Adoption of McLaughlin

SHINN, P. J.

This is an appeal by Hugh W. McLaughlin, father of a girl aged 7 and a boy aged 6, from an order of adoption in favor of James Wesley Dunn, Jr., the present husband of McLaughlin’s divorced wife.

The mother of the children had consented to the adoption and joined in the petition. By the divorce decree she was awarded custody of the children and the father was ordered

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to support them. The ground of the petition for adoption, based upon section 224 of the Civil Code, was that the father had wilfully failed and neglected for a period of over one year, immediately prior to September 22, 1955, to pay for the care, support and education of the children as provided in the decree, or otherwise, although able to do so. The father filed objections to the petition in which he denied wilful failure to pay for the care, support and education of the children, when able to do so, and it was further alleged that he did not consent to the adoption.

Section 224 of the Civil Code in relevant part provides: “A legitimate child can not be adopted without the consent of its parents if living; however, after the custody of any child has by any judicial decree, been given to the mother, and the father for a period of one year shall wilfully fail to pay for the care, support and education of such child when able to do so, then the mother alone may consent to such adoption. ...”

It is apparent from the statements of the court during the trial that the court determined that McLaughlin had failed for a period of a year immediately preceding the filing of the petition, September 22, 1955, to pay anything for the support of the children; that fact was clearly shown by the evidence; by the decree of divorce rendered January 25, 1951, he had been ordered to pay $120 per month; February 16, 1953, the amount was reduced to $90 per month to take effect when he had brought his payments up to date. By the decree he was given the right to visit the children but the order provided that he should have no right of visitation while in arrears in the required payments. At the time of the trial he was in arrears in the amount of some $1,600.

The sole factual question was whether McLaughlin had had the ability to pay for the care, support and education of the children and had wilfully failed to do so. At the commencement of the trial the court stated that this was the sole issue. Thereupon the attorney for McLaughlin interjected as another issue, whether the best interests of the children would be promoted by the proposed adoption, stating that there was a broad issue in addition to the one stated by the court. From that time on confusion reigned during the hearing which was, indeed, broad. The evidence, in major part, related to the father’s visiting the children, communicating with them by telephone, letter or post card, disputes as to whether he was in arrears in his payments at various