NO. 83--175
IN THE SUPREME COURT OF THE STATE OF MONTANA
1984
IN THE MATTER OF THE
ADOPTION OF R.A.S.
APPEAL FROM: District Court of the Third Judicial District,
In and for the County of Deer Lodge,
The Honorable Robert J. Boyd, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Michael J. McReon argued, Anaconda, Montana
For Respondent:
Knight, Dahood, McLean & Everett; David M. McLean
argued, Anaconda, Montana
Submitted: 1/19/84
~ecided: 3/26/84
;(ififl \: y3g4
Filed:
Clerk
Mr. Justice L.C. Gulbrandson delivered the Opinion of the
Court.
The natural father, W.A.S., appeals from an order of
the District Court, Third Judicial District, Deer Lodge
County, allowing the adoption of his minor son, R.A.S.,
without the consent of the natural father. We affirm.
The natural father and the natural mother were married
on August 9 , 1975. A minor son, R.A.S., was born as issue
of the marriage on November 23, 1977.
The marriage between the natural father and mother was
dissolved on March 16, 1979 in the Thirteenth Judicial
District, Yellowstone County. Custody of the child was
awarded to his mother, with his natural father being ordered
to pay $150 per month child support through the office of
the Clerk of Court, Yellowstone County. The parties
voluntarily vacated the requirement to pay child support
through the Clerk of Court and, instead, support payments
were made directly to the natural mother. The adoptive
father, W.K.D., and the natural mother were married on April
25, 1981.
The child support payments were due on the first day
of every month. The appellant, natural father, paid the
child support each month from the time of the divorce
through the month of June, 1981. No support payment was
made in July, 1981. In August, 1981, the appellant made an
additional $150 child support payment which was credited to
his obligation for July, 1981 that had not been timely paid.
Thereafter, on or about December 20, 1981, a payment of $450
was made which was credited to back support payments due for
August, September and October of 1981. No further support
payments were r e c e i v e d by t h e n a t u r a l mother p r i o r t o the
adoptive f a t h e r ' s f i l i n g of a p e t i t i o n f o r t h e a d o p t i o n of
the child on December 2, 1982. In addition, no child
support payments have been made since the filing of the
p e t i t i o n f o r adoption.
A t trial, t h e D i s t r i c t Court determined t h a t during
t h e p e r i o d from November, 1981 t h r o u g h November, 1982, t h e
appellant, natural father, was gainfully employed and
financially capable of making the required child support
payments b u t v o l u n t a r i l y c h o s e n o t t o do s o . As a result,
t h e D i s t r i c t Court held t h a t t h e consent of t h e a p p e l l a n t t o
t h e p e t i t i o n f o r a d o p t i o n was n o t r e q u i r e d p u r s u a n t t o t h e
p r o v i s i o n s of S e c t i o n 4 - 8 - l l l ( l ) ( a ) ( v ) , MCA, and t h e b e s t
interests of the child would be served by granting the
petition.
In pertinent part, Section 4-8-lll(l)(a)(v), MCA,
provides:
" ( 1 ) An a d o p t i o n o f a c h i l d may b e
d e c r e e d when t h e r e h a v e b e e n f i l e d
w r i t t e n c o n s e n t s t o a d o p t i o n e x e c u t e d by:
" ( a ) both p a r e n t s , i f l i v i n g , o r t h e
s u r v i v i n g p a r e n t of a c h i l d , p r o v i d e d
t h a t c o n s e n t is n o t r e q u i r e d from a
f a t h e r or mother:
" ( v ) i f it is proven t o t h e s a t i s f a c t i o n
of t h e c o u r t t h a t t h e f a t h e r o r m o t h e r ,
i f able, has not contributed t o the
s u p p o r t of t h e c h i l d d u r i n g a p e r i o d of 1
y e a r b e f o r e t h e f i l i n g of a p e t i t i o n f o r
adoption . . ."
At trial, t h e a p p e l l a n t a r g u e d t h a t t h e $450 payment
made on December 20, 1 9 8 1 , was made d u r i n g t h e p e r i o d of one
y e a r b e f o r e t h e f i l i n g of t h e p e t i t i o n on December 2, 1 9 8 2 ,
and therefore his consent to the a d o p t i o n was necessary.
