Danny Holsted v. Mark McVay

ca00-398

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

ANDREE LAYTON ROAF, Judge

DIVISION IV

DANNY HOLSTED

APPELLANT

V.

MARK MCVAY

APPELLEE

CA 00-398

FEBRUARY 7, 2001

APPEAL FROM THE PROBATE COURT OF BRADLEY COUNTY

[AD-99-35-1]

HONORABLE ROBERT C. VITTITOW, PROBATE JUDGE

AFFIRMED

Danny Holsted appeals from the trial court's order granting the adoption of his biological son, "DJ" to DJ's step-father, Mark McVay. On appeal, Holsted argues that the trial court erred (1) in finding that his consent is not required, because the actions of Mark McVay and Ladonna Holsted McVay, DJ's mother, prevented his performance; (2) in finding that it was in DJ's best interest to be adopted by Mark McVay; (3) in overruling his objection to testimony regarding his other children; and (4) in failing to direct a verdict in his favor because the McVays failed to produce DJ. We affirm.

Ladonna Holsted McVay (Ladonna) and Danny Holsted (Holsted) were married in February of 1993 and divorced in May of 1996. Ladonna was awarded custody of DJ, and Holsted wasawarded reasonable visitation and ordered to pay $53 per week in child support. Ladonna later married Mark McVay, and they had a son.

On January 7, 1998, Ladonna filed a complaint alleging that Holsted was $4,346 in arrears in his child support obligation. According to the court records, Holsted last paid child support on July 29, 1996. After a hearing in which Holsted did not appear, the trial court found Holsted in willful contempt, suspended his visitation, and enjoined him from any contact with his child until he petitioned the court to reinstate visitation. Holsted was also given the opportunity to purge himself of the contempt by paying the support owed. The order provided if Holsted failed to purge himself of the contempt, he was to report to authorities to be detained until he could pay the owed support. Holsted failed to either pay or appear.

On July 16, 1999, Mark and Ladonna McVay filed a petition in which Mark McVay sought to adopt DJ. After Holsted was served with notice of the petition, he filed a response, filed a counter petition for visitation, and also filed a petition for contempt in the divorce case. Ladonna filed a response to Holsted's petition in chancery court and obtained an order for body attachment. Holsted appeared in court on December 6, 1999, without enforcement of the body attachment.

On December 6, 1999, the court heard both the chancery and probate cases in a consolidated trial. Holsted and Ladonna testified. They both testified that the last time Holsted saw DJ was in January of 1998. They also both testified that Holsted's daughter from a prior marriage had been adopted; Ladonna testified that Holsted consented to the adoption but Holsted denied this. Ladonna stated that Holsted had regular visitation with DJ until she married Mark McVay, after which the relationship became strained. Ladonna acknowledged that Holsted had a good relationship with his son when he saw him. She testified that Holsted attempted to contact her via her mother in November of 1998 to notify her about the death of his uncle. Ladonna testified that she had moved,did not notify Holsted of her new location, had an unlisted phone number, and that she did not contact Holsted after receiving the message from her mother. She testified that Holsted had once threatened to take DJ to North Carolina and that she was concerned about DJ staying with Holsted. Ladonna stated that DJ received a Christmas card that contained a check from Holsted's mother, Zella Holsted, but that DJ had not received anything from his father. Ladonna testified that she believed it was in DJ's best interest to be adopted by her husband, Mark McVay. She stated that DJ called McVay "dad," and McVay considered DJ his son.

Holsted testified that he had been working as a truck driver since December of 1997, that he stopped paying child support because he was "being rebellious," and that he resumed payment in October of 1999 by wage assignment. He acknowledged that in January of 1998 he had threatened Ladonna, but stated that he regretted it and had no intention to follow through with it. He also testified that he did not attempt to have visitation reinstated but that he loved his son and thought of him all the time. He stated that he did one time get in a bind with DJ regarding a load he had to take to North Carolina and that he said he would have to take DJ with him if Ladonna did not come and get him, but he would never have taken DJ to North Carolina and not returned him.

Zella Holsted, Holsted's mother, testified that she did send DJ a Christmas card and a check, but that it was actually from both her and Holsted. She stated that she thought her son and grandson had a wonderful relationship and that they thought the world of each other but acknowledged that he had not seen DJ since January of 1998. She testified that her relationship with Ladonna was wonderful and that she thought she was a good mother. She stated that she helped her son obtain his wage assignment for payment of child support.

