Leithold v. Plass, 931
| Decision Date | 30 January 1974 |
| Docket Number | No. 931,931 |
| Parties | Louis C. LEITHOLD, Appellant, v. Gilbert Norman PLASS et ux., Appellees. (14th Dist.) |
| Court | Texas Court of Appeals |
M. Charles Gandy, Roland M. Searcy, Jr., Bryan, for appellant.
D. Brooks Cofer, Jr., Cofer & van Overbeek, Bryan, for appellee.
This is an adoption proceeding. In 1962 Louis C. Leithold and Thyra Nichols Leithold were divorced in Arizona. Custody of their two year old, adopted son was awarded to Mrs. Leithold, and Leithold was ordered to pay $100 per month child support. Later in 1962 Mrs. Leithold married Gilbert N. Plass, and the child in question remained in her custody. In 1970 Mr. Plass, joined by Mrs. Plass, obtained a judgment of adoption of the child by default. That adoption was reversed because of defective service on Leithold. See Leithold v. Plass, 488 S.W.2d 159 (Tex.Civ.App.--Houston (14th Dist.) 1972, no writ). In 1973 Mr. Plass again prevailed in this suit for the adoption of the child, and Leithold has again appealed.
Leithold has never consented to the adoption of his son. Therefore, the adoption was proper only if one of the exceptions of Vernon's Tex.Rev.Civ.Stat.Ann. art. 46a, sec. 6(a) (1969) (repealed as of January 1, 1974) were complied with. This statute provided for adoption without consent only if:
(A) living parent or parents shall voluntarily abandon and desert a child sought to be adopted, for a period of two (2) years . . . 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. . . .
Although there were no findings of fact or conclusions of law filed, the judgment recited that Leithold 'did not contribute substantially to the support of the said minor child for a period of more than two (2) consecutive years. . . .' Leithold contend that there was either no evidence or insufficient evidence to support the trial court's decree. He also claims that even if the above findings were supported by the evidence, the failure to support the child for the two-year period was excused by the failure of Mrs. Plass to accept tendered support payments.
The relevant years may be divided into the two-year periods of 1963--64 and 1965--66. During the first of those two-year periods, Leithold tendered about ten payments of $50 each. Six of those checks were refused and returned to Leithold with the statement that only the full amount of the Arizona court order, $100 per month, would be accepted. Four of the checks were retained for approximately fourteen months and were then presented for payment. They were returned to Mrs. Plass marked 'insufficient funds.'
In 1961 Leithold had an income of $20,000. In 1963 his financial condition took a turn for the worse, and it reached its worst in 1964 when Leithold was adjudicated a bankrupt. Leithold had an income of about $7800 in 1963 and 1964; in 1965 and 1966 it was about $9000. Leithold testified that during his financial crisis the $50 payments were all he could afford. During a time span of approximately four years, he was incurring legal expenses in the amount of $150--$200 per month. These expenses were necessitated by the extensive litigation between these parties during the last decade (in addition to the present suit there were earlier adoption proceedings in Dallas, Texas, and Phoenix, Arizona, as well as litigation on other matters concerning the child).
It is asserted by the Plasses that from June, 1965, to July, 1967, Leithold made no support payments. This is undisputed, except Leithold obstinately claims that a check was mailed on July 28, 1965 . Mrs. Plass testified that the last check she received before that two-year period was on June 28, 1965. In July, 1967, Leithold resumed making support payments of $100 per month and in 1968, when his financial situation was back to normal, he paid all of his child support arrearages--approximately $5000. He regularly made the $100 per month payments until learning in 1970 that his child had been adopted by default.
In this state there is a strong public policy that a child should not be adopted without the consent of its natural parents, unless those parents...
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