No. 82-35 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1982 

IN RE THE MARRIAGE OF 

PEGGY ANN BURNS, 

Petitioner and Appellant, 

-vsDEWEY JAMES BURNS, 

Respondent and Respondent. 

Appeal from: District Court of the Second Judicial District, 

In and for the County of Silver Bow, The Honorable Arnold Olsen, Judge presiding. 

Counsel of Record: 

For Appellant : 

Joseph C. Engel, 111, Butte, Montana 

For Respondent : 

Sweeney and Belke, Butte, Montana 

Submitted on Briefs: April 15, 1982 

Decided: June 14, 1982 

Filed: JUN 1 4 1982 
Mr. Justice John Conway Harrison delivered the Opinion of 

the Court. 

This appeal results froin the denial of a petition by 

the District Court of the Second Judicial District, in and 

for the County of Silver Bow, for termination of the 

parental rights of Dewey Burns. 

Peggy Burns and Dewey Burns were married on December 

31, 1975. Two children were born as issue of their marriage. 

At the time of the divorce Peggy was awarded custody 

of the children. Dewey Burns was ordered to contribute $300 

a month to the maintenance of the minor children. He was to 

make payments to the Clerk of the District Court on the 6th 

and 21st days of each month beginning April 21, 1978, and 

continuing until the youngest child reached the age of his 

majority. Additionally, Dewey Burns was to maintain health 

insurance coverage for the children and to contribute $100 a 

month for the support and maintenance of Peggy Burns beginning on April 21, 1978. 

From the outset, Dewey Burns failed to make the required contributions. The records of the Clerk of the District Court indicate that the last date on which Dewey Burns 

made a contribution, prior to the petition to terminate his 

parental rights, was December 6, 1978. 

On November 26, 1980, Peggy Burns petitioned the 

District Court to terminate the parental rights of Dewey 

Burns to the parties' two children under section 40-8- 

111(1) (a) (v) , 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;" (Emphasis supplied.) 

The petition to terminate was filed prior to the 

filing of a petition for adoption. See, Commissioners' 

Notes, contained in Annotations to section 40-8-111, MCA. 

After the petition was filed, Dewey Burns made two 

lump sun payments: one of $2,580 on December 23, 1980, 

coincidental with the first hearing on the petition to 

terminate his parental rights; and the second of $3,250 on 

May 6, 1981, again coincidental with the May 8, 1981, 

hearing called by the court on the petition to terminate his 

parental rights. 

The appellant, Peggy, argues that these af ter-thefact payments should not affect determination of the 

petition since the wording of the statute speaks about 

nonsupport prior to the petition to terminate. Tlrl e 

appellant also argues she was treating $2,400 of this money 

as payment of past-due spouse maintenance, which was delinquent in that amount. It is important to note here that 

Dewey Burns is still several thousand dollars in arrears of 

his child support obligations. 

At the first hearing, held December 19-22, 1980, 

Dewey Burns argued that despite the fact he had not made his 

payments to the clerk of court's office, as ordered by the 

decree, he had paid $925 in cash, plus $400 through his 

mother, plus $1,400 to the State of Utah the year preceding 

the petition. Peggy was on welfare in Utah and assigned her 

claim to the State of Utah for support given these two 
children by the welfare department in Utah. Peggy Burns's 

testimony indicated she received only $670 from Dewey Burns 

and that Dewey had no evidence to support his claims. At 

best, by his own testimony, he contributed $2,725 from 

December 1978 until December 1980. 

The court found that according to the clerk of the 

court's records the last child support payment by Dewey 

Burns before the petition to terminate his parental rights 

was filed on December 6, 1978, and the next payment was 

filed on December 22, 1980. The court noted that Dewey 

Burns had made no child support payments through the clerk 

of court's office for twenty-four months. In addition, the 

court found that Dewey Burns failed to make support payments 

as ordered by the court although financially able to do so 

and that he had maintained contact with the children and 

knew where they were. The court then, in a finding of fact, 

found that Dewey Burns had paid a total of $4,750 in back 

payments on advice of counsel after the filing of the petition to terminate his parental rights. 

