NO. 83--175 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1984 

IN THE MATTER OF THE 

ADOPTION OF R.A.S. 

APPEAL FROM: District Court of the Third Judicial District, 

In and for the County of Deer Lodge, 

The Honorable Robert J. Boyd, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Michael J. McReon argued, Anaconda, Montana 

For Respondent: 

Knight, Dahood, McLean & Everett; David M. McLean 

argued, Anaconda, Montana 

Submitted: 1/19/84 

~ecided: 3/26/84 

;(ififl \: y3g4 

Filed: 

Clerk 
Mr. Justice L.C. Gulbrandson delivered the Opinion of the 

Court. 

The natural father, W.A.S., appeals from an order of 

the District Court, Third Judicial District, Deer Lodge 

County, allowing the adoption of his minor son, R.A.S., 

without the consent of the natural father. We affirm. 

The natural father and the natural mother were married 

on August 9, 1975. A minor son, R.A.S., was born as issue 

of the marriage on November 23, 1977. 

The marriage between the natural father and mother was 

dissolved on March 16, 1979 in the Thirteenth Judicial 

District, Yellowstone County. Custody of the child was 

awarded to his mother, with his natural father being ordered 

to pay $150 per month child support through the office of 

the Clerk of Court, Yellowstone County. The parties 

voluntarily vacated the requirement to pay child support 

through the Clerk of Court and, instead, support payments 

were made directly to the natural mother. The adoptive 

father, W.K.D., and the natural mother were married on April 

25, 1981. 

The child support payments were due on the first day 

of every month. The appellant, natural father, paid the 

child support each month from the time of the divorce 

through the month of June, 1981. No support payment was 

made in July, 1981. In August, 1981, the appellant made an 

additional $150 child support payment which was credited to 

his obligation for July, 1981 that had not been timely paid. 

Thereafter, on or about December 20, 1981, a payment of $450 

was made which was credited to back support payments due for 

August, September and October of 1981. No further support 
payments were received by the natural mother prior to the 

adoptive father's filing of a petition for the adoption of 

the child on December 2, 1982. In addition, no child 

support payments have been made since the filing of the 

petition for adoption. 

At trial, the District Court determined that during 

the period from November, 1981 through November, 1982, the 

appellant, natural father, was gainfully employed and 

financially capable of making the required child support 

payments but voluntarily chose not to do so. As a result, 

the District Court held that the consent of the appellant to 

the petition for adoption was not required pursuant to the 

provisions of Section 4-8-lll(l)(a)(v), MCA, and the best 

interests of the child would be served by granting the 

petition. 

In pertinent part, Section 4-8-lll(l)(a)(v), MCA, 

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 . . ." 

At trial, the appellant argued that the $450 payment 

made on December 20, 1981, was made during the period of one 

year before the filing of the petition on December 2, 1982, 

and therefore his consent to the adoption was necessary. 
However, the District Court held that the word "support" 

indicates a continued monetary contribution on a specified 

basis. Thus, appellant's support obligation was not made on 

a continuing basis and by giving credit to the appellant for 

the $450 payment made on December 20, 1981, the District 

Court determined that no support was made "during" the 

period of one year before the filing of the petition for 

adoption. From that determination, the natural father 

appeals. 

Appellant raises one issue on appeal: Did the 

District Court err in holding that the consent of the 

appellant was not necessary in granting the petition for 

adopt ion? 

Appellant argues that he contributed to the support of 

the child "during" the one year period before the filing of 

the petition for adoption was filed December 3, 1982. 

Appellant points out that child support in the sum of $450 

was paid on or about December 20, 1981. Appellant asserts 

that Section 4-8-lll(l)(a)(v), MCA, must be strictly 

construed in favor of the appellant and a literal 

construction of the statute compels the Court to reverse the 

District Court because appellant made a payment within one 

year prior to the filing of the petition of adoption. 

Respondent maintains that if the argument of the 

appellant is accepted, a noncustodial parent could defeat 

the adoption of his natural child by merely making a portion 

of one payment on the same date each year. Thus, respondent 

asserts, to allow the statute to be interpreted and 

construed in this manner would be ludicrous and contrary to 

legislative intent. 
The central issue in this case is whether the 

appellant has not contributed to the support of the minor 

child during a period of one year prior to the filing of the 

petition for adoption. 

In adoption cases the initial threshold requirement is 

statutory compliance. In the Matter of the Adoption of 

Smigaj (1977), 171 Mont. 537, 560 P.2d 141. Thus, Section 

4-8-lll(1) (a) (v) , MCA, sets forth a two-pronged test to 

determine whether the natural parent's consent is required 

for adoption. First, it must be determined whether the 

nonconsenting parent has not contributed to the support of 

the child during a period of one year prior to the filing of 

the petition for adoption and,second, it must be determined 

whether the nonconsenting parent had the ability to 

contribute to the child's support. In the Matter of the 

Adoption of S.L.R. (Mont. 1982), 640 P.2d 886, 39 St.Rep. 

156. The burden rests on the petitioner to show that the 

requirements of Section 4-8-lll(l)(a)(v), MCA, have been 

met and, because of the harshness of permanently terminating 

parental rights, strict compliance with the statute is 

required. In the Matter of Challeen (1977), 172 Mont. 362, 

563 P.2d 1120; in re Adoption of Biery (1974), 164 Mont. 

353, 522 P.2d 1377. 

