No. 87-504

INTHE SUPREME COURTOF THE STATE OF MONTANA
1988

INRE THEADOPTION OF S.E., A Minor Child.

APPEAL FROM: District Court of the Fourth JudicialDistrict In and for the County ofMissoula The Honorable JamesB. Wheelis, Judgepresiding

COUNSELOF RECORD:

ForAppellant: 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- 1988Mr. Justice Fred J. Weber delivered the Opinion of the Court.

The natural father's parental rights were terminated by the DistrictCourt 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'sparental rights? 3. Did the District Court improperly deny the natural father's post-hearingmotions? 

### 4. Did the District Court err in refusing to grant a new trialbased on surprisetestimony? 5. Was the mother estopped from claiming that the natural fatherhad failed to contributeto S.E.'s support for

oneyear? The marriage of S.E.'s natural parentswas 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 fatherwas granted visitation rights and was ordered topay $200per month in child support. InApril 1987,themother's newhusband filed apetition to adopt S.E. with themother's consent. Thepetition 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 dissolutionbut as a separate cause of action. Shortly thereafter, the natural father filed a motion in the dissolution cause tohold the mother in contemptof court for terminating his visitation rights. The dissolution courtentered a stipulated visitation order pending resolution of the adoptionproceedings. 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 fatherhad 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 courtconcluded that the natural father'sconsent 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 fatherormother:



# ... (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 apetition for adoption;

# . . . A final decree of adoptionwillbe 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 terminateparental rightsand 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 theparents' dissolution of marriage, it did not come before the same judge. The natural father argues that only the court having jurisdiction over the dissolutionproceedings 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 ofwhether parental rights should be terminated should not be left to the discretion of district court judges, but should be subject to ahigher standard such

as clear and convincing evidence or proof beyond a reasonable doubt. Finally, he argues that parental rights in a joint custody cannotbe terminated in an adoptionproceeding.The natural father erroneously characterizes the determination of whether hisparental 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 shouldbe 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. 'ssupport 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 ofAdoption 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 aweek formuch of the time since the dissolution of marriage. He did not seek assistance from any employmentagency in finding work and did not apply for jobs in the janitorial or sales field, in both ofwhich he had worked previously. He did not contributehis 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 aparent to remain currentwithin 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 ayear. The court then separately concluded that "[aldoption of the minor child by Petitioner and termination of the naturalfather'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 naturalparent's consent to the adoption is not necessary,the remaining issue iswhether the adoptionby the petitioner is in the best interests of the child. We order stricken thatportion 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 theproper standardsunder our statutes. The natural father argues that the standard for termination of parental rights under 40-8-1l) a v 

## , MCA, is less than the standard of proof to terminate joint custody, and that joint custody cannotbe terminated under this statute. (Thestandard for terminationof 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 ofhis child. The argument that parental rights are fundamental and that (5 40-8-111, MCA, unconstitutionally allows them to be abridgedwithoutproof of a compelling state interestwas not noticed for certification to the Montana attorney general as requiredby 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 courtbelow,we decline to consider this argument.Did the District Court improperly deny the natural father'spost-hearingmotions? The natural fathermade post-hearingmotions 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 themotions. The natural father argues that his motions should have been granted under Rule 2, Montana Uniform District Court Rules. That ruleprovides:

(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 adverseparty shall file anAnswer Briefwhich also may be accompanied by appropriate supporting documents. Within ten days thereaftermovantmay 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 iswithoutmerit. Failure to file anAnswer Briefby the adverseparty within ten days shall be deemed an admission that the motion iswell 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 aparty. (d) When Motion Deemed Submitted. Unless oral argument is ordered, or unless the time is enlargedby the Court,themotion isdeemed submitted at the expiration of any of the applicable time limits set forth above without supporting Briefs having been filed.

### Iforal argument isordered the motionwillbe 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 togrant the other motions, stating that they related to its determination of the facts and the absence of a responsivebrief did not change its determinationof 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-trialmotions. IV 

### Did the District Court err in refusing to grant a new trialbased on surprise testimony? The "surprise testimony"was themother'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 apsychological 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 factshad amaterial bearing

on the case, 3) 

### the court's decisionmainly rested on these facts, 4) the surprisedid not result from the moving party's inattentiveness or negligence, 5) 

### the motion for new trialwas 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 fatherhas 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 trialbased 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 motherwas estopped from consenting to the terminationofhis 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,wehave restated the issue. The natural father testified at trial that he had not made child supportpayments 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 themoney. He argues that, for this reason, she is estopped from consenting to terminationof his parental rights fornonsupport. 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 shemay

### have told him that she didn't expect child supportwhile he wasn't working, but that shedid expect to receive it when he

wasworking. In an area of conflicting testimony such as this, the trier of fact is entitled to determine which testimony to believe. Itwas entirelywithin 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 fatherhad failed topay support,although able, for aperiod of oneyear. Affirmed.