However, the District Court held that the word "support"
indicates a continued monetary contribution on a specified
basis. Thus, appellant's support obligation was not made on
a continuing basis and by giving credit to the appellant for
the $450 payment made on December 20, 1981, the District
Court determined that no support was made "during" the
period of one year before the filing of the petition for
adoption. From that determination, the natural father
appeals.
Appellant raises one issue on appeal: Did the
District Court err in holding that the consent of the
appellant was not necessary in granting the petition for
adopt ion?
Appellant argues that he contributed to the support of
the child "during" the one year period before the filing of
the petition for adoption was filed December 3, 1982.
Appellant points out that child support in the sum of $450
was paid on or about December 20, 1981. Appellant asserts
that Section 4-8-lll(l)(a)(v), MCA, must be strictly
construed in favor of the appellant and a literal
construction of the statute compels the Court to reverse the
District Court because appellant made a payment within one
year prior to the filing of the petition of adoption.
Respondent maintains that if the argument of the
appellant is accepted, a noncustodial parent could defeat
the adoption of his natural child by merely making a portion
of one payment on the same date each year. Thus, respondent
asserts, to allow the statute to be interpreted and
construed in this manner would be ludicrous and contrary to
legislative intent.
The central issue in this case is whether the
appellant has not contributed to the support of the minor
child during a period of one year prior to the filing of the
petition for adoption.
In adoption cases the initial threshold requirement is
statutory compliance. In the Matter of the Adoption of
Smigaj (1977), 171 Mont. 537, 560 P.2d 141. Thus, Section
4-8-lll(1) (a)(v), MCA, sets forth a two-pronged test to
determine whether the natural parent's consent is required
for adoption. First, it must be determined whether the
nonconsenting parent has not contributed to the support of
the child during a period of one year prior to the filing of
the petition for adoption and,second, it must be determined
whether the nonconsenting parent had the ability to
contribute to the child's support. In the Matter of the
Adoption of S.L.R. (Mont. 1982), 640 P.2d 886, 39 St.Rep.
156. The burden rests on the petitioner to show that the
requirements of Section 4-8-lll(l)(a)(v), MCA, have been
met and, because of the harshness of permanently terminating
parental rights, strict compliance with the statute is
required. In the Matter of Challeen (1977), 172 Mont. 362,
563 P.2d 1120; in re Adoption of Biery (1974), 164 Mont.
353, 522 P.2d 1377.
In the present case, appellant admitted that he had
the ability to make the required child support payments.
The second phrase of the statute, ". . . has not contributed
to the support of the child during a period of one year
before the filing of the petition . . . ," precipitates the
present dispute. There is no dispute that the support of
the child was paid to the month of August, 1981. It is
further without dispute that a payment of $450, which
brought the payments up to November 1, 1981, was made on or
about December 21, 1981, some eleven months and eighteen
days before the filing of the petition for adoption. The
appellant contends the payment was made ". . . during a
period of one year before the filing of the petition for
adoption . . ."
Our basic policy in adoption cases has been " . . .a
statute should not be interpreted in favor of a father who
seeks the benefit of parental rights but shuns the burden of
parental obligatons." In Re Burton's Adoption (1956), 146
Cal.App.2d 125, 305 P.2d 185, 191; cited with approval, -
In
the Matter of the Adoption of S.L.R., supra. Accordingly,
the District Court noted that appellant ". . . was able to
support his minor son, but voluntarily chose a course of
action involving a new lifestyle and self-inflicted
alcoholism to cause him to forego both support and
visitation of his child." As we noted in In the Matter of
the Adoption of S.L.R., supra, "[tlhe father voluntarily
chose a lifestyle inconsistent with his parental
obligations. That he had the right to choose such a
lifestyle is conceded. That he had a legal right to prevent
the adoption of his child, however, is not consistent with
his voluntary failure to contribute to the child's support."
There is no Montana case law specifically construing
the word "during" for the purpose of child support payments.
However, in State ex rel. Palagi v. Regan, County Clerk
(1942), 113 Mont. 343, 126 P.2d 818, the Court said the
legislature is presumed to have understood the elementary
rules of construction of the English language, and a statute
must be construed according to the context and approved
useage of t h e language. B l a c k ' s Law D i c t i o n a r y , 5 t h Ed., p.
