No. 86-322 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

IN THE MATTER OF THE ADOPTION OF 

K.L.J.K., A minor. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable G. Todd Eaugh, Judge presidinq. 

COUNSEL OF RECORD: 

For Appellant: 

Glenn R. Kanvick, pro se, Rillings, Montana 

For Respondent: 

Dunaway, OIConner & Moe; William J. O'Connor, 11, 

Billings, Montana 

Submitted on Briefs: Oct. 30, 1986 

Decided: December 29, 1986 

DEC 2 9 1986 

Filed. : 

- . - 

Clerk 
Mr. Justice Frank R. Morrison, Jr. delivered the Opinion of 

the Court. 

The natural father of K.L.J.K. appeals the May 2, 1986, 

order of the Thirteenth Judicial District Court terminating 

his parental rights and decreeing the adoption of R.J,.J.K. by 

her natural mother's new husband. We affirm. 

The marriage of K.L.J.K.'s natural parents was dissolved 

February 14, 1983. The mother was awarded custody of 

K.L.J.K. The father, G.R.K., was ordered to pay $100 a. 

month in child support until finding employment or June 1, 

1983, whichever occured first. Thereafter, he was to pay 

$175 per month. 

The father, a frequently unemployed construction worker, 

has been remiss regarding his child support obligation since 

the beginning. He has been held in contempt of court and 

incarcerated for his failure to make the support payments. 

Efforts by G.R.K. to have his support obligation reduced have 

not been successful. In October of 1984, he was found to owe 

$3,336.58, in child support. No support paymentc have been 

forthcoming since May of 1984. 

In October of 1985, the natural mother petitioned the 

court for the termination of G.R.K.'s parental rights. Her 

new husband then petitioned the court to adopt K.L.J.K. 

G.R.K.'s request for a court-appointed attorney of his 

choosing was denied. G.R.K. has therefore appeared pro se. 

Following several hearings on the petitions and the filing of 

numerous briefs and memoranda by the parties, the trial judge 

held that because K.L.J.K.'s natural father had failed to 

make child support payments for at least one year prior to 

the filing of the petitions, despite his ability to do so, 

his daughter could be a-dopted without his permission pursuant 

to S 4-8-11 1 (a (7 , MCA. The trial judge terminated 
G.R.K.'s parental rights, then found that adoption by her 

natural mother's husband would be in K.L.J.K. ' s best 

interests and granted the petition to adopt. 

Numerous issues are raised on appeal. 

1. Is G.R.K.'s constitutional right to equal protection 

abridged by the requirement that he make child support 

payments despite being denied visitation rights with his 

daughter? 

2. Did the District Court err by not giving credit for 

in-kind child support payments? 

3. Did the District Court fai-1 to provide G.R.K. with a 

fundamentally fair hearing by: 

a. refusing his request for court-appointed counsel; 

b. failing to provide adequate notice of the hearings 

in this matter; and 

c. making a ruling based on improper find-ings? 

4. Is 4-8-llll((a)(v), MCA, unconstitutionally 

vague ? 

We take this opportunity to reaffirm our decision in 

State, ex rel. Dewyea v. Knapp (Mont. 1984), 674 P.2d 1104, 

41 St.Rep. 143, that one's obligation to provide child 

support is in no way connected with one's right to 

visitation. Section 40-5-124, MCA, states in part: 

. . . The determination or enforcement of a duty of 

support owed to one obligee is unaffected by any 

interference by another obligee with rights of 

custody or visitation granted by a court. 

Because the responsibility to provide child support is not 

interchangeable with the right to visit one's child, there 

can be no equal protection problem in requiring that child 

support obliqations be met despite the denial of visita.tion 

rights. 
We also reaffirm our decision in Tn the Matter of the 

Adoption of S.L.R. (1982), 196 Mont. 411, 640 P.2d 886, that 

the providing of articles of clothing or other in-kind 

payments does not satisfy a parent's obligation to contribute 

to the financial suppport of his or her child. 

Next, there is no constitutional or statutory 

requirement that an indigent party be provided with 

court-appointed counsel in a civil proceeding. The Court has 

reviewed the cases cited by G.R.K. in support of his request 

for court-appointed counsel and finds that each involves a 

situation where the State is seeking to terminate parental 

rights pursuant to criminal statutes. They are not civil 

matters. See Lassiter v. Dept. of Social Services (3981), 

452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640. 

The fundamental requirements for due process axe "notice 

snd opportunity for hearing appropriate to the nature of the 

case." Mullane v. Central Hanover Bank & Trust Co. (1950), 

339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865. G.R.K. received 

adequate notice of each hearing held in this matter, appeared 

at each hearing and presented evidence and testimony in 

support of his position. We find no violation of G.R.K.'s 

right to due process of the laws. 

