Henson v. Money

Donald L. Corbin, Judge.

This is an appeal in an adoption case from the probate court of Desha County. The appellant, Gary Kenneth Henson, is the natural father of Gary Kenneth Henson, II, the minor adoptive child. The appellees are the former Mrs. Henson (Betty Sue Money) and her present husband, Dr. William L. Money. The court in its final order of adoption ruled that pursuant to Ark. Stat. Ann. § 56-207 (a)(2) (Supp. 1979) appellant for a period of at least one year had failed to significantly, without justifiable cause, provide for the care and support of the minor child as required by the terms of an Oklahoma divorce decree dated July 28, 1972; and that the consent of the appellant as father of the minor child was not required in the adoption proceedings.

Appellant raises one point on appeal:

THE COURT ERRED IN GRANTING THE PETITION FOR ADOPTION BECAUSE THE APPEL-LEES DID NOT ESTABLISH BY CLEAR AND CONVINCING EVIDENCE THAT THE APEL-LANT FAILED SIGNIFICANTLY TO SUPPORT OR COMMUNICATE WITH THE MINOR CHILD WITHOUT JUSTIFIABLE CAUSE FOR A PERIOD OF MORE THAN ONE YEAR.

The statute that is the basis for this action is:

Ark. Stat. Ann. § 56-207(a) (2) (Supp. 1979). Persons as to whom consent and notice not required. — (a) Consent to adoption is not required of:

(2) a parent of a child in the custody of another, if the parent for a period of at least one [ 1 ] year has failed significantly without justifiable cause (i) to communicate with the child or (ii) to provide for the care and support of the child as required by law or judicial decree.

A recent line of cases interprets this provision of the revised Uniform Adoption Act of Arkansas. In Harper v. Caskin, 265 Ark. 558, 580 S.W. 2d 176 (1979), the Court required that a party seeking to adopt a child without the consent of a natural parent bears the heavy burden of proving by clear and convincing evidence that the parent has failed significantly and without justifiable cause to communicate with the child or to provide for the care and support of the child as required by law or judicial decree. The clear and convincing standard was reaffirmed in Pender v. McKee, 266 Ark. 18, 582 S.W. 2d 929 (1979). This case further interprets the statute to hold:

The question was whether the father has “failed significantly” for a period of one year to support his child “without justifiable cause.” “Failed significantly” certainly does not mean “failed totally.” It only means that the failure to support must be significant, as contrasted with an insignificant failure. It denotes a failure that is meaningful or important.

Here, the court found there was sufficient evidence to support its findings that appellant had failed significantly to support his son. There was no evidence to show that the appellees’ conduct precluded appellant from making his support payments directly to the Oklahoma court clerk pursuant to the provisions of the Oklahoma divorce decree. In fact, appellant admitted to a substantial income and that he voluntarily chose not to pay the support “out of spite” to his former wife, one of the appellees herein. The trial court found this refusal to pay support to be an arbitrary act without just cause or adequate excuse. See Roberts v. Swim, 268 Ark. 917, 597 S.W. 2d 840 (Ark. App. 1980).

Rule 52(a) of the Arkansas Rules of Civil Procedure provides that the findings of fact by a trial judge shall not be set aside unless clearly erroneous (clearly against the preponderance of the evidence). We find no error by the trial judge. The sporadic payments by the appellant father and his avowed reason of spite in not paying child support for a 51-week period, when financially capable of doing so, places this case squarely within the four corners of Pender v. McKee, supra. The test of the statute was met if the child’s father failed, in a meaningful or important aspect, to support him, without justifiable cause, for any consecutive period constituting a total of one year between the time of the divorce decree on July 28, 1972, and the time of the filing of the petition for adoption on the 9th day of April, 1979. Delinquency in support is not an ambulatory thing which can be recalled, cancelled out or nullified merely by a change of the father’s mind or desire. Pender v. McKee; supra. Resumption of payment of support for a brief period, particularly after commencement of the adoption proceeding or just prior thereto, is not sufficient to bar an adoption without the consent of the delinquent father by starting a new one-year period of non-support under the statute. Pender v. McKee, supra.

The probate judge correctly held that the consent of this father was not required.

Affirmed.

Glaze, Cloninger and Cooper, JJ., dissent.