No. 82-35 INTHE SUPREME COURT OFTHE STATE OFMONTANA 1982

INRE THEMARRIAGE OF PEGGYANN BURNS, 

### PetitionerandAppellant,



### -vsDEWEY JAMES BURNS, Respondentand Respondent.

Appeal from: DistrictCourt

### of the

### SecondJudicial District, 

### Inand 

### fortheCountyof SilverBow, TheHonorableArnold Olsen, Judgepresiding.

Counselof Record: For Appellant: Joseph C. Engel, 111, Butte, Montana

For Respondent: Sweeneyand Belke, Butte, Montana

Submitted

### on Briefs: April15, 1982 Decided: 

### June 14, 1982

Filed:

## JUN

## 1 

# 41982

### 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 rightsof Dewey Burns. Peggy Burns and Dewey Burns were married on December 31, 1975. Two childrenwere born asissueof theirmarriage. Atthe time of the divorce Peggy was awarded custody of the children. Dewey Burns was ordered to contribute $300

amonth to themaintenance of theminor children. He was to make payments to the Clerk of the District Court on the6th 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 tocontribute $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 DistrictCourt indicate that the lastdateon 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 executedby: "(a) both parents, if living, or the surviving parent of a child provided that consent 

### isnot required from a father ormother:"(v) if it 

### is proven to the satisfaction of thecourt that the father ormother, 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;" (Empha

### sis supplied.) The petition to terminate was filed prior to the filing of 

### a petition for adoption. See, Commissioners' Notes, contained inAnnotations to section40-8-111, 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 courton the petition toterminate his parental rights. The appellant, Peggy, argues that these after-thefact payments should not affect determination of the petition since the wording of the statute speaks about nonsupport prior to the petition to terminate. Tlrle appellant also argues she was treating $2,400 of thismoney

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 arrearsof hischild support obligations. At the first hearing, held December 19-22, 1980, Dewey Burns argued thatdespitethe facthe had notmade 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 Stateof Utah the year preceding the petition. Peggy was on welfare inUtah and assigned her claim to the State of Utah for support given these twochildren 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 1978untilDecember 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 thatDewey Burns failedtomake supportpayments

as ordered by the court although financially able to do so and that he had maintained contact with the children and knew where theywere. The court then, ina finding of fact, found that Dewey Burns had paid a total of $4,750 in back payments on advice of counsel after the filingof the petition toterminatehisparental 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 tothepetition toterminatehis 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 hisparental rightsand replace him astheboys' father with her second husband who would have provided a more stable and proper influence. The court, however, declined to terminate the parental rightsof Dewey Burns, The court alsoconcluded 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 isnotwell taken and therebydismissed. Two issuesarepresented 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 fora period of twenty-four months prior to the petition to terminatehisparental rights? 2. May after-the-fact payments be treated by the recipient aspayments of other outstanding obligations? We find the firstissuedeterminative inthismatter. 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), 171Mont. 537, 560 P.2d 141, arecontrolling, Mr. JusticeDaly, the author of the majority opinion in - SLR, quoted Smigaj inpart 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 fathercontribute financial support to the child. The failure to provide financial support cannot be cured by giving the child several articlesof 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 at887-888. 'The failure to provide financial support cannot be cured by giving the child several articlesof clothing. JusticeDaly noted also inMatter 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 thata parentowes a child.'' See also, Smigaj, supra. Further, 

### in

### - SLR, thisCourt noted that the fatherhad

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 voluntarilychose a lifestyleinconsistent with parental support obligations. That he had a right tochoose such a lifestyle isconceded. 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), 147Cal.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 supportof the children and his abilityto socontributeare vacated. The rights of the father to the children are terminated. The District Court is 

### reversed and ordered to cornply with thisopinion.

We

### concur:

Justices