453 defines "during" as: "throughout the course of;
throughout the continuance; i n the t i m e of." We note that
a p p e l l a n t s t a t e d a t t r i a l t h a t h e made t h e December, 1981,
payment of $450 because he was behind on his payments.
Thus, h e d i d n o t i n t e n d t h e payment t o b e "throughout t h e
course of" a one y e a r period prior to t h e f i l i n g of the
petition of adoption. In addition, we stated in In the
Matter of t h e Adoption of Smigaj, supra, that t h e word
"supportt1 i n t h e c o n t e x t of the consent s t a t u t e s r e f e r s t o
t h e " f i n a n c i a l s u p p o r t t h a t a p a r e n t owes a c h i l d . " In the
case a t bar, the support paid on December 20, 1981, was
a c t u a l l y d u e and owing f o r p r e v i o u s m o n t h s . Thus, i t was
n o t a c t u a l l y "supportt1 a s contemplated within t h e adoption
statutes "during" the year prior to the filing of the
p e t i t i o n of a d o p t i o n . W e hold t h a t t o construe t h e s t a t u t e
as requiring the nonconsenting parent to remain current
w i t h i n o n e y e a r on h i s o r h e r s u p p o r t p a y m e n t s i s i n a c c o r d
w i t h t h e p o l i c y of t h e a d o p t i o n s t a t u t e s and t h e i n t e n t o f
the legislature. A c c o r d i n g l y , t h e payment made by a p p e l l a n t
on December 20, 1 9 8 1 , was n o t " s u p p o r t " c o n t r i b u t e d d u r i n g a
p e r i o d o f one y e a r p r i o r t o t h e f i l i n g of t h e p e t i t i o n f o r
a d o p t i o n and t h e r e f o r e t h e j u d g m e n t o f t h e D i s t r i c t C o u r t i s
a f f irmed.
We concur:
Justice
Chief Justice Frank I. Haswell deems himself disqualified
and does not participate in this decision.
Mr. Justice Daniel J. Shea dissents and will file a written
dissent later.
Mr. Justice Fred J. Weber dissents:
I respectfully dissent from the majority opinion. While
the result seems fair, I am unable to approve the statutory
construction in the opinion.
The pertinent portion of section 4-8-(1) MCA
states:
" (1) An adoption of a child may be decreed . . .
(v) if it is proven to the satisfaction of the
court that the father . . .
if able, has not
contributed to the support of the child during a
period of 1 year before the filing of a petition
for adoption; . . ."
The petition was filed on December 2, 1982. Four hundred and
fifty dollars was paid by the father for the support of the
child on December 20, 1981. Clearly such payment wa.s made
"during a period of 1 year before the filing of [the]
petition." While it is true that such payment was for a
period of time prior to 1 year, nonetheless the payment was
made during the period of 1 year before filing and therefore
meets the requirements of the statute. I believe the Black's
Law Dictionary definition as described in the majority
opinion also is met. Such payment was made by the father
"throughout the course of" 1 year before filing. Such
payment also was made "throughout the continuance" of 1 year
before the filing. Last, such payment also was made "in the
time of" 1 year before the filing.
I would reverse the District Court.
D I S S E N T O F MR. J U S T I C E D A N I E L J. SHEA
No. 83-175
I N THE MATTER O F THE
A D O P T I O N O F R.A.S.
CLERK OF SUBREPilE COURT; ;
STATE OF fblONTAHA
Mr. Justice Daniel J. Shea, dissenting:
I dissent. In terminating parental rights, all
reasonable constructions of the statute must be made in favor
of non-termination and strictly construed against the state.
Section 40-8-111(1), MCA, is essentially a penal statute
because it forever terminates the right of the natural-
parent. As such, it should be construed in favor of
non-termination.
Also, the statute's language is ambiguous: "during a
period of 1 year before the filing of the petition of
adoption" is susceptible of various interpretations, and begs
abuse. Whatever the conduct of the parents, the result will
be a forced termination of the parent-child relationship. It
is a travesty that troubles between warring parents should be
visited upon innocent children. There are better and more
equitable remedies available to the parties for temporary
nonsupport than permanent termination of parental rights.
I explained the pitfalls with this statute nearly three
years ago in my dissent in In the Matter of S.L.R. (1982),
196 Mont. 411, 416, 640 P.2d 886, 888-889.
I would reverse the Distr