No. 87-504
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988
IN RE THE ADOPTION OF S.E.,
A Minor Child.
APPEAL FROM: District Court of the Fourth Judicial District
In and for the County of Missoula
The Honorable James B. Wheelis, Judge presiding
COUNSEL OF RECORD:
For Appellant:
Michael Sol; Sol & Wolfe, Missoula, Montana
For Respondent:
Bruce Barrett, Missoula, Montana
Submitted on Briefs: March 31, 1988
Decided: May 9 , 1988
Filed: MAY 9 - 1988
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
The natural father's parental rights were terminated by
the District Court for the Fourth Judicial District, Missoula
County. He appeals. We affirm.
We restate the issues as:
1. Did the District Court have jurisdiction over this
proceeding?
2. Were the correct standards used in terminating the
natural father's parental rights?
3. Did the District Court improperly deny the natural
father's post-hearing motions?
4. Did the District Court err in refusing to grant a
new trial based on surprise testimony?
5. Was the mother estopped from claiming that the
natural father had failed to contribute to S.E.'s support for
one year?
The marriage of S.E.'s natural parents was dissolved in
December 1985, when S.E. was 16 months old. The dissolution
order provided that the parents would share joint custody of
S.E., with the mother as primary physical custodian. The
natural father was granted visitation rights and was ordered
to pay $200 per month in child support.
In April 1987, the mother's new husband filed a petition
to adopt S.E. with the mother's consent. The petition asked
that the natural father's parental rights be terminated
because he had failed to support S.E. for a period of one
year. This petition was filed in the same judicial district
as the dissolution but as a separate cause of action. Short-
ly thereafter, the natural father filed a motion in the
dissolution cause to hold the mother in contempt of court for
terminating his visitation rights. The dissolution court
entered a stipulated visitation order pending resolution of
the adoption proceedings.
At the hearing on the petition for adoption, evidence
was presented that the natural father had paid a total of
$250 toward S.E.'s support during the 17 months since the
dissolution of marriage. The court found that the natural
father had been unemployed or employed less than full time in
the year preceding the filing of the petition, but that he
was not physically or mentally disabled and had not sought
employment in all fields in which he was qualified. It
further found that he had received, or was entitled to re-
ceive, income from sale of several pieces of marital proper-
ty, yet none of this income was paid toward the support of
S.E.
The court concluded that the natural father's consent to
the adoption was not required under 5 40-8-111, MCA, which
provides :
(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; ...
A final decree of adoption will be granted if the court finds
that the adoption is in the "best interests of the child"
under S 40-8-123(1) or 40-8-124(6), MCA. The petition to
terminate parental rights and for adoption of S.E. was grant-
ed, and the natural father appeals.
I
Did the District Court have jurisdiction over this
proceeding?
While the petition for adoption was filed in the same
judicial district as the parents' dissolution of marriage, it
did not come before the same judge. The natural father
argues that only the court having jurisdiction over the
dissolution proceedings should be able to consider the peti-
tion to terminate his parental rights.
No such jurisdictional requirement appears in or is
implied by the statutes. The statutes only provide that
venue for a proceeding for adoption lies in the district
court of the county where the petitioner resides. Section
40-8-107, MCA. We will not impose the requirement suggested
by the natural father where it has not been imposed by the
legislature.
I1
Were the correct standards used in terminating the
natural father's parental rights?
The natural father raises several arguments that the
standard used to terminate parental rights under 5 40-8-111,
MCA, is not strict enough. He first asserts that a compel-
ling state interest is required to terminate the fundamental
right of parenthood. He argues that the "best interest of
the child" test should not be used to choose between the
natural parent and a prospective adoptive parent. He main-
tains that the question of whether parental rights should be
terminated should not be left to the discretion of district
court judges, but should be subject to a higher standard such
as clear and convincing evidence or proof beyond a reasonable
doubt. Finally, he argues that parental rights in a joint
custody cannot be terminated in an adoption proceeding.
