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. Shortly 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 receive, income from sale of several pieces of marital property, 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 granted, 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 petition 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 compelling 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 maintains 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 terminated 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 contributed 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 convincing 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 payments 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 termination of parental rights under 40-8-1 l) a v , MCA, is 

less than the standard of proof to terminate joint custody, 

and that joint custody cannot be terminated under this statute. (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 

40-8- (1) (a) (v) , MCA, is not limited to parents of any 

particular type of custodial status. - Any parent who is able 

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, although the attorney for the mother and her new husband filed. 

a brief on the day of the hearing on the motions. The natural 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 supporting documents. Within ten days thereafter the 

adverse party shall file an Answer Brief which also 

may be accompanied by appropriate supporting documents. 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 submitted 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 responsive 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 conclusions. 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 mother'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 parental 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.