Edward v. Edward

BERRY, Justice: Husband and wife petitioned to adopt wife’s children by her previous marriage to children’s natural father. As part of the adoption proceedings, husband and wife asked trial court to declare the children eligible for adoption without consent of the [210] natural father. Their reason was that natural father had willfully failed to support the children for 12 months next preceding filing of petition for adoption. 10 O.S. Supp.1974 § 60.6. On hearing to determine whether natural father’s consent would be required husband and wife prevailed. The natural father moved trial court to certify the order for interlocutory appeal [12 O.S. 1971 Ch. 15, App. 2, Rule 1.50]. After this order was certified, natural father filed his petition for writ of certiorari in this Court [12 O.S. 1971 Ch. 15, App. 2, Rule 1.52] on time [Ibid., Rule 1.51] and in due time we granted certiorari. We granted certiorari to review trial court order on authority of our opinion in Davis v. Neely, Okl., 387 P.2d 494. In that case we determined orders declaring children eligible for adoption without consent of natural parents were interlocutory orders. Since that case was decided we have extensively revised the rules of procedure in this Court. Under our present rules orders declaring children eligible for adoption without consent of natural parents are final orders and appealable as such by the aggrieved parent. 12 O.S. 1971 Ch. 15, App. 2, Rules 1.10(a) and 1.11(b). Hereafter, parents aggrieved by such an order should proceed in this Court by direct appeals. Davis v. Neely, supra, to the extent it is inconsistent with the views expressed herein, is overruled. Natural father raises two propositions on appeal. However, we find it necessary to consider only the question whether trial court erred in finding natural father’s failure to support for one year prior to commencement of action to adopt was willful. Evidence is unquestioned that natural father did not provide support for one year prior to commencement of adoption action. On the matter of willfulness evidence is in sharp conflict. The natural father’s evidence tends to show he was willing to support, and attempted to contact the mother, but did not know precisely where the mother and children were living. The father claimed he did not actually send support money because he understood the money would be refused. Adoptive parents’ evidence tends to show the mother was willing to receive support money, but natural father sent none. Mother testified the father could always reach her through letters to her mother, even though her own address was kept secret from natural father. We have said: “Whether a parent has wilfully failed, refused or neglected to contribute support to a child to such extent as to obviate the necessity of obtaining his consent to her adoption is a question of fact for the trial court, and that court's decision will not be disturbed on appeal unless it is clearly against the weight of the evidence.” DeGolyer v. Chesney, Okl., 527 P.2d 844. Petitioner cites In re Gregory, Okl., 495 P.2d 1275, in support of his position. In the Gregory case, offers of support were refused by the natural mother. Failure of father to support was then cited as grounds for adoption by stepfather without consent. In this case the natural father offered to pay for the funeral of his third child, who died prior to the divorce. He then failed in his promise. During the entire course of the next few years the record discloses not one offer or attempt to furnish child support. Natural father would, from time to time at irregular intervals, call the mother’s parents and ask if child support could be sent. His testimony is that he was told not to send any support money. However, the record discloses on the only occasion support money was sent it was used for the children’s benefit. This occurred in December 1975, more than one year prior to commencement of this proceeding. We hold an inquiry concerning support does not amount to an offer of support. Where a parent makes a genuine offer of support, its refusal cannot later become the basis for an adjudication of failure to support. However, it is not enough to pose a [211] question about the likelihood of support being accepted. Support must be offered, and the offer rejected, to avail the party of the protection set out in Gregory, supra. Even though the record does show mother was not free from fault in creating a condition which encouraged father’s failure to support, we cannot say trial court’s judgment is against the clear weight of the evidence in finding the father willfully failed to support the children. We have carefully examined the record and the trial court’s decision is not against the weight of the evidence. We note the credibility of witnesses, and the weight to be given to testimony which is in conflict, are questions of fact within the sole province of the trial judge. Central Plastics Co. v. Goodson, Okl, 537 P.2d 330; Snodgrass v. State of Oklahoma ex rel. Department of Public Safety, Okl., 551 P.2d 259. Order of the trial court that the minor children are eligible for adoption without consent of the natural father is affirmed. LAVENDER, V. C. J., and IRWIN, BARNES and DOOLIN, JJ., concur. HODGES, C. J., and DAVISON, WILLIAMS and SIMMS, JJ., dissent.