The natural father erroneously characterizes the
determination of whether his parental rights should be termi-
nated as a "best interest" question. That is not the case.
The "best interest" test is applied under § 40-8-123 or 124,
MCA, after the parental rights have been terminated, in
determining whether the adoption should be allowed.
The District Court concluded that the natural father's
consent to the adoption was not necessary under 5 40-8-111
(1)(a) (v), MCA, because the natural father had not contrib-
uted to S. E. ' s support during a period of one year prior to
the filing of the petition for adoption. We have held that
the standard of proof under this section is clear and con-
vincing evidence. Matter of Adoption of E.S.R. (Mont. 1985),
706 P.2d 132, 133, 42 St.Rep. 1448, 1450. The undisputed
testimony was that the natural father was unemployed or
self-employed cutting firewood at $60 a week for much of the
time since the dissolution of marriage. He did not seek
assistance from any employment agency in finding work and did
not apply for jobs in the janitorial or sales field, in both
of which he had worked previously. He did not contribute his
income from sale of marital assets to S.E. 's support. The
ledger kept by the clerk of court shows child support pay-
ments of $100 in December 1986, and three $50 payments, one
each in January, February, and April of 1987. Section
40-8-111, MCA, requires a parent to remain current within one
year on support payments. Matter of Adoption of R.A.S.
(Mont. 1984), 679 P.2d 220, 223, 41 St.Rep. 451, 454-55.
After reviewing the evidence, we conclude that clear and
convincing evidence supports the finding that the natural
father was able to contribute to S.E. 's support but did not
do so for over a year.
The court then separately concluded that "[aldoption of
the minor child by Petitioner and termination of the natural
father's parental rights is in the best interests of the
minor child." That conclusion is not technically correct.
After the determination is made under S 40-8-lll(1) (a)(v),
MCA, that the natural parent's consent to the adoption is not
necessary, the remaining issue is whether the adoption by the
petitioner is in the best interests of the child. We order
stricken that portion of the lower court's conclusion stating
that "and termination of the natural father's parental
rights" is in the best interest of the minor child. With
that modification, we conclude that the District Court used
the proper standards under our statutes.
The natural father argues that the standard for termina-
tion of parental rights under 4 0 - 8 - 1 l ) a v , MCA, is
less than the standard of proof to terminate joint custody,
and that joint custody cannot be terminated under this stat-
ute. (The standard for termination of joint custody is found
at S 40-4-219, MCA.) That argument is refuted by the above
discussion of the clear and convincing evidence standard
under this statute. Additionally, the language of S
4 0 - 8 - (1)(a)(v), MCA, is not limited to parents of any
particular type of custodial status. - parent who is able
Any
to support his child but does not do so for a period of one
year forfeits the right to withhold consent to the adoption
of his child.
The argument that parental rights are fundamental and
that (5 40-8-111, MCA, unconstitutionally allows them to be
abridged without proof of a compelling state interest was not
noticed for certification to the Montana attorney general as
required by Rule 38, M.R.App.P. For that reason, and because
the issue was not squarely presented in the briefs before
this Court or before the court below, we decline to consider
this argument.
Did the District Court improperly deny the natural
father's post-hearing motions?
The natural father made post-hearing motions to alter or
amend the court's judgment, for a new trial, and to stay
execution of judgment until resolution of the appeal. No
responsive briefs were filed within the time allowed, al-
though the attorney for the mother and her new husband filed.
a brief on the day of the hearing on the motions. The natu-
ral father argues that his motions should have been granted
under Rule 2, Montana Uniform District Court Rules. That
rule provides:
(a) Upon filing a motion or within five days
thereafter, the moving party shall file a Brief.
The Brief may be accompanied by appropriate sup-
porting documents. Within ten days thereafter the
adverse party shall file an Answer Brief which also
may be accompanied by appropriate supporting docu-
ments. Within ten days thereafter movant may file
a Reply Brief or other appropriate responsive
documents.
