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No. 86-322
IN THE SUPREME COURT OF THE STATE OF MONTANA
1986

IN THE MATTER OF THE ADOPTION OF

K.L.J.K.,

A minor.

APPEAL FROM:

District Court of the Thirteenth Judicial District, In and for the County of Yellowstone, The Honorable G. Todd Eaugh, Judge presidinq.

COUNSEL OF RECORD: For Appellant: Glenn R. Kanvick, pro se, Rillings, Montana For Respondent: Dunaway, OIConner & Moe; William J. O'Connor, 11, Billings, Montana

Submitted on Briefs: Decided:

Oct. 30, 1986

December 29, 1986

Filed. :

DEC 2 9 1986

-

Clerk

.-

Mr. Justice Frank R . the Court.

Morrison, Jr. delivered the Opinion of

The natural father of K.L.J.K.

appeals the May 2 ,

1986,

order of the Thirteenth Judicial District Court terminating his parental rights and decreeing the adoption of R.J,.J.K. by her natural mother's new husband. The marriage of K.L.J.K.'s February K.L.J.K. 14, 1983.
We affirm.

natural parents was dissolved was awarded custody of

The mother

The father, G.R.K.,

was ordered to pay $100 a.

month in child support until finding employment or June 1, 1983, whichever occured first. $175 per month. The father, a frequently unemployed construction worker, has been remiss regarding his child support obligation since the beginning. He has been held in contempt of court and Thereafter, he was to pay

incarcerated for his failure to make the support payments. Efforts by G.R.K. to have his support obligation reduced have not been successful. In October of 1984, he was found to owe
No support paymentc have been

$3,336.58, in child support. forthcoming since May of 1984.

In October of 1985, the natural mother petitioned the court for the termination of G.R.K.'s new husband G.R.K.'s then petitioned for a parental rights. Her

the court to adopt K.L.J.K. attorney of his

request

court-appointed

choosing was denied.

G.R.K.

has therefore appeared pro se.

Following several hearings on the petitions and the filing of numerous briefs and memoranda by the parties, the trial judge held that because K.L.J.K.'s natural father had failed to

make child support payments for at least one year prior to the filing of the petitions, despite his ability to do so, his daughter could be a-dopted without his permission pursuant to S
4-8-11 1
( a
( 7

, MCA.

The trial judge terminated

G.R.K.'s natural

parental rights, then found that adoption by her mother's husband would be in K.L.J.K.

's

best

interests and granted the petition to adopt. Numerous issues are raised on appeal. 1. abridged Is G.R.K.'s
by

constitutional right to equal protection make child support

the

requirement that he

payments despite being daughter? 2.

denied visitation rights with his

Did the District Court err by not giving credit for

in-kind child support payments?
3.
Did the District Court fai-1 to provide G.R.K. with a

fundamentally fair hearing by: a. b. refusing his request for court-appointed counsel; failing to provide adequate notice of the hearings

in this matter; and c.
4.

making a ruling based on improper find-ings? Is 4-8-llll((a)(v), MCA, unconstitutionally

vague ? We take this opportunity to reaffirm our decision in State, ex rel. Dewyea v. Knapp (Mont. 1984), 674 P.2d 1104, 41 St.Rep. is 143, that in no one's obligation to provide with one's child to

support

way

connected

right

visitation.

Section 40-5-124, MCA, states in part:

The determination or enforcement of a duty of support owed to one obligee is unaffected by any interference by another obligee with rights of custody or visitation granted by a court. Because the responsibility to provide child support is not interchangeable with the right to visit one's child, there can be no equal protection problem in requiring that child support obliqations be met despite the denial of visita.tion rights.

...

We also reaffirm our decision in Tn the Matter of the Adoption of S.L.R. the providing of (1982), 196 Mont. 411, 640 P.2d 886, that articles of clothing or other in-kind

payments does not satisfy a parent's obligation to contribute to the financial suppport of his or her child. Next, requirement there that is an no constitutional party be or statutory with

indigent

provided

court-appointed counsel in a civil proceeding.

