attorneys to enforce his visitation rights but was told he would have practical problems in court on that issue unless he paid his child support. ¹ That advice seemed to curb his desire for visitation and he continued to pay no support.

The amount of delinquent support for the two-year period since the decree was $2400. Michael said at trial that he wanted to pay all the support. He admitted he had no real excuse for not paying it. He had $500 in a savings account and had been saving $50 per week from his paycheck at his credit union. The court granted him until October 22 to pay the delinquent support to the clerk of court. If so paid, the petition to terminate his parental rights would be dismissed. If the support was not paid, the petition would be granted.

Michael only paid $400 by October 22. On October 25 Donald filed an application for an order terminating Michael's parental rights. Michael filed a motion to dismiss the petition contending, inter alia, that chapter 600A, as applied to him, violated the due process and equal protection clauses of the United States and Iowa Constitutions when used to terminate parental rights because of failure to pay child support.

On December 26 the court made detailed findings of fact, conclusions of law and rendered a decree granting the petition and terminating the parent-child relationship between Michael and his son, Cody. Michael appeals from that order.

We turn now to the issues presented by Michael.

II. Termination for failure to provide support. Michael says the evidence does not establish grounds for termination of his parental rights. Section 600A.8 lists six grounds which, if established by clear and convincing proof, "shall be, either separately or jointly, grounds for ordering termination of parental rights." The legislature's use of the word "shall" imposes a duty on the trial court to recognize these grounds for termination if they are established by the evidence. § 4.1(36), The Code. In this case, grounds for termination exist if "a parent has been ordered to contribute to the support of the child ... and has failed to do so without good cause." § 600A.8(4). See Mullins v. Mullins, 606 P.2d 573 (Okl. 1980) (willful failure to pay support as ordered in divorce decree a ground for termination); Brazier v. Brazier, 597 S.W.2d 442 (Tex.Civ.App. 1980) (failure to support when able to do so ground for termination).

The provision in section 600A.8(4) for termination of parental rights for failure to pay ordered support was added by the legislature in 1976. 1976 Session, 66th G.A., ch. 1229, § 8. This is our first opportunity to consider whether parental rights should be terminated solely for failure to pay child support.

A parent has a basic obligation to support a minor child. The legislature has determined that it is in the best interests of a child to terminate a parent-child relationship if the parent refuses to support the child. Although abandonment is a separate ground for termination, section 600A.8(3), we conclude that the legislature intended termination for nonsupport to occur where a parent's failure to pay manifests indifference to a child and is therefore akin to abandonment. "(A)bnegation of court-ordered financial responsibility to a child (is) the equivalent of abandonment. A parent who unjustifiably refuses to meet a support obligation manifests complete indifference to his child." Kelley, 262 N.W.2d at 785. A substantial, and not merely sporadic or insignificant, failure to pay ordered support without good cause justifies termination of parental rights under section 600A.8(4). So interpreted, our statute is similar to other states' statutes allowing termination, or dispensing with a requirement of consent to adoption, for failure to support a child for a specific time period. See, e.g., Pender V. McKee, 266 Ark. 18, 582 S.W.2d 929 (1979) (failure to support for one year allows adoption without consent of nonsupporting parent); Beverly v. Kennedy, 153 Ga.App. 149, 264 S.E.2d 690 (1980) (statute since repealed); In re Lockmondy, 168 Ind.App. 563, 343 N.E.2d 793, 1 A.L.R.4th 825 (1976) (consent of noncustodial parent who fails to support child for one year not needed for adoption); Mullins, 606 P.2d at 574; Craddock v. Worley, 601 S.W.2d 445 (Tex.Civ.App. 1980).

We conclude that Michael has substantially failed to pay support as contemplated by section 600A.8(4). Clearly, Michael has failed to pay $100 per month child support, as ordered in the dissolution decree, for the first two years after the decree, including up to the day of trial. He finally paid $400 when given an extension by the court. We agree with the trial court that "the father was aware of his obligation to provide such support (and) that he failed to contribute appreciably to such support until the commencement of the present proceedings."

Once a court finds a failure to pay ordered support, the question is whether that failure was without good cause. § 600A.8(4). There is no question that Michael was financially able to meet his support obligation. He admitted at trial that it would not have been difficult to pay $100 a month.

Michael advances two reasons why he failed to pay the support. The first is that Connie would not allow him to visit the child. The dissolution decree granted Michael "unlimited visitation." Michael claimed that he tried, without success, to visit the child and therefore refused to pay support. We decline to find that this is good cause for failing to provide support. Michael's remedy if he felt that he was not being allowed to exercise his visitation rights is not to unilaterally withhold support payments. The testimony at trial revealed that relations between Michael and Connie...