(b) Failure to File Briefs. Failure to file
Briefs may subject the motion to summary ruling.
Failure to file a Brief within five days by the
moving party shall be deemed an admission that the
motion is without merit. Failure to file an Answer
Brief by the adverse party within ten days shall be
deemed an admission that the motion is well taken.
Reply Briefs by movant are optional and failure to
file will not subject a motion to summary ruling.
(c) Oral Argument. The Court may order oral
argument sua sponte or upon application of a party.
(d) When Motion Deemed Submitted. Unless
oral argument is ordered, or unless the time is
enlarged by the Court, the motion is deemed submit-
ted at the expiration of any of the applicable time
limits set forth above without supporting Briefs
having been filed.
If oral argument is ordered the motion will be
deemed submitted at the close of argument unless
the Court orders additional Briefs in which case
the motion will be deemed submitted as of the date
designated as the time for filing the final Brief.
(e) In the event of conflict, the Montana
Rules of Civil Procedure shall control. Time
computation shall be governed by Rule 6 (a),
M.R.Civ.P.
The court granted the stay of execution because no
responsive brief was timely filed under Rule 2. However, it
refused to grant the other motions, stating that they related
to its determination of the facts and the absence of a re-
sponsive brief did not change its determination of the facts.
We agree with the District Court. The motion to alter or
amend the judgment challenged the court's findings and con-
clusions. The motion for a new trial was based on alleged
surprise testimony which, as discussed below, was not of
enough importance to be included in the court's findings and
conclusions. We hold that in this situation, the absence of
answer briefs did not compel the court to grant the
post-trial motions.
IV
Did the District Court err in refusing to grant a new
trial based on surprise testimony?
The "surprise testimony" was the mother's statement that
S.E. was suffering from nightmares which appeared to be
triggered by her natural father's visitation. The natural
father argues that a psychological evaluation is necessary to
prove or refute this testimony.
The factors required for a new trial based on surprise
are: 1) actual surprise, 2) the facts had a material bearing
on the case, 3) the court's decision mainly rested on these
facts, 4) the surprise did not result from the moving party's
inattentiveness or negligence, 5) the motion for new trial
was promptly filed, 6) the moving party acted reasonably at
the time of the surprise, and 7) the result of a new trial
would probably be different. Ewing v. Esterholt (Mont.
1984), 684 P.2d 1053, 1057, 41 St.Rep. 1095, 1098. After
reviewing the transcript, we conclude that the testimony
about the nightmares was not a pivotal factor in this case.
This testimony was not even mentioned in the lower court's
findings. We conclude that the natural father has failed to
meet the seventh element necessary for a new trial on the
basis of surprise. We hold that the lower court did not err
in refusing to grant a new trial based on surprise testimony.
v
Was the mother estopped from claiming that the natural
father had failed to contribute to S.E.'s support for one
year?
The natural father stated this issue as whether the
mother was estopped from consenting to the termination of his
parental rights. Section 40-8-111, MCA, requires the moth-
er's consent to the adoption of S.E. by her new husband, not
to the termination of the natural father's parental rights.
Therefore, we have restated the issue.
The natural father testified at trial that he had not
made child support payments for some of the period since the
dissolution because the mother had told him she wanted to
"make it" on her own and that she was not worried about
payments while he was unemployed. He testified that at one
point he offered her $1,200 from the sale of some property,
but she refused the money. He argues that, for this reason,
she is estopped from consenting to termination of his paren-
tal rights for nonsupport.
The mother's testimony was that she told the natural
father he must make support payments through the clerk of
court, not directly to her. She also testified that she may
have told him that she didn't expect child support while he
wasn't working, but that she did expect to receive it when he
was working.
In an area of conflicting testimony such as this, the
trier of fact is entitled to determine which testimony to
believe. It was entirely within the court's purview to rely
on the mother's testimony on this issue. We conclude that
equitable estoppel did not bar the claim that the natural
father had failed to pay support, although able, for a period
of one year.
Affirmed.