The Court has

reviewed the cases cited by G.R.K. in support of his request for court-appointed counsel and finds that each involves a situation where the State is seeking to terminate parental rights pursuant to criminal statutes. matters. They are not civil

See Lassiter v. Dept. of Social Services (3981),

452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640. The fundamental requirements for due process axe "notice snd opportunity for hearing appropriate to the nature of the case." 339 U.S. Mullane v. Central Hanover Bank 306, 70 S.Ct. 652, 94 L.Ed.
&

Trust Co. (1950), G.R.K. received

865.

adequate notice of each hearing held in this matter, appeared at each hearing and presented support of his position. evidence and testimony in

We find no violation of G.R.K.'s

right to due process of the laws. The remaining issues raised by appellant require close scrutiny by this Court. G.R.K. contends
(5

40-8-111 (1)(a) (77)

,

MCA, is unconstitutional because of its vagueness. Respondent contends that this issue was not raised at the lower level. Therefore, we should not consider it on appeal. Respondent in

has apparently disregarded a memorandum filed by G.R.K. the lower court the morning of May precise issue was raised and

5, 1986, wherein the However, the

discussed.

Attorney General ' s constitution81

office has never been notified of the to the statute as required by

challenge

Rule 38, M.R.App.Civ.P.

Because appellant failed to timely

raise the issue in the lower court and because the Attorney Genera.llsoffice has not been given an opportunity to appear in this matter, we refuse to decide the constitutionality of
f;

40-8-111 (1)(a) (v), MCA. Nevertheless, if the statute is in fact vague,

objections other than those of a constitutional nature may be made. Courts must refuse to enforce legislation which is However, Courts are

deemed too uncertain to be applied.

granted the liberty of construing uncertain statutes in a reasonable legislature. 527. manner, keeping in mind the intent of the

Nice v. State (1973), 161 Mont. 448, 507 P.2d

See also McClanathan v. Smith (1980), 186 Mont. 56, 606 We take that liberty here.

P.2d 507.

Section 40-8-111 (1)(a)(v), MCA, states: Consent required for adoption. (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.)
G.R.K. objects to the term "support", contending that it is vague. We also have problems with the term "able".

We have previously construed "support1'to be support that a parent owes a child". Adoption of Smigaj (1977), 171 Mont.

" financial
141. (Mont.

In the Matter of the
537, 560 P.2d

Later, in In the Matter of the Adoption of R.A.S.

1984), 679 P.2d 720, 41 St.Rep. 451, we held that even if a parent had made a child support payment less than twelve

months prior to the filing of an adoption petition, the payment would not trigger the consent requirement if it was actually applied to child support due and owing for more than twelve months prior to the filing of the petition. These decisions are consistent with the importance of child support. They give notice to parents that they must

provide more than token support once or twice a year or risk having their parental rights terminated. However, because of

this definition of "support", we must be especially careful in determining whether a parent is "able" to contribute to the support of the child. Otherwise, parents who forego a.11

but the necessities of life in order to make partial child support payments might be unfairly penalized. Caution must be exercised when determining who is "able" to contribute to the support of their child. We recently

affirmed a lower court's determination that the "statutory ability to pay child support cannot be determined solely by the natural parent's income." The ability to contribute must

also take into account the parent's ability and desire to earn an income. In the Matter of The Adoption of B.L.P. In that case,

, (Mont. 1986), - P.2d - 43 St.Rep. 2116.
position. court

the father left a stable job for a potentially more lucrative The second job failed to materialize. father's The lower financial

found, and we agreed, that the

priorities did not include providing child support, despite his ability to do so. Conversely, when determining whether a parent is "able" to contribute support to the child, we must also examine the parent's willingness to work and willingness to meet only his basic needs before providing for his child. Thus, in

determining whether a parent is "able" to contribute to the

support of the child, the trial judge must examine several factors, includinq:
1)
2)

The parent's ability to earn an income; The parent's willingness to earn an income and

support his child; 3)
4)

The availability of jobs; The parent's use of his funds to provide himself

only with the bare necessities of life prior to providing support for his child. Applying the above factors to the case at bar, we find
no error in the lower court's determination that G.R.K.

was

able to contribute to the support of his child. entered into evidence by G . R . K .

Exhibits

indicate that his average

monthly income for the 12 months immediately prior to the filing of the petition was $750. The same exhibit shows his

monthly expenses for food, utilities and rent ranged from $455 to $530 a month. Thus, there existed, on the average,

between $220 and $295 a month from which some child support could have been paid.
G.R.K.

voluntarily chose not to make He therefore

child support payments with this extra money. must face the consequences.

There is sufficient evidence to support the decision of the trial judge.
It is affirmed. .
F

f

Justice

/'

--

,

We Concur:

Chief Justic



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