Voss' Adoption, Matter of

• Decision Date: 25 May 1976
• Docket Number: No. 4542,4542
• Citation: 550 P.2d 481
• Parties: In the Matter of the ADOPTION OF George Robert VOSS, II, a minor child. George R. VOSS, Appellant (Contestant below), v. Jack J. RALSTON, II, Appellee (Petitioner below).
• Court: Wyoming Supreme Court

Page 481

550 P.2d 481

In the Matter of the ADOPTION OF George Robert VOSS, II, a minor child.

George R. VOSS, Appellant (Contestant below), v. Jack J. RALSTON, II, Appellee (Petitioner below).

No. 4542.

Supreme Court of Wyoming.

May 25, 1976.

Ronald W. Hofer, Casper, signed the brief and appeared in oral argument on behalf of appellant.

Philip N. Nash, Juneau, Alaska, signed the brief and appeared in oral argument on behalf of appellee.

Before GUTHRIE, C. J., and McCLINTOCK, RAPER, THOMAS and ROSE, JJ.

RAPER, Justice.

The trial court allowed adoption of the child of a non-consenting father. The crucial question in this appeal, presented by the father-appellant, involves the construction of § 1-710.2, W.S.1957, 1975 Cum.Supp., Laws, 1963, Ch. 59, § 8:

'An adoption may be decreed without the written consent of the parent or parents of the child sought to be adopted where said non-consenting mother or father:

'(a) has been adjudged guilty by a court of competent jurisdiction of cruelty, abuse, or mistreatment of the child; or

'(b) has been judicially deprived of parental rights or had parental rights terminated with respect to the child; or

'(c) who has willfully abandoned such child;

'(d) if it is proven to the satisfaction of the court that said father or mother, if able, has not contributed to the support of said child during a period of one (1) year immediately prior to the filing of the petition for adoption, or

'(e) has caused the child to be maintained in a public or private children's institution or the Wyoming department of public welfare for a period of one year without contributing anything to the support of said child during said period.'

Precisely stated, must (c) and (d) be read and considered together since the conjunctive 'or' does not appear following (c) as it does following each of the other conditions which must exist in the alternative before a parent loses his rights of parenthood?

The father-appellant and the present Catherine Lynn Ralston were married in 1968. George R. Voss, II, the child-subject of this appeal, was born to that union. The parents were divorced on March 23, 1970 and the child's custody awarded to the then Mrs. Voss with a child-support allowance of $125.00 per month, subsequently reduced by stipulation to $75.00 per month. About a month after the marriage dissolution, on April 25, 1970, the petitioner-appellee for adoption married the divorced Mrs. Voss and the child has lived with them ever since.

The petition only alleged and the trial judge only found that the father had not contributed to the support of the minor child during a period of one year immediately prior to the filing of the petition for adoption even though able to do so. There was no allegation nor finding that the father had abandoned his child.

The questioned section is obviously poorly written and ungrammatical. Section 1-710.2 is grammatically incorrect when subsection (c) is read with the opening phrase of the statute, thus:

'An adoption may be decreed without the written consent of the parent or parents of the child sought to be adopted where said non-consenting mother or father:

'(c) who (sic) has willfully abandoned such child.'

Subsections (a), (b) and (e) can be read separately with the opening of the section. If the word 'who' was left out, and it does serve no useful purpose, (c) would be able to stand alone.

Going through the same process with (d), we first come up with a seeming lack of connection:

'An adoption may be decreed without the written consent of the parent or parents of the child sought to be adopted where said non-consenting mother or father:

'(d) if it is proven to the satisfaction of the court that said father or mother, if able, has not contributed to the support of said child during a period of one (1) year immediately prior to the filing of the petition for adoption, or'

It would make sense if the words were rearranged as follows: place the words 'has not contributed to the support of said child during a period of one (1) year immediately prior to the filing of the petition for adoption' at the beginning of the subsection, followed by 'if it is proven to the satisfaction of the court that said father or mother, if able, or.'