The remaining issues raised by appellant require close 

scrutiny by this Court. G.R.K. contends (5 40-8-111 (1) (a) (77) , 

MCA, is unconstitutional because of its vagueness. Respondent 

contends that this issue was not raised at the lower level. 

Therefore, we should not consider it on appeal. Respondent 

has apparently disregarded a memorandum filed by G.R.K. in 

the lower court the morning of May 5, 1986, wherein the 

precise issue was raised and discussed. However, the 

Attorney General ' s off ice has never been notified of the 

constitution81 challenge to the statute as required by 
Rule 38, M.R.App.Civ.P. Because appellant failed to timely 

raise the issue in the lower court and because the Attorney 

Genera.lls office has not been given an opportunity to appear 

in this matter, we refuse to decide the constitutionality of 

f; 40-8-111 (1) (a) (v) , MCA. 

Nevertheless, if the statute is in fact vague, 

objections other than those of a constitutional nature may be 

made. Courts must refuse to enforce legislation which is 

deemed too uncertain to be applied. However, Courts are 

granted the liberty of construing uncertain statutes in a 

reasonable manner, keeping in mind the intent of the 

legislature. Nice v. State (1973), 161 Mont. 448, 507 P.2d 

527. See also McClanathan v. Smith (1980), 186 Mont. 56, 606 

P.2d 507. We take that liberty here. 

Section 40-8-111 (1) (a) (v) , MCA, states: 

Consent required for adoption. (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.- (Emphasis supplied.) 

G.R.K. objects to the term "support", contending that it 

is vague. We also have problems with the term "able". 

We have previously construed "support1' to be " financial 

support that a parent owes a child". In the Matter of the 

Adoption of Smigaj (1977), 171 Mont. 537, 560 P.2d 141. 

Later, in In the Matter of the Adoption of R.A.S. (Mont. 

1984), 679 P.2d 720, 41 St.Rep. 451, we held that even if a 

parent had made a child support payment less than twelve 
months prior to the filing of an adoption petition, the 

payment would not trigger the consent requirement if it was 

actually applied to child support due and owing for more than 

twelve months prior to the filing of the petition. 

These decisions are consistent with the importance of 

child support. They give notice to parents that they must 

provide more than token support once or twice a year or risk 

having their parental rights terminated. However, because of 

this definition of "support", we must be especially careful 

in determining whether a parent is "able" to contribute to 

the support of the child. Otherwise, parents who forego a.11 

but the necessities of life in order to make partial child 

support payments might be unfairly penalized. 

Caution must be exercised when determining who is "able" 

to contribute to the support of their child. We recently 

affirmed a lower court's determination that the "statutory 

ability to pay child support cannot be determined solely by 

the natural parent's income." The ability to contribute must 

also take into account the parent's ability and desire to 

earn an income. In the Matter of The Adoption of B.L.P. 

(Mont. 1986), - P.2d - , 43 St.Rep. 2116. In that case, 

the father left a stable job for a potentially more lucrative 

position. The second job failed to materialize. The lower 

court found, and we agreed, that the father's financial 

priorities did not include providing child support, despite 

his ability to do so. 

Conversely, when determining whether a parent is "able" 

to contribute support to the child, we must also examine the 

parent's willingness to work and willingness to meet only his 

basic needs before providing for his child. Thus, in 

determining whether a parent is "able" to contribute to the 
support of the child, the trial judge must examine several 

factors, includinq: 

1) The parent's ability to earn an income; 

2) The parent's willingness to earn an income and 

support his child; 

3) The availability of jobs; 

4) The parent's use of his funds to provide himself 

only with the bare necessities of life prior to providing 

support for his child. 

Applying the above factors to the case at bar, we find 

no error in the lower court's determination that G.R.K. was 

able to contribute to the support of his child. Exhibits 

entered into evidence by G.R.K. indicate that his average 

monthly income for the 12 months immediately prior to the 

filing of the petition was $750. The same exhibit shows his 

monthly expenses for food, utilities and rent ranged from 

$455 to $530 a month. Thus, there existed, on the average, 

between $220 and $295 a month from which some child support 

could have been paid. G.R.K. voluntarily chose not to make 

child support payments with this extra money. He therefore 

must face the consequences. 

There is sufficient evidence to support the decision of 

the trial judge. It is affirmed. 

. F 

f Justice , \ /' --\ 

We Concur: 

Chief Justic