After hearing the testimony, the trial court issued written findings that Holsted's consent to the pending adoption was not required as he had, for more than a year, failed significantly withoutjustifiable cause to provide for the care and support of the child as required by law and that it would be in the child's best interest for the petition of adoption to be granted. The McVays were ordered to appear at a later date, with the child to be adopted, for a final hearing on the petition. On December 17, 1999, the petition for adoption was granted. This appeal followed.

This court reviews probate proceedings de novo, and the decision of the probate court will not be disturbed unless clearly erroneous, giving due regard to the opportunity and superior position of the trial judge to determine the credibility of the witnesses. Dale v. Franklin, 22 Ark. App. 98, 733 S.W.2d 747 (1987). ··²StarPage²····²StarPage²····²citeas((Cite as: 62 Ark.App. 89, *93, 968 S.W.2d 657, **660)²····²citeas((Cite as: 62 Ark.App. 89, *93, 968 S.W.2d 657, **660)²··The personal observations of the trial judge are entitled to even more weight in cases involving the welfare of a small child. In the Matter of Adoption of Titsworth, 11 Ark. App. 197, 669 S.W.2d 8 (1984).

Holsted's first argument on appeal is that the trial court erred in finding that his consent was not required for the adoption of DJ, in that the actions of the McVays prevented his performance. Arkansas Code Annotated section 9-9-207(a)(2) (Repl. 1998) provides that consent to the adoption is not required of "[a] parent of a child in the custody of another, if the parent for a period of at least one (1) year has failed significantly without justifiable cause (i) to communicate with the child or (ii) to provide for the care and support of the child as required by law or judicial decree." The party seeking to adopt a child without the consent of the natural parent bears the heavy burden of proving by clear and convincing evidence that the party failed significantly and without justifiable cause to communicate with the child. Taylor v. Hill, 10 Ark. App. 45, 661 S.W.2d 412 (1983). Justifiable cause means that the significant failure must be willful in the sense of being voluntary and intentional; it must appear that the parent acted arbitrarily and without just cause or adequate excuse. Id. Holsted asserts that the facts of his case show not a willful effort on his part to avoid his duty of contact and support, but an intentional effort on the McVays to frustrate and entrap him. Thisargument is without merit.

In Vier v. Vier, 62 Ark. App. 89, 968 S.W.2d 657 (1998), this court held that a father's failure to communicate with his child was unjustified in spite of his claim that he failed to visit because the mother and her new husband did not permit visitation. In Vier, evidence showed that the father placed only six short telephone calls to the mother over a period of more than a year, never attempted to effect his visitation through legal intervention, and while he claimed to have written one letter to the mother, it was never received. While it is true that Ladonna testified that she made no effort to let Holsted know where she lived or what her phone numbers were, that she received a message from him that she did not return, and she received a Christmas card from his mother, testimony established that Holsted did not go to court and attempt to have his visitation rights enforced. The trial court may consider as a factor the parent's failure to seek enforcement of his or her visitation rights during the relevant one-year period. Vier, supra.

Further, the record clearly establishes that Holsted failed to provide for the care and support of DJ at least two years before the adoption petition was filed, well in excess of the required one-year period. There was no evidence to show that the McVays' conduct precluded Holsted from making his support payments. There was no evidence that Holsted was financially unable to meet his obligation, and the record clearly reflects that he voluntarily chose not to pay the support because he was being "rebellious." Though he resumed child support payments after receiving notification of the petition for adoption, resumption of payment of support, particularly after the commencement of the adoption proceeding or just prior thereto, is not sufficient to bar an adoption without the consent of the delinquent father by starting a new one year period of non-support under the statute. Pender v. McKee, 266 Ark. 18, 582 S.W.2d 929 (1979). The trial court's findings that the McVays established that there was lack of communication without justifiable cause and that Holsted failedsignificantly without justifiable cause to provide care and support of DJ were not clearly erroneous.

For his next point on appeal, Holsted argues that the trial court erred in finding that it was in DJ's best interest to be adopted by McVay. It is true that the mere fact that a parent has forfeited his right to have his consent to an adoption required does not mean that the adoption must be granted. The court must further find from clear and convincing evidence that the adoption is in the best interest of the child. Waldrip v. Davis, 40 Ark. App. 25, 842 S.W.2d 49 (1992). Clear and convincing evidence has been defined as being: ··²SDU_9²····²SDU_9²··

Evidence by a credible witness whose memory of the facts about which he testifies is distinct and whose narration of the details thereof is exact and in due order and whose testimony is so clear, direct, weighty and convincing as to enable the fact finder to come to a clear conviction, without hesitancy, of the truth of the facts related is clear and convincing.... This measure of proof lies somewhere between a preponderance of the evidence and proof beyond a reasonable doubt.... It is simply that degree of proof which will produce in the trier of fact a firm conviction as to the allegation sought to be established.