We then end up with the subsection (d) more related to the opening, reading:

'An adoption may be decreed without the written consent of the parent or parents of the child sought to be adopted where said non-consenting mother or father:

'(d) has not contributed to the support of said child during a period of one (1) year immediately prior to the filing of the petition of adoption, if it is proven to the satisfaction of the court that said father or mother, if able, or'

After doing this transposition for some careless draftsman, we now have:

'An adoption may be decreed without the written consent of the parent or parents of the child sought to be adopted where said non-consenting mother or father:

'(c) has willfully abandoned such child;

'(d) has not contributed to the support of said child during a period of one (1) year immediately prior to the filing of the petition for adoption, if it is proven to the satisfaction of the court that said father or mother, if able, or'

Even with repair of the legislation, the word 'or' is missing between the two subsections, in order to clearly conform to the position taken by appellant that there must be abandonment and non-support for one year or to clearly fit the position taken by appellee that each is a separate ground. An ambiguity exists so we must therefore resort to statutory construction. Where the language is unambiguous and conveys a clear and definite meaning, there is no occasion to resort to rules of statutory construction. State v. Hungary, 1956, 75 Wyo. 423, 433, 296 P.2d 506, 509.

An attempt to locate the source of the questioned section finds us eventually in Montana where similar language is found, but with a different introductory phrase. After providing for the written consents of parents, § 61-205, Revised Codes of Montana 1947, 1975 Cum.Supp., states in pertinent part:

'provided, that consent shall not be required from a father or mother,

'(d) who has, in the state of Montana, or in any other state of the United States, willfully abandoned such child; or,

'(f) if it is proven to the satisfaction of the court that said father or mother, if able, has not contributed to the support of said child during a period of one (1) year before the filing of a petition for adoption; * * *.'

The footnotes to § 61-201 of the Revised Codes of Montana 1947, 1975 Cum.Supp., indicate that the quoted § 61-205 came from the Uniform Adoption Act. The uniform act section of comparable import has an even different word format. Section 6 of the Uniform Adoption Act, 9 U.L.A. Master Edition, p. 18, is worded:

'(a) Consent to adoption is not required of:

'(1) a parent who has (deserted a child without affording means of identification, or who has) abandoned a child;

'(2) a parent of a child in the custody of another, if the parent for a period of at least one year has failed significantly without justifiable cause (i) to communicate with the child or (ii) to provide for the care and support of the child as required by law or judicial decree;

* * *'

Through evolution, the Wyoming act bears only a faint resemblance to its ancestor.

We cannot say that there is the clerical error claimed by appellee in omission of 'or' at the end of subsection (c). An 'or' does not appear in § 8, Ch. 59, Session Laws of Wyoming, 1963, nor in House Enrolled Act No. 53, by which the section was enacted and which we have examined. The Digest of the House Journal covering the journey of H.B. 72, its origin, reveals nothing but minor matters in other particulars. An in camera personal view of the original H.B. 72 discloses that the word 'or' was not in the bill when introduced. From all this, we can only conclude that there was no clerical error or inadvertent omission and it was passed by the legislature as it intended from the very beginning. We presume it was at least read by every member of the legislature and subjected to searching committee analysis. The procedure of enactment of a statute may be considered in its construction. Manning & Martin v. State Board of Equalization, 1943, 58 Wyo. 425, 431, 133 P.2d 373, 374. We may examine the legislative journals to determine whether or not the action in question is, in fact, the act passed by the legislature. State ex rel. City of Cheyenne v. Swan, 1897, 7 Wyo. 166, 51 P. 209, 40 L.R.A. 195, 75 Am.St.Rep. 889.

The subsections with which we are concerned have been in effect for a period over 12 years and the legislature has not by way of amendment seen fit to supply an 'or' as a part of the subsection. In Bessey v. Board of Educational Lands and Funds, 1970, 185 Neb. 801, 178 N.W.2d 794, it was said that a court cannot, under the guise of its powers of construction, rewrite a statute, supply omissions, or make other changes and this is particularly true where it appears, as here, that the matter was intentionally omitted. Since those extrinsic aids eliminate error, we proceed on to rules of grammatical interpretation.

Webster defines 'or' as a function word to indicate (1) an alternative between different or unlike things, states or actions; (2) choice between alternative things, states or courses. The word 'or' is ordinarily used as a disjunctive generally corresponding to 'either' as 'either this or that.' People v. Smith, 1955, 44 Cal.2d 77, 279 P.2d 33. Where two clauses or phrases are expressed in the disjunctive, they are coordinate and either is applicable to any situation to which its terms relate. Shields v. Shields, 1943, 115 Mont. 146, 139 P.2d 528. Generally, use of the disjunctive indicates alternatives and requires separate treatment of those alternatives, hence a clause following a disjunction is considered inapplicable to the subject matter of the...