Donald Michael KLOBNOCK, Appellee, In the Interest of Cody Michael Abbott, a Minor, Michael David ABBOTT, Appellant.
No. 64697.
Supreme Court of Iowa.
March 18, 1981.
149
Considered by REYNOLDSON, C. J., and LeGRAND, UHLENHOPP, McCORMICK, and McGIVERIN, JJ.
McGIVERIN, Justice.
The main question here is whether the parental rights of Michael David Abbott should have been terminated under
The juvenile court shall base its findings and order under
section 600A.9 on clear and convincing proof. The following shall be, either separately or jointly, grounds for оrdering termination of parental rights.. . . .
4. A parent has been ordered to contribute to the support of the child . . . and has failed to do so without good cause.
Michael appeals contending (1) that under the circumstances his parental rights should not have been terminated for failure to provide support, and (2) that
I. Facts and proceedings. Our review of a trial court‘s finding of grounds for termination of parental rights under
Our de novo review reveals that the following facts were established by clear and convincing evidence as required by
Clark L. Holmes, Des Moines, for appellant.
Stephen P. Meyer and Mary M. Meyer, Chariton, for appellee.
Michael paid no child support during the first two years after the decree. He only saw his son once or twice during that time. Since the dissolution, he has lived in Des Moines and worked at the John Deere plant where his gross weekly pay averages $400. He admitted at trial he could have paid the ordered support but did not.
After the dissolution, Connie and the child lived in Chariton, Omaha and Indianola. On September 15, 1978, Connie married Donald Klobnock, the petitioner. Thеy moved with the child to Chariton and still reside there. Donald has supported the child since Donald married Connie. He testified he loves Cody and wants to adopt him. Connie, of course, encourages that prospective adoption.
On August 6, 1979, as a prerequisite to adoption,
The petition alleged that the natural father, Michael, had been ordered in the dissolution decree to pay child support but failed to do so without good cause.
At trial, on October 8, 1979, Michael resisted the termination. He admitted failing to pay support, despite an ability to pay, but claimed that he had not been allowed to visit the child. The evidence showed he telephoned Connie‘s parents a few times after the decree but, at her request, they did not tell him where she was living due to Michael‘s alleged history of violence to Connie and her рroperty. Although he knew Connie‘s general location when she lived in Omaha and Chariton, he made no effort to contact her, obtain her telephone number, or see the child. Michael testified that he consulted two attorneys to enforce his visitation rights but was told he would have practical problems in court on that issue unless he paid his child support.1 That advice seemed to curb his desire for visitation and he continued to pay no support.
The amount of delinquent support for the two-year period since the decree was $2400. Michael said at trial that he wanted to pay all the support. He admitted he had no real excuse for not paying it. He had $500 in a savings account and had been saving $50 per week from his paycheck at his credit union. The court granted him until October 22 to pay the delinquent support to the clerk of court. If so paid, the petition to terminate his parental rights would be dismissed. If the support was not paid, the petition would be granted.
Michael only paid $400 by Octоber 22. On October 25 Donald filed an application for an order terminating Michael‘s parental rights. Michael filed a motion to dismiss the petition contending, inter alia, that
On December 26 the court made detailed findings of fact, conclusions of law and rendered a decree granting the petitiоn and terminating the parent-child relationship between Michael and his son, Cody. Michael appeals from that order.
We turn now to the issues presented by Michael.
The provision in
A parent has a basic obligation to support a minor child. The legislature has determined that it is in the best interests of a child to terminate a parent-child relationship if the parent refuses to support the child. Although abandonment is a separate ground for termination,
We conclude that Michael has substantially failed to pay support as contemplated by
Once a court finds a failure to pay ordered support, the question is whether that failure was without good cause.
