No. 13466 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1977 

IN THE MATTER OF THE ADOPTION 

OF JAMIE LYNN SMIGAJ, a minor. 

Appeal from: District Court of the First Judicial District, 

Honorable Gordon Bennett, Judge presiding. 

Counsel of Record: 

For Appellant: 

Leaphart Law Firm, Helena, Montana 

W. William Leaphart argued, Helena, Montana 

Victor H. Fall, Helena, Montana 

James M. Driscoll appeared, Helena, Montana 

For Respondent : 

Russell LaVigne argued, Helena, Montana 

Submitted: January 20, 1977 

DecidedEB 7 1977 

Filed: FEB 7 WQ A 
Mr. Justice Frank I. Haswell delivered the Opinion of the Court. 

A stepfather of a seven year old female child appeals 

from an order dismissing his petition for adoption entered by 

the district court of Lewis and Clark County, Honorable Gordon 

R. Bennett, district judge, sitting without a jury. 

The case comes to us on the basis of an agreed statement 

of fact in lieu of a record on appeal pursuant to Rule 9(d), 

M.R.App.Civ.P. The agreed facts indicate that the child, Jamie 

Lynn Smigaj, was adopted when she was one year old by James E. 

Smigaj and Alberta Smigaj, husband and wife. Subsequently James 

Smigaj became totally disabled and as a consequence thereof, 

Jamie Lynn receives monthly Social Security benefits of $154. 

On February 16, 1973, James E. Smigaj and Alberta Smigaj were 

divorced. Custody of Jamie Lynn was awarded to Alberta with 

reasonable rights of visitation granted to James Smigaj. The 

judge, upon considering James1 disability, did not order him to 

pay child support. 

On September 3, 1974, Alberta married Douglas J. Rushford 

and ever since they have been husband and wife, residing together 

with Jamie Lynn. 

On April 20, 1976, Rushford petitioned the district court 

for permission to adopt Jamie Lynn without the consent of the 

child's prior adoptive father, James Smigaj. 

On June 24, 1976, a hearing was held in the district court 

at which time James Smigaj appeared with counsel but did not 

testify. Alberta testified, among other things, that for more 

than one year prior to the petition for adoption by Rushford, 

James Smigaj had not visited with or seen Jamie Lynn nor had Jamie 

Lynn received any letters, post cards, presents, clothing or money 

from James Smigaj. 

At the conclusion of the testimony in support of the 
petition for adoption, Judge Bennett dismissed the case for 

the reason that Rushford had failed to prove that James Smigaj 

was able to financially contribute to the support of Jamie Lynn 

as required by section 61-205, R.C.M. 1947, and thus the adoption 

could not proceed without the consent of James Smigaj. 

Two issues are presented for review: 

(1) Did the district court err in not considering the 

child's welfare the paramount consideration? 

(2) Is section 61-205(1) (f) limited to "financial support"? 

The first issue has previously been decided by this 

Court adversely to appellant's position. In re Adoption of Biery 

(1974), 164 Mont. 353, 359, 522 P.2d 1377. Statutory consent 

requirements in adoption cases must first be met after which the 

welfare of the child becomes paramount. As stated in Biery: 

"While the best interests of the child are of 

utmost concern in both custody and adoption cases 

we have required strict compliance with section 

61-205, R.C.M. 1947, because of the harshness of 

permanently terminating parental rights." 

Thus in adoption cases the initial threshhold requirement is 

statutory compliance. The district court was correct in dismissing the petition for adoption on finding that statutory consent 

requirements had not been met. 

Directing our attention to the second issue, appellant 

argues that the term "support" contained in section 61-205(1) (f), 

R.C.M. 1947, does not refer exclusively to financial support but 

includes moral support, psychological support, spiritual support 

and so forth. Rushford urges that "support" includes the parental 

obligations to express love and concern for the child and to give 

the child social and religious guidance as set forth in Application of Conley v. Walden (1975), 166 Mont. 369, 533 P.2d 955. 

In this regard Rushford relies on Alberta's testimony that James 

Smigaj did not visit Jamie and did not send her any letters, 
post cards, presents, clothing or money. 

Section 61-205(1)(f) states in pertinent part that the 

father's consent to the adoption is not required: 

"if it is proven to the satisfaction of the 

c o u r t t h a t - s a i d father or mother, if able, 

has not contributed to the support of said child 

during a period of one (1) year before the filing 

of a petition for adoption * * *." (Emphasis added.) 

Although we have not been referred to any case specifically construing the meaning of the term "support" in section 

61-205(1)(f), we have no difficulty in construing the plain 

meaning of the words in the context of the consent statute as 

referring to the "financial support" that a parent owes a child. 

Rushford's petition for adoption alleged that James Smigaj, " * * * 

although financially capable, has not contributed to the support 

of said child * * *". The parties briefed the question of financial support. The parties themselves interpreted the statute 

to mean "financial support". The legislative intent is clear 

from the language used in the context of the statute and we are 

not permitted to apply extrinsic rules of construction to expand 

the definition. Keller v. Smith, (1976), Mont . , 553 

P.2d 1002, 33 St-Rep. 828; Dunphy v. Anaconda Co. (1968), 151 

Mont. 76, 438 P.2d 660, and cases cited therein. 

It appears that Rushford is actually attempting to argue 

that James Smigaj has abandoned Jamie Lynn and therefore his 

consent is not required under section 61-205(1)(d), R.C.M. 1947. 

If such is the case, the petition for adoption should be drafted 

on this basis and a hearing held thereon to determine whether 

the facts bring the petition within this statute. The decision 

herein is without prejudice to refiling the petition on this basis. 

The order of the district court dismissing the petition 

is affirmed. 

Justice 
We concur: 

~,- -. 

Justices 6'