No. 86-322
IN THE SUPREME COURT OF THE STATE OF MONTANA
1986
IN THE MATTER OF THE ADOPTION OF
K.L.J.K., A minor.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable G. Todd Eaugh, Judge presidinq.
COUNSEL OF RECORD:
For Appellant:
Glenn R. Kanvick, pro se, Rillings, Montana
For Respondent:
Dunaway, OIConner & Moe; William J. O'Connor, 11,
Billings, Montana
Submitted on Briefs: Oct. 30, 1986
Decided: December 29, 1986
DEC 2 9 1986
Filed.:
- .-
Clerk
Mr. Justice Frank R . Morrison, Jr. delivered the Opinion of
the Court.
The natural father of K.L.J.K. appeals the May 2 , 1986,
order of the Thirteenth Judicial District Court terminating
his parental rights and decreeing the adoption of R.J,.J.K. by
her natural mother's new husband. We affirm.
The marriage of K.L.J.K.'s natural parents was dissolved
February 14, 1983. The mother was awarded custody of
K.L.J.K. The father, G.R.K., was ordered to pay $100 a.
month in child support until finding employment or June 1,
1983, whichever occured first. Thereafter, he was to pay
$175 per month.
The father, a frequently unemployed construction worker,
has been remiss regarding his child support obligation since
the beginning. He has been held in contempt of court and
incarcerated for his failure to make the support payments.
Efforts by G.R.K. to have his support obligation reduced have
not been successful. In October of 1984, he was found to owe
$3,336.58, in child support. No support paymentc have been
forthcoming since May of 1984.
In October of 1985, the natural mother petitioned the
court for the termination of G.R.K.'s parental rights. Her
new husband then petitioned the court to adopt K.L.J.K.
G.R.K.'s request for a court-appointed attorney of his
choosing was denied. G.R.K. has therefore appeared pro se.
Following several hearings on the petitions and the filing of
numerous briefs and memoranda by the parties, the trial judge
held that because K.L.J.K.'s natural father had failed to
make child support payments for at least one year prior to
the filing of the petitions, despite his ability to do so,
his daughter could be a-dopted without his permission pursuant
to S 4-8-11 1 ( a ( 7 , MCA. The trial judge terminated
G.R.K.'s parental rights, then found that adoption by her
natural mother's husband would be in K.L.J.K. 's best
interests and granted the petition to adopt.
Numerous issues are raised on appeal.
1. Is G.R.K.'s constitutional right to equal protection
abridged by the requirement that he make child support
payments despite being denied visitation rights with his
daughter?
2. Did the District Court err by not giving credit for
in-kind child support payments?
3. Did the District Court fai-1 to provide G.R.K. with a
fundamentally fair hearing by:
a. refusing his request for court-appointed counsel;
b. failing to provide adequate notice of the hearings
in this matter; and
c. making a ruling based on improper find-ings?
4. Is 4-8-llll((a)(v), MCA, unconstitutionally
vague ?
We take this opportunity to reaffirm our decision in
State, ex rel. Dewyea v. Knapp (Mont. 1984), 674 P.2d 1104,
41 St.Rep. 143, that one's obligation to provide child
support is in no way connected with one's right to
visitation. Section 40-5-124, MCA, states in part:
... The determination or enforcement of a duty of
support owed to one obligee is unaffected by any
interference by another obligee with rights of
custody or visitation granted by a court.
Because the responsibility to provide child support is not
interchangeable with the right to visit one's child, there
can be no equal protection problem in requiring that child
support obliqations be met despite the denial of visita.tion
rights.
We also reaffirm our decision in Tn the Matter of the
Adoption of S.L.R. (1982), 196 Mont. 411, 640 P.2d 886, that
the providing of articles of clothing or other in-kind
payments does not satisfy a parent's obligation to contribute
to the financial suppport of his or her child.
Next, there is no constitutional or statutory
requirement that an indigent party be provided with
court-appointed counsel in a civil proceeding. The Court has
reviewed the cases cited by G.R.K. in support of his request
for court-appointed counsel and finds that each involves a
situation where the State is seeking to terminate parental
rights pursuant to criminal statutes. They are not civil
matters. See Lassiter v. Dept. of Social Services (3981),
452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640.
The fundamental requirements for due process axe "notice
snd opportunity for hearing appropriate to the nature of the
case." Mullane v. Central Hanover Bank & Trust Co. (1950),
339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865. G.R.K. received
adequate notice of each hearing held in this matter, appeared
at each hearing and presented evidence and testimony in
support of his position. We find no violation of G.R.K.'s
right to due process of the laws.
