Christofferson v. McCann

WOLLMAN, Justice

(dissenting).

In defining the term “clear and convincing evidence,” this court stated that:

“* * * The measure of proof required by this designation falls somewhere between the rule in ordinary civil cases and the requirement of our criminal procedure, that is, it must be more than a mere preponderance but not beyond a reasonable doubt. It is that measure or degree of proof which will produce in the mind of the trier of facts a firm belief or conviction as to the allegation sought to be established. Evidence need not be voluminous or undisputed to accomplish this.” Brown v. Warner, 78 S.D. 647, 653, 107 N.W.2d 1, 4.

*293In amplifying this definition of the measure of proof encompassed within the term “clear and convincing evidence,” this court stated that:

“* * * jts technical meaning has been expressed as ‘the witnesses must be found to be credible, that the facts to which they have testified are distinctly remembered and the details thereof narrated exactly and in due order, and that their testimony is so clear, direct and weighty and convincing as to enable either a judge or jury to qome to a olear conviction, without hesitancy, of the truth of the precise facts in issue.’ ” Cromwell v. Hosbrook, 81 S.D. 324, 329, 134 N.W.2d 777, 780 (citations omitted).

However loath I may be to overturn a finding of fact by the trial court, I cannot conclude that there is clear and convincing evidence in the record that appellant had given up or totally deserted his children -and there had been an absolute relinquishment by appellant of the custody and control of the children and the laying aside of all care for them, the test of abandonment established in Mastrovich v. Mavric, 66 S.D. 577, 287 N.W. 97.

It is true that appellant may not have been a model father in absentia inasmuch as he did not faithfully comply with the provisions of the divorce decree that required him to pay child support. Even in this respect, however, the evidence is equivocal that he willfully refused to make these required payments.

The trial court’s finding of fact No. XIII states:

“That JERRY C. CHRISTOFFERSON made the following communications with his children:
1. Letter in September or October 1972;
2. Card in October 1972;
3. Christmas gift in 1972;
4. Phone call in December 1972;
5. Rirthday gift to Michael in April 1973;
*2946. Birthday gift to Dalyn in July 1973- — check for $25 which was returned marked ‘account closed.’ ”

It should be noted that any adverse inferences that could be drawn from the fact that the $25 birthday check sent by appellant to his son Dalyn in July of 1973 was returned unpaid should have been completely dispelled by Judy McCann’s testimony that she had held the check for approximately one and ■ one-half months before depositing it, and by appellant’s testimony that he had left the account open from the date he wrote the check, July 20, 1973, until the middle of September of 1973, when he assumed that Dalyn was not going to get the check and then closed the account. It hardly comports with judicial fairness to penalize appellant for the failure of Dalyn’s mother to take reasonable steps to convert a father’s birthday gift check to his ten-year-old son to cash or its equivalent.

In addition to the court’s finding regarding appellant’s communications with his children during the period in question, the evidence is uncontradicted that appellant called Judy Mc-Cann in December of 1972 requesting that, his children be allowed to come to Montana to visit him during the 1972 Christmas vacation and offering to pay their transportation expense for such visit. This request was denied by Judy McCann. Although the denial may have been reasonable under the circumstances, the fact that appellant did not see his children at this time should not be used in support of a finding that appellant had abandoned his children. Indeed, this uncontradicted evidence admits only of one finding: that appellant did not intend to abandon his children.

In addition to his direct communications with Judy McCann concerning visitations with his children, appellant testified that he enlisted the aid of his sister-in-law to communicate to Judy his desire to visit the children. Judy McCann acknowledged that she had received a telephone call from appellant’s sister-in-law approximately a month and a half prior to the hearing on the petition for adoption during which the sister-in-law informed Judy that appellant would like to stop on his way through Brookings and visit his children. Granted that this visit did not materialize prior to the time the petition was filed, the uncontradicted evidence that appellant expressed an interest in *295visiting his children runs counter to a finding that he had intended absolutely to abandon them.

The cases cited in the majority opinion to support a finding of abandonment in the instant case are either based upon statutes which are materially different from SDCL 25-6-4 or upon factual situations that are so far divergent from the facts herein as to vitiate the precedential value of those holdings.

Because the record does not in my opinion support the finding that, under the test established in Mastrovich v. Mavric, supra, appellant had abandoned his children, I would reverse the judgment and remand the case with directions to dismiss the petition for adoption.