In the present case, appellant admitted that he had 

the ability to make the required child support payments. 

The second phrase of the statute, ". . . has not contributed 

to the support of the child during a period of one year 

before the filing of the petition . . . ," precipitates the 

present dispute. There is no dispute that the support of 

the child was paid to the month of August, 1981. It is 
further without dispute that a payment of $450, which 

brought the payments up to November 1, 1981, was made on or 

about December 21, 1981, some eleven months and eighteen 

days before the filing of the petition for adoption. The 

appellant contends the payment was made ". . . during a 

period of one year before the filing of the petition for 

adoption . . ." 

Our basic policy in adoption cases has been " . . . a 

statute should not be interpreted in favor of a father who 

seeks the benefit of parental rights but shuns the burden of 

parental obligatons." In Re Burton's Adoption (1956), 146 

Cal.App.2d 125, 305 P.2d 185, 191; cited with approval, - In 

the Matter of the Adoption of S.L.R., supra. Accordingly, 

the District Court noted that appellant ". . . was able to 

support his minor son, but voluntarily chose a course of 

action involving a new lifestyle and self-inflicted 

alcoholism to cause him to forego both support and 

visitation of his child." As we noted in In the Matter of 

the Adoption of S.L.R., supra, "[tlhe father voluntarily 

chose a lifestyle inconsistent with his parental 

obligations. That he had the 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 

his voluntary failure to contribute to the child's support." 

There is no Montana case law specifically construing 

the word "during" for the purpose of child support payments. 

However, in State ex rel. Palagi v. Regan, County Clerk 

(1942), 113 Mont. 343, 126 P.2d 818, the Court said the 

legislature is presumed to have understood the elementary 

rules of construction of the English language, and a statute 
must be construed according to the context and approved 

useage of the language. Black's Law Dictionary, 5th Ed., p. 

453 defines "during" as: "throughout the course of; 

throughout the continuance; in the time of." We note that 

appellant stated at trial that he made the December, 1981, 

payment of $450 because he was behind on his payments. 

Thus, he did not intend the payment to be "throughout the 

course of" a one year period prior to the filing of the 

petition of adoption. In addition, we stated in In the 

Matter of the Adoption of Smigaj, supra, that the word 

"supportt1 in the context of the consent statutes refers to 

the "financial support that a parent owes a child." In the 

case at bar, the support paid on December 20, 1981, was 

actually due and owing for previous months. Thus, it was 

not actually "supportt1 as contemplated within the adoption 

statutes "during" the year prior to the filing of the 

petition of adoption. We hold that to construe the statute 

as requiring the nonconsenting parent to remain current 

within one year on his or her support payments is in accord 

with the policy of the adoption statutes and the intent of 

the legislature. Accordingly, the payment made by appellant 

on December 20, 1981, was not "support" contributed during a 

period of one year prior to the filing of the petition for 

adoption and therefore the judgment of the District Court is 

af f irmed. 
We concur: 

Justice 

Chief Justice Frank I. Haswell deems himself disqualified 

and does not participate in this decision. 

Mr. Justice Daniel J. Shea dissents and will file a written 

dissent later. 
Mr. Justice Fred J. Weber dissents: 

I respectfully dissent from the majority opinion. While 

the result seems fair, I am unable to approve the statutory 

construction in the opinion. 

The pertinent portion of section 4-8-(1) MCA 

states: 

" (1) An adoption of a child may be decreed . . . (v) if it is proven to the satisfaction of the 

court that the father . . . 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; . . ." 

The petition was filed on December 2, 1982. Four hundred and 

fifty dollars was paid by the father for the support of the 

child on December 20, 1981. Clearly such payment wa.s made 

"during a period of 1 year before the filing of [the] 

petition." While it is true that such payment was for a 

period of time prior to 1 year, nonetheless the payment was 

made during the period of 1 year before filing and therefore 

meets the requirements of the statute. I believe the Black's 

Law Dictionary definition as described in the majority 

opinion also is met. Such payment was made by the father 

"throughout the course of" 1 year before filing. Such 

payment also was made "throughout the continuance" of 1 year 

before the filing. Last, such payment also was made "in the 

time of" 1 year before the filing. 

I would reverse the District Court. 
DISSENT OF MR. JUSTICE DANIEL J. SHEA 

No. 83-175 

IN THE MATTER OF THE 

ADOPTION OF R.A.S. 

CLERK OF SUBREPilE COURT; ; 

STATE OF fblONTAHA 
Mr. Justice Daniel J. Shea, dissenting: 

I dissent. In terminating parental rights, all 

reasonable constructions of the statute must be made in favor 

of non-termination and strictly construed against the state. 

Section 40-8-111(1), MCA, is essentially a penal statute 

because it forever terminates the right of the naturalparent. As such, it should be construed in favor of 

non-termination. 

Also, the statute's language is ambiguous: "during a 

period of 1 year before the filing of the petition of 

adoption" is susceptible of various interpretations, and begs 

abuse. Whatever the conduct of the parents, the result will 

be a forced termination of the parent-child relationship. It 

is a travesty that troubles between warring parents should be 

visited upon innocent children. There are better and more 

equitable remedies available to the parties for temporary 

nonsupport than permanent termination of parental rights. 

I explained the pitfalls with this statute nearly three 

years ago in my dissent in In the Matter of S.L.R. (1982), 

196 Mont. 411, 416, 640 P.2d 886, 888-889. 

I would reverse the Distr