Treiber v. Stong

• Decision Date: 26 September 1980
• Docket Number: No. 51067,51067
• Citation: 5 Kan.App.2d 392,617 P.2d 114
• Parties: Bernard Michael TREIBER, Appellant, v. Jan Risner STONG, Appellee.
• Court: Kansas Court of Appeals

Page 114

617 P.2d 114

5 Kan.App.2d 392

Bernard Michael TREIBER, Appellant, v. Jan Risner STONG, Appellee.

No. 51067.

Court of Appeals of Kansas.

Sept. 26, 1980.

Syllabus by the Court

1. If the parental rights of a natural father of an illegitimate child have not been severed and parental rights have been asserted by him, he has preference to custody of the child over prospective adoptive parents unless he has failed or refused to assume his parental duties for two consecutive years.

2. The legislative purpose of K.S.A. 59-2102 was to establish rules between the natural parent or parents and the prospective adoptive parents on when and under what circumstances a consent to adoption can be revoked.

3. The irrevocability of a consent under K.S.A. 59-2102 applies to disputes between a natural parent or parents and the prospective adoptive parents and the consent, when withdrawn, is not binding on the consenting parent in a custody dispute between the natural parents.

4. In a custody dispute between the natural parents, the trial court may consider the fact that one of the natural parents gave consent to an adoption by a third party as evidence of that party's parental attitude in determining the best interest of a child.

5. In determining the right to custody of children between parents, the primary consideration is the best interests and welfare of the children, and all other matters are subordinate thereto; the judgment of the trial court on this issue should not be disturbed in the absence of an affirmative showing of abuse of discretion.

6. The question of custody is addressed to the sound judicial discretion of the trial court after consideration of all the facts and circumstances shown by the evidence, and on appellate review its decision will not be disturbed unless there is a clear showing of an abuse of discretion.

7. Judicial discretion is abused when action taken by the trial judge is arbitrary, fanciful or unreasonable, which is another way of saying that discretion is abused only when no reasonable person would take the view adopted by the trial court.

8. A judge has an ethical duty to be patient, dignified and courteous to litigants, lawyers, and others with whom he deals in his official capacity, and to accord to every person who is legally interested in a proceeding or to his lawyer full right to be heard according to law.

9. In a case wherein the issue is a custody dispute between the natural parents, it is held that the appellant was not denied a fair trial and that the trial court did not abuse its discretion.

William T. Davitt, Wichita, for appellant.

Susan K. Ellis, Wichita, for appellee.

Before FOTH, C. J., and ABBOTT and REES, JJ.

ABBOTT, Judge:

This is a child custody dispute between the natural parents of an illegitimate child. There is no dispute concerning paternity.

The trial court awarded custody to the mother, Jan Risner, and the father, Michael Treiber, appeals. In order to understand the issues raised by the father, it is necessary to set forth, at least in part, the facts and the procedural history of this case as well as those in a separate adoption case that is not before this Court.

The parties lived together for four months and then went their separate ways. Unknown to either, Jan was pregnant when they ceased living together. Michael learned of Jan's pregnancy a few weeks before the child's birth and offered to marry her. She refused. He then offered to support Jan and the child or to take custody of the child. Jan gave birth to a baby girl on January 8, 1978. Jan signed a consent through a state approved adoption agency to allow a Wichita couple to adopt the child. The consent was specifically limited to the couple seeking the adoption; however, Jan did not know the name or address of the couple. Temporary custody was granted on January 10, 1978, to the prospective parents in the adoption proceedings and the child was delivered to them.

