Wadkins v. Holcom , 63 O.B.A.J. 389 ( 1991 )

BRIGHTMIRE, Judge.

The dispositive question for review is whether the trial court — in passing on a stepfather’s application to permit his petition for the adoption of his minor stepson, B.R.H., to go forward without the consent of the child’s natural father — has jurisdiction to “terminate” the parental rights of the objecting father.

The trial court held it did have and entered an order terminating the father’s parental rights.

We hold the court did not have such jurisdiction and vacate the order.

I

Chris Wadkins, stepfather of B.R.H., a minor son of respondent Bobbie L. Holcom, initiated this action by filing a petition asking for a decree of adoption of B.R.H. without the consent of the minor’s natural father on the ground he “has failed to contribute to the support of the child for a period of twelve (12) months immediately preceding the filing of this petition.” At the same time the petitioner filed a separate application for an order determining B.R.H. to be eligible for adoption without the consent of his father.

The father employed counsel who filed an answer in the case. The application came on for hearing. The father experienced car trouble on the way to the hearing and was stranded in Kansas. The trial proceeded with only the father’s counsel present.

The only evidence adduced by the petitioner was: (1) A divorce decree which had been entered ordering the father to pay “reasonable child support for the care and maintenance of said [unborn] child;” (2) a purported (unsigned, unfiled, and uncerti-fied) order modifying the divorce decree which was alleged to have been entered sometime after the birth of B.R.H. obligating the father to pay $200 per month child support; and (3) the testimony of the natural mother that she had not received any child support from the father for’the benefit of B.R.H. At the close of the evidence the trial court entered an order which made no predicatory findings of fact, but simply ordered that the father’s parental rights be “terminated ... and that the petitioners [sic] herein proceed with the adoption of the minor child without the consent of any other person.” ¹

The father appeals.

II

The order is void for two reasons.

First, it adjudicates an issue not raised by the pleadings, i.e., “termination” of the father’s parental rights.² The only issue before the trial court for resolution at subject hearing was the one raised in the petitioner’s application i.e., to permit the adoption proceedings to go forward without the consent of the father. Yet the only issue the court addressed in its pronouncement and order was one which did not exist — the termination of the father’s parental rights. There were no predicatory or ultimate findings on the one issue raised by the pleadings. Hence the order ran afoul of the rule that any judgment based “on a matter unsubmitted for determination is a nullity. See Spears v. Preble, 661 P.2d 1337, 1343 (Okl.1983). Moreover, there was no evidence which would have supported a termination if it had been raised.

The second reason is that such order is contrary to the public policy of this state in that, if permitted to stand, the child would legally be without a father at least until the court determined whether the adoption should be permitted, and if the adoption were to be eventually denied the child would remain fatherless indefinitely. See Merrell v. Merrell, 712 P.2d 35 (Okl.1985).

And finally, our adoption statutes contemplate that even if the adoption were to proceed without the father’s consent, he would retain standing to challenge the adoption by proving that the adoption is not in his child’s best interest. Terminating the father’s parental rights would operate to deprive him of that fundamental right.

Ill

With respect to the question of whether the evidence is sufficient to support a finding that the adoption should go forward without the consent of the natural father, it should be pointed out that the trial court made no findings of fact essential for granting the stepfather’s application.

The record indicates that the natural father never graduated from high school and did not receive vocational or rehabilitative training. After quitting school in 1978, the father held a variety of manual labor jobs in Colorado, Kansas and Oklahoma. From 1983 until 1985 he was a patient in the Colorado State Hospital receiving treatment for a mental disorder. In 1986, he was admitted to “Grant House” because the “medication wasn’t working like it was supposed to.” Since then he has stayed out of the hospital and continues to take his medicine and see his regular physician. He stated that he has even tried to work but just “can’t handle real hard pressure” even while on medication administered three times daily.

The father admitted that he had not directly provided monetary support for B.R.H. He did state, however, that he once mailed his ex-wife one support payment of $250 but it was returned to him undelivered. It is conceded that the only support for the child has been the payment of social security dependent benefits made to the mother at the father’s request.

Oklahoma law requires a noncustodial parent to support his child according to the terms of a court order or, absent such provisions, in a manner commensurate with his financial abilities. In re Adoption of C.M.G., 656 P.2d 262 (Okl.1982). When the petitioner alleged that there was a court order imposing specific child support duties upon the father, the existence and validity of such an order became a mixed question of law and fact.

Permitting the mother to testify about the details of the phantom order was among the errors committed below. What happened was this: In an effort to lay a predicate for the introduction of an unsigned and unfiled document, one that purported to be a copy of an order modifying the divorce decree after the baby was born, the petitioner attempted to elicit details of the alleged modification order from the mother on the assumption that she had “personal knowledge” of its contents. Over the father’s objection, the mother was allowed to testify concerning her “knowledge” of such purported order which is said to have been surreptitiously obtained by the mother in a district court other than the court having venue to hear the adoption petition.