Michael advances two reasons why he failed to pay the support. The first is that Connie would not allow him to visit the child. The dissolution decree granted Michael “unlimited visitation.” Michael claimed that he tried, without success, to visit the child and therefore refused to pay support. We decline to find that this is good cause for failing to provide support. Michael‘s remedy if he felt that he was not being allowed to exercise his visitation rights is not to unilaterally withhold support payments. The testimony at trial revealed that relations between Michael and Connie are strained, particularly over the visitation issue. Michael‘s antipathy for Connie, however, is not good cause for failing to pay ordered support. Kelley, 262 N.W.2d at 785.
Although the statute does not expressly require a separate consideration of the welfare of the child once statutory grounds for termination аre established under
We hold there was clear and convincing proof to justify termination of Michael‘s parental rights under
III. The constitutional issue. Michael asserts on appeal that
Michael raised the constitutional issue for the first time after trial in a written motion to dismiss. It stated that to deprive Michael under
The court was never presented with the vagueness argument or an attack specifically on
The trial court was right in terminating the natural father‘s parental rights under
AFFIRMED.
All Justices concur except UHLENHOPP, J., who dissents.
UHLENHOPP, Justice (dissenting).
I. The facts regarding nonsupport by Michael, the father, are similar to those in numerous contempt proceedings brought to compel support. This case, however, con-
Beyond this case lies an adoption proceeding by Cody‘s stepfather. Present
Our statutes now permit termination of the parent-child relationship for nonsupport without good cause in
The juvenile court shall base its findings and order under
section 600A.9 on clear and convincing proof. The following shall be, either separately or jointly, grounds for ordering termination of parental rights:4. A parent has been ordered to contribute to the support of the child or financially aid in the child‘s birth and has failed to do so without good cause.
In the application of such a statute, the conduct of parents upon which forfeiture of the parental relationship is asked may range from a slight violation of
The question then is this: where does the present case fall in the spectrum? The record reveals the strife which frequently exists in marital breakup. Michael states he desired to visit the child during the two-year dissolution period, and he professes a desire to continue to do so. His father supports him in this, and both of his parents desire to visit the child. See
Q. Do you want to visit the child? A. Yes.
Q. How long have you wanted to visit the child? A. Ever sincе he was born.
Q. What efforts have you made to secure visitation? A. Everything I could think of. My hands were tied for a while. Nobody was giving me any cooperation.
Q. Are you willing to pay child support? A. Yes sir.
. . .
Q. You love your child? A. Yes.
Q. Have you ever had an address of Connie so you could send the money there? A. Just her folks’ address is all I ever knew.
Q. Do you want your relationship with your child terminated? A. No, sir.
Q. Do you want to maintain the relationship with the child? A. Yes.
Q. As he grows up? A. Yes.
Q. In fact, you don‘t want him to know where you are living, do you? A. No, not particularly.
Q. You don‘t want him to visit the child, do you? A. In the best interests of Cody, no; I do not.
Q. Your parents did not tell him where you were living at your request? A. Yes.
Connie also sought to show that Michael was violent, but this attempt appears to have ended in a draw. She testified:
A. He had a violent temper at times. I felt he was very irresponsible. During the separation he was free to come and see Cody any time, and most of the time he did he was violent and caused physical damage to not only my home I was living in but bodily damage to me.
Q. To you? A. Yes.
Q. Is it safe to say you were afraid of Mike Abbot? A. Yes.
Later this occurred on cross-examination:
Q. Let me ask you this. You were testifying to Mike‘s temper before you got divorced. A. Yes.
Q. At that time was he mad at you because you were using drugs?
Mr. Meyer [one of the attorneys of Cody‘s stepfather]: Objection. Irrelevant.
Mr. Holmes [Michael‘s attorney]: They went into it.
Mr. Meyer: No, we didn‘t, Your Honor.
The Court: I don‘t think you took any part in the examination of the witness.
Mr. Meyer: I believe I can object though, can I not?
The Court: Not ordinarily.
Mrs. Meyer [stepfather‘s co-counsel]: Would you like me to make the objection?