The remaining issues raised by appellant require close
scrutiny by this Court. G.R.K. contends (5 40-8-111 (1)(a) (77) ,
MCA, is unconstitutional because of its vagueness. Respondent
contends that this issue was not raised at the lower level.
Therefore, we should not consider it on appeal. Respondent
has apparently disregarded a memorandum filed by G.R.K. in
the lower court the morning of May 5, 1986, wherein the
precise issue was raised and discussed. However, the
Attorney General ' s office has never been notified of the
constitution81 challenge to the statute as required by
Rule 38, M.R.App.Civ.P. Because appellant failed to timely
raise the issue in the lower court and because the Attorney
Genera.llsoffice has not been given an opportunity to appear
in this matter, we refuse to decide the constitutionality of
f; 40-8-111 (1)(a) (v), MCA.
Nevertheless, if the statute is in fact vague,
objections other than those of a constitutional nature may be
made. Courts must refuse to enforce legislation which is
deemed too uncertain to be applied. However, Courts are
granted the liberty of construing uncertain statutes in a
reasonable manner, keeping in mind the intent of the
legislature. Nice v. State (1973), 161 Mont. 448, 507 P.2d
527. See also McClanathan v. Smith (1980), 186 Mont. 56, 606
P.2d 507. We take that liberty here.
Section 40-8-111 (1)(a)(v), MCA, states:
Consent required for adoption. (1) An adoption of
a child may be decreed when there have been filed
written consents to adoption executed by:
(a) both parents, if living, or the surviving
parent of a child, provided that consent is not
required from a father or mother:
(v) if it is proven to the satisfaction of the
court that the father or mother, 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.- (Emphasis supplied.)
G.R.K. objects to the term "support", contending that it
is vague. We also have problems with the term "able".
We have previously construed "support1'to be " financial
support that a parent owes a child". In the Matter of the
Adoption of Smigaj (1977), 171 Mont. 537, 560 P.2d 141.
Later, in In the Matter of the Adoption of R.A.S. (Mont.
1984), 679 P.2d 720, 41 St.Rep. 451, we held that even if a
parent had made a child support payment less than twelve
months prior to the filing of an adoption petition, the
payment would not trigger the consent requirement if it was
actually applied to child support due and owing for more than
twelve months prior to the filing of the petition.
These decisions are consistent with the importance of
child support. They give notice to parents that they must
provide more than token support once or twice a year or risk
having their parental rights terminated. However, because of
this definition of "support", we must be especially careful
in determining whether a parent is "able" to contribute to
the support of the child. Otherwise, parents who forego a.11
but the necessities of life in order to make partial child
support payments might be unfairly penalized.
Caution must be exercised when determining who is "able"
to contribute to the support of their child. We recently
affirmed a lower court's determination that the "statutory
ability to pay child support cannot be determined solely by
the natural parent's income." The ability to contribute must
also take into account the parent's ability and desire to
earn an income. In the Matter of The Adoption of B.L.P.
,
(Mont. 1986), - P.2d - 43 St.Rep. 2116. In that case,
the father left a stable job for a potentially more lucrative
position. The second job failed to materialize. The lower
court found, and we agreed, that the father's financial
priorities did not include providing child support, despite
his ability to do so.
Conversely, when determining whether a parent is "able"
to contribute support to the child, we must also examine the
parent's willingness to work and willingness to meet only his
basic needs before providing for his child. Thus, in
determining whether a parent is "able" to contribute to the
support of the child, the trial judge must examine several
factors, includinq:
1) The parent's ability to earn an income;
2) The parent's willingness to earn an income and
support his child;
3) The availability of jobs;
4) The parent's use of his funds to provide himself
only with the bare necessities of life prior to providing
support for his child.
Applying the above factors to the case at bar, we find
no error in the lower court's determination that G.R.K. was
able to contribute to the support of his child. Exhibits
entered into evidence by G . R . K . indicate that his average
monthly income for the 12 months immediately prior to the
filing of the petition was $750. The same exhibit shows his
monthly expenses for food, utilities and rent ranged from
$455 to $530 a month. Thus, there existed, on the average,
between $220 and $295 a month from which some child support
could have been paid. G.R.K. voluntarily chose not to make
child support payments with this extra money. He therefore
must face the consequences.
There is sufficient evidence to support the decision of
the trial judge. It is affirmed.
. F
f
Justice /' ,\
--\
We Concur:
Chief Justic