The mother’s testimony and the production of an unsigned and unauthenticated ex parte modification order drew contemporaneous objection at trial when the petitioner sought to introduce the terms of the order in derogation of the rules of evidence. The trial court overruled the objection. The father again challenged the impropriety of admitting this evidence in his brief-in-chief and by motion for leave to amend his petition in error. This clearly was a decisional error with regard to an “issue presented to and resolved by the trial court which is supported by the record” and fundamental justice requires that leave of court be granted to allow the appellant to amend the petition in error to consider Proposition I. Civil Appellate Procedure Rule 1.17, 12 O.S.1981, ch. 15, app. 2.

Another problem presented by the facts is whether the Woods County divorce court even entered a valid decree of divorce between the natural mother and the natural father. The mother testified that at the-time the divorce was filed, she and the father lived in Salina, Kansas. The statutory residency requirements are, of course, jurisdictional and establishment of a domicile for a statutory period of time is a prerequisite to the court’s power to render a divorce. 43 O.S.Supp.1990 § 102;³ Meyers v. Meyers, 200 Okl. 683, 199 P.2d 819 (1948); Burnworth v. Burnworth, 572 P.2d 301 (Okl.App.1977).

Notwithstanding the fact that the divorce court prematurely awarded custody of an unborn child to the mother in an ambiguous order requiring the father to pay “after the birth of said child ... reasonable child support,” there is no evidence that the father ever received notice of any court proceeding to modify the divorce decree or to set child support in a specific amount. Absent clear and convincing evidence tending to prove that the father had support obligations under “a support provision contained in a decree of divorce ... or modification of such decree, or other lawful orders of support entered by a court of competent jurisdiction adjudicating the duty, amount, and manner of support,” the petitioner’s application for adoption without the consent of the father, if premised upon § 60.6(2)(a), must fail. We find that there is no such evidence.

IV

In the absence of a valid court order which imposes upon the noncustodial parent a clear duty to support, the obligation then becomes one of support commensurate with the parent’s financial ability. An unadjudicated support duty may be satisfied by means other than monetary contributions. Moreover the parental bond may not be severed if, during the period prescribed in § 60.6(2), the noncustodial parent contributed in any form, according to his ability, toward the child’s living expenses. In re Adoption of C.M.G., 656 P.2d 262 (Okl.1982).

Here the evidence is uncontroverted that the natural father was disabled soon after the 1983 birth of the child. In 1986 he made application for social security disability benefits and arranged for the child to receive a dependent’s allotment. This is evidence that the father had no ability to earn sufficient money to pay any child support and therefore the father was entitled to credit for the social security benefits under the circumstances of this case.

Nibs v. Nibs, 625 P.2d 1256 (Okl.1981), cited by the parties, is distinguishable from the instant case in several significant respects. In Nibs, the noncustodial father was totally disabled and receiving social security disability benefits when the divorce was granted. The decree, entered after the trial court received evidence of the father’s disability and employment income, expressly ordered the father to pay his ex-wife monthly child support but made no provision for the substitution of social security benefits for his cash obligation.

The Nibs court, in confirming the trial court’s discretionary power to consider social security payments as credits against child support, was moved by the inadequacy of the court-ordered child support payments and the fact that the father made the payments for about eight months before stopping or decreasing payments upon his remarriage.

Unlike the situation in Nibs, the instant case does not merely involve an action for contempt and request for judgment of child support in arrears. On the contrary, the petitioner’s adoption petition, if sustained by the trial court, will permanently sever the bond between the father and his child. Termination of a right so fundamental calls for application of “the full panopy of procedural safeguards.” In re Adoption of Darren Todd H., 615 P.2d 287, 290 (Okl.1980). A parent who is financially unable to provide for the support of his child and who has not voluntarily placed himself in a disabling position to avoid his parental responsibilities is not within the class of persons whose right to withhold consent is judicially extinguishable. In re Adoption of 737 P.2d 915 (Okl.1987).

Here there is no evidence that the father is voluntarily unemployed. And the evidence presented to the trial court does not establish that the father possessed financial means to contribute to his child’s support beyond social security payments. We hold that based upon the record actually presented to the trial court the social security benefits received on behalf of the child constitute satisfaction of the father’s support obligation within the meaning of § 60.-6(2), and therefore there is no basis for finding that the father willfully failed to satisfy his support obligation during the period in question. In re Adoption of C.M.G., 656 P.2d at 266.

V

Because we find no evidence in the record of the natural father’s willful failure to support his son according to his financial ability, for this and the other reasons mentioned, we vacate the void order terminating his parental rights and remand to the trial court with instructions to deny the application to proceed without the father’s consent.

REIF, P.J., concurs. MEANS, J., dissents.

1 . Although this would also include the mother, it is unimportant because the mother filed a written consent to the adoption.

2 . "Issues arise on the pleadings” both as to matters of law and fact. 12 O.S.1981 § 552.

3 . Renumbered from 12 O.S.1981 § 1272, by Laws 1989, c. 333 § 1, effective November 1, 1989.