The Court: I believe I do.
Mrs. Meyer: I do object to this as totally irrelevant. I dоn‘t see what this has to do with it.
The Court: I don‘t want to get into that issue if I can avoid it.
Mr. Holmes: Can we call it a draw on the temper then?
The Court: Fairly well.
Michael testified on the issue of injury:
Q. Have you ever harmed the child? A. No, sir.
Q. Would you ever harm the child if visitation was set out for you? A. No, sir.
The real reason for the present proceeding appears to be the prospective adoption by the stepfather, to which Michael will not consent. See
Q. He didn‘t get visitation because he didn‘t pay the hundred dollars a month? A. No. Not at all. I never took him to court to get the money.
Q. You have never tried to get the money? A. No.
Q. The reason was you didn‘t want him to find out your address? A. That wasn‘t the reason.
Q. You just said it a minute ago. A. That wasn‘t the reason I didn‘t take him to court to get the money. So far as him paying the money, it didn‘t make any difference. It is in Cody‘s best interests that Mike Abbott didn‘t see him.
Q. We are in court today not because of the money; you don‘t think the money has anything to do with it, is that correct? A. Yes; I do. He has not supported the child. He has abandoned the child.
Q. Didn‘t you say it didn‘t make any difference to you? A. I said before I have not made any attempt to come to court to get $200 the first 2 or 3 or 4 or 5 months we were married. It hаs been 2 years. The boy is 3 years old. I am remarried. We have a family. It is now not just 3 or 4 months. It is 25 months.
Q. The major reason, aside from the fact that you are not getting any child support that is ordered to be given to you, that you are bringing, or Mike [stepfather] is bringing this action is so that
you can—Mike can adopt Cody? A. Yes; that is exactly correct.
Looking at finances, Michael admitted that he could pay $100 monthly support. He grosses $400 weekly as a factory worker and has about $200 weekly net:
Q. You are telling me you only bring home 50 percent of your wage? A. Yes. 85 goes into my credit union, 50 into savings, 25 to a loan, 10 into paying to work.
Q. What is paid into the credit union? Is that a loan? A. Yes.
Q. What is the loan for? A. Rent.
Q. I don‘t understand how that works. A. I had a bad month one time. I was laid off 30 days without pay and I needed the rent so I borrowed the money.
Q. How much did you borrow? A. 250, 265.
Q. How much do you have in your savings account? A. A little over $500.
Q. This is added to at $50 per week? A. Yes.
Q. Where is the savings account? A. With my credit union.
Q. Is that the John Deere credit union? A. Yes.
Q. There is $50 and $65. That has you down to about 290. I assume the rest goes for taxes? A. Yes. Union dues, things like that.
Q. In other words, it wouldn‘t have been very difficult for you to pay $100 a month? A. Not at all.
Q. Why did you refuse to pay? A. She wasn‘t letting me see him.
In answering questions by this court, Michael‘s attorney also candidly stated at the oral argument that he had “relieved” Michael of funds, undoubtedly as a payment on fees.
The record contains other evidence regarding the circumstances of the case, of the kind commonly found in contempt proceedings.
At the conclusion of the hearing the trial court summed up the case as follows:
The Court: The record in this matter shows that decree of dissolution was entered on September 19, 1977, it being DM No. 324, on the petition of Connie Lee Abbott and concerning Michael David Abbott.
The provisions of the decree entered in that case require Mr. Abbott to contribute to the support of his child, Cody Michael Abbott, at the rate of $100 per month, but the decree is silent with respect to the place and time that the monthly payments had to be made.
It appears satisfactorily from the record, so far as the Court is concerned, there hasn‘t been anything paid on the requirements аs far as child support is concerned since the entry of the decree in September 1977. Apparently part of this disinclination or refusal to pay child support is attributed to difficulties over visitation, with which the Court is not particularly concerned in this cause of action.