Peggy Burns takes exception to several of the trial 

court's conclusions of law as being contradictory to its 

findings of fact. The court concluded: that the statute is 

to be interpreted most strictly in favor of preserving the 

natural parent's rights; that in viewing the evidence in 

that light, the evidence indicates that Dewey Burns, 

although financially able to do so, did not support his 

children for one year prior to the petition to terminate his 

parental rights; and that Dewey Burns's neglect in making 

court-ordered child support payments for a period of twentyfour months justified Peggy's seeking to terminate his 
parental rights and replace him as the boys' father with her 

second husband who would have provided a more stable and 

proper influence. The court, however, declined to terminate 

the parental rights of Dewey Burns, The court also concluded 

that because Peggy was justified in bringing an action to 

terminate Dewey's parental rights for nonsupport of the 

children, she is entitled to costs and reasonable attorney 

fees even though the court must hold that the petition to 

terminate is not well taken and thereby dismissed. 

Two issues are presented on appeal: 

1. Did the District Court err in declining to 

terminate the parental rights of Dewey Burns after it had 

established that he failed to make court-ordered child 

support payments for a period of twenty-four months prior to 

the petition to terminate his parental rights? 

2. May after-the-fact payments be treated by the 

recipient as payments of other outstanding obligations? 

We find the first issue determinative in this matter. 

Two recent cases of this Court, Matter of Adoption of SLR 

(1982) 1 Mont . , 640 P.2d 886, 39 St.Rep. 156, and 

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

141, are controlling, 

Mr. Justice Daly, the author of the majority opinion 

in - SLR, quoted Smigaj in part and stated: 

"', , we have no difficulty construing the 

plain meaning of the words in the context of 

the consent statutes as referring to the 

financial support that a paren-t owes a 

child.' [Citation omitted,] Here, the 

father was under a duty, pursuant to the 

dissolution decree, to provide child support 

payments of $100 per month. It is undisputed 

that the father failed to pay any child 

support over a year before the petition for 

adoption was filed. The plain meaning 

approach of Smigaj requires that the father 
contribute financial support to the child. 

The failure to provide financial support 

cannot be cured by giving the child several 

articles of clothing. 

"Similarly, the noncustodial parent cannot 

satisfy his obligation to provide financial 

support by incurring or paying debts which 

are unrelated to the child. . . It SLR, 64PI 

P.2d at 887-888. 

'The failure to provide financial support cannot be cured by 

giving the child several articles of clothing. 

Justice Daly noted also in Matter of Adoption of SLH, 

supra, that the noncustodial parent cannot satisfy his 

obligation to provide financial support by incurring or 

paying debts unrelated to the child. The express terms of 

the statute, as Justice Daly noted, referred to "support 

that a parent owes a child.'' See also, Smigaj, supra. 

Further, in - SLR, this Court noted that the father had 

no valid reason for failing to make even one child support 

payment during the entire year preceding the filing of the 

petition. He suffered no physical or mental impairment 

during that time, and he possessed skills that would have 

made him employable (carpentry, labor, operator of heavy 

equipment) . The father voluntarily chose a lifestyle inconsistent with parental support obligations. That he had a 

right to choose such a lifestyle is conceded. That he had a 

legal right to prevent the adoption of his child, however, 

is not consistent with the voluntary failure to contribute 

to the child's support. In the words of the California 

court: "A statute should not be interpreted in favor of a 

father who seeks the benefit of parental rights but shuns 

the burden of parental obligations." In Re Burton's 

Adoption (1956), 147 Cal.App.2d 125, 305 P.2d 185, 191. 

For these reasons, the conclusions of the District 
Court as to the issues of father's contribution to the 

support of the children and his ability to so contribute are 

vacated. The rights of the father to the children are 

terminated. The District Court is reversed and ordered to 

cornply with this opinion. 

We concur: 

Justices