Unaware of either the birth of the child or the adoption proceeding, Michael filed a petition on January 11, 1978 (Case No. 78-D-131), seeking a restraining order to prevent the child being adopted and asking for custody of the child if the mother should wish to give it up. An ex parte order restraining Jan from placing the child for adoption was issued in the case. Michael next intervened in the adoption action and petitioned for temporary custody. A hearing was held on January 16, 1978, at which Michael's request for temporary custody was denied and the trial judge ordered that temporary custody remain with the prospective adoptive parents. Jan filed a motion to dismiss the domestic relations case (No. 78-D-131), which motion was denied by the administrative judge on February 10, 1978, and it was ordered that all further proceedings take place in the adoption case (No. 78-A-13). A few days later, without notice to Michael, the prospective adoptive parents dismissed their petition for adoption and Jan was allowed to withdraw her consent. Custody of the child was granted to Jan and the adoption case was closed. That order was entered on February 16, 1978. The following day, Michael filed a petition in this Court for a writ of habeas corpus setting forth the facts that the consent had been withdrawn and the case dismissed. The petition was denied on February 24, 1978. No appeal was taken from the adoption proceeding. A petition for a writ of habeas corpus is not a substitute for a direct appeal and does not preserve the issues that could have been raised in a direct appeal; thus, several issues that Michael raises are not properly before this Court. Thereafter, custody remained with Jan. Michael made voluntary support payments and provided a policy of health insurance for the child.

On June 27, 1978, Michael married a woman who had a child by a prior marriage. Another child was born to them prior to further hearings in the case before us. On January 22, 1979, Jan married a member of the armed forces who was stationed in South Carolina. On January 29, 1979, she moved the court to dismiss the petition still on file in the domestic relations case so that the order restraining her from removing the child from the State of Kansas would be dissolved and she and the child could join her husband. Michael answered and requested permanent custody of the child. A study of the parties, their homes and the child was ordered by and presented to the trial court. The case was tried on April 23, 1979. The trial court found both parents to be fit, applied the standard of best interest of the child and awarded custody to Jan with reasonable rights of visitation to Michael. Michael appealed. After this appeal was filed, the child was turned over to Michael for an agreed upon visit that was to last until July 7, 1979. Jan and her husband were living in Texas, and a dispute arose as to whether Michael was to return the child to Texas or Jan was to return to Kansas to get the child. An accusation in contempt was filed against Michael and a hearing was held. The trial judge dismissed the citation for contempt, established definite and certain visitation times, and provided for transportation expenses for visitation purposes. Each party was denied attorney fees and expenses. Michael then filed an amended notice of appeal.

The issues presented by Michael in his brief as we perceive them are as follows:

1. Did the mother waive her right to custody by consenting to the adoption? (Appellant also complains in the body of his argument about matters pertaining to the adoption proceeding from which he did not directly appeal.)

2. Did the court err in finding that it would be in the best interest of the child for her custody to be awarded to the mother?

3. Was the decision by the trial judge the product of his prejudice against Michael's attorney?

4. Did the trial judge who heard the accusation in contempt err in not ordering Jan to pay Michael's expenses and attorney fees incurred in defending the contempt citation, and in ordering that Michael pay all transportation costs for visitations and continue to pay child support during visitations?

Michael argues that the consent to adopt given by Jan was "irrevocable" under K.S.A. 59-2102; she therefore waived any right to the child and as the natural father he is entitled to custody as against the prospective adoptive parents. As we perceive the argument it is twofold: first, that the trial court erred in not giving Michael custody in the probate proceeding, and second, that Jan's consent to adoption permanently waived any right she had to custody of the child. As to the first argument if the parental rights of a natural father of an illegitimate child have not been severed and those rights have been asserted by him, he has preference to custody of the child over prospective adoptive parents unless he has failed or refused to assume his parental duties for two consecutive years. In re Lathrop, 2 Kan.App.2d 90, 575 P.2d 894 (1978); K.S.A. 59-2102(3). Regardless of what the merits were of the orders continuing temporary custody in the adoptive parents, such orders expired on February 16, 1978, when the trial judge dismissed the adoption action and placed custody in Jan. A direct appeal was not filed from that order, however, and the question of whether Jan or Michael should have been given temporary custody of the child when the prospective adoptive parents decided not to continue with the adoption proceedings and relinquished custody is now moot.

The effect of Jan...