I think in view of the record made here, there isn‘t clear and convincing evidence that the parental rights between Mr. Abbott and his child, Cody Michael Abbott, should be terminated.
Under these circumstances, the Court is going to make the following ruling. In thе event the delinquent child support is paid to the Clerk of the District Court by October 22, 1979, the petition will be dismissed without prejudice at the petitioner‘s costs. If that child support, as required by the decree, has not been paid on or before October 22, 1979, the allegations of the petition will be considered sustained, his parental rights will be terminated and Connie Lee Klobnock will be appointed as guardian and custodian of the child, Cody Michael Abbott.
Michael did not raise $2400 within the fourteen-day period allоwed by the court; he paid $400. The court set the proceeding for further hearing, and the parties entered into the following stipulation:
Come now the parties and stipulate that if called upon to testify, Michael David Abbott would testify as follows:
1. That on October 8, 1979, the Honorable A. V. Hass, Judge ordered Michael David Abbott to pay his delinquent child support in full on or before October 22, 1979. The sum amounted to approximately $2,400.00.
2. That in an effort to raise this sum, Michael David Abbott sought to borrow money from Cash Credit, Dial Finance, and Beneficial Finance Companies of Des Moines, Iowa, and was refused credit.
3. That he sought to borrow money from his parents and friends and was unable to do so.
4. That he managed to borrow $295 from the John Deere Credit Union and paid that sum together with $105 to the Court as child support.
5. That he has made an honest effort to comply with the Court order and has done so to the best of his ability.
After the second hearing, the court terminated Michael‘s parentage of Cody. The court stated in its conclusiоns:
If an able parent opts to ignore his support obligation, there is no constitutional reason why his parental rights should not be severed. The Court finds that the Petitioner is Cody‘s stepparent, that the evidence is clear and convincing that Michael David Abbott was ordered to contribute to the support of his son, Cody Michael Abbott, at the rate of $100 monthly when the marriage of Cody‘s parents was dissolved on September 19, 1977, that the father was aware of his obligation to provide such support, that he failеd to contribute appreciably to such support until the commencement of the present proceeding, that such failure was without good cause, that the father was afforded an opportunity to eliminate the deficiency in support payments, that he failed to do so and that he has made no representation that he will perform in the future as required by the decree of dissolution. His failure without good cause to support his child is the equivalent of abandonment. In the Interest of Kelley, 262 N.W.2d 781.
Michael appealed.
II. I am in complete agreement with the view that vigorous efforts should be made to compel parents to support their children. The whole legal apparatus for compelling support has been too lax. In the process of increasing our diligence, however, we should not swing the pendulum too far to the other extreme and unduly undermine parent-child relationships. A typical factual context in which to consider termination on the basis of nonsupport is illustrated by the decision cited by the trial court, In re Kelley, 262 N.W.2d 781 (Iowa 1978). The cirсumstances there were far more aggravated than here. We quoted the trial court as concluding:
“That the state has shown by clear and convincing evidence that the parents of said child have substantially, continuously and repeatedly refused or neglected to comply with the duties imposed upon them by such parent-child relationship; that the mother of the child is palpably unfit to continue in her parent-child relationship due to her consistent pattern of specific conduct detrimеntal to the physical and mental health of the child; that the parents, as directed by the court, have failed to correct the conditions which brought about the adjudication of neglect in December of 1974, that all efforts by the Linn County Department of Social Services have failed to remedy those conditions; that, further, the natural father, Michael Kelley, has abandoned the child and failed to pay support as ordered so as to meet substantially the requirement of his intent to permanently abandon the child.”
I think that the present case is a proper one for severe contempt strictures—which have never been sought—but that it falls considerably short of clear and convincing proof of aggravating circumstances which are essential to warrant the drastic step of terminating the relationship altogether on account of nonsupport without good cause. Michael should have paid the child support, but total termination, under the circumstances here, seems too harsh. I would thus reverse the judgment.
McGIVERIN
JUSTICE