Kelly v. Kelly, 264 Ark. 865, 870, 575 S.W.2d 672, 675-76 (1979) (citations omitted).

Holsted argues that it was unbelievable that a trial court could rule it was in the best interest of DJ to be adopted by McVay when McVay did not testify or subject himself to cross-examination. He argues that the only evidence presented regarding McVay's relationship with DJ was from Ladonna. Ladonna, in discussing her husband's relationship with DJ, testified that DJ and McVay had a great relationship; DJ had asked if he could call McVay dad and has called him dad for years; that people outside the family did not realize that DJ was not McVay's son; that McVay considered DJ his son; and that McVay's family treats DJ like one of their grandchildren. Based on her testimony and the fact that the personal observations of the trial judge are entitled to even more weight in cases involving the welfare of a small child, we cannot say that the trial court's finding that it was in DJ's best interest to be adopted is clearly erroneous. Moreover, Holsted failed to raisethe argument that McVay's absence precluded the trial court from determining what was in DJ's best interest or precluded him from cross-examining McVay, either at trial or in a post-trial motion after he received the chancellor's letter opinion. This court will not consider errors raised for the first time on appeal. See Meadors v. Meadors, 58 Ark. App. 96, 946 S.W.2d 724 (1997).

Holsted also argues that the trial court ignored the petition for visitation he filed in October 1999 and disregarded the evidence concerning the good relationship he had with his son and the McVays' efforts to thwart his visitation. However, it was uncontroverted that Holsted had not seen his son for a year and a half before the petition for adoption was filed and had not paid support for more than two years. Both his petition for visitation and his resumption of support payments occurred after the adoption petition was filed. We cannot say that the trial court failed to consider this or any other evidence presented in determining that it was in the child's best interest to grant the adoption.

For his next point on appeal, Holsted argues that the trial court erred in overruling his objection to testimony regarding his other children. During Ladonna's direct examination, Holsted objected, based on relevancy, to questions relating to Holsted's other children from a prior marriage. The objection was overruled, and Ladonna testified that Holsted told her that he was behind on child support and that he consented to the adoption of his daughter in Tennessee. On direct examination, Holsted denied that he had consented to the adoption of his daughter, and Holsted's counsel again renewed his objection to the testimony regarding other children. The court stated, "I'm going to agree with you. I think it did have relevance if he had consented for adoption because of child support. He now denies that, but whether he's seen her or not, we all know all situations are different. Sustained." Holsted argues that these rulings are inconsistent and, after this information came in, it was prejudicial to his case. This argument is without merit.

We have held that during a trial and prior to final judgment, the trial court is at liberty to reconsider prior rulings and decisions. Looney v. Looney, 336 Ark. 542, 986 S.W.2d 858 (1999). Further, in cases tried without a jury, the judge is presumed to have considered only competent evidence, and that presumption is overcome only when there is an indication that trial judge did give some consideration to inadmissible evidence. Fields v. State, 36 Ark. App. 179, 820 S.W.2d 467 (1991). The trial judge's written findings and subsequent order make clear that the decision was based on Holsted's lack of contact with his child and his failure to pay child support and upon the uncontroverted testimony presented by Ladonna concerning the close relationship between DJ and McVay. In addition, the court's statements in sustaining Holsted's objection illustrate that he did not use Holsted's conduct in his relationship with his daughter as a blueprint for establishing his conduct in relation to DJ. A trial court's ruling on the relevancy of evidence will not be reversed absent an abuse of discretion. Farmers Bank v. Perry, 301 Ark. 547, 787 S.W.2d 645 (1990). Here, we can find no such abuse.

For his final point on appeal, Holsted argues that the trial court erred in failing to direct a verdict in his favor at the end of the McVays' evidence based on their failure to provide the appearance of the individual to be adopted. Arkansas Code Annotated section 9-9-214(a) (Repl. 1998) provides: "The petitioner and the individual to be adopted shall appear at the hearing on the petition, unless the presence of either is ··²SDU_3²····²SDU_3²··excused by the court for good cause shown." Section 9-9-214(b) further provides: "The court may continue the hearing from time to time to permit further observation, investigation, or consideration of any facts or circumstances affecting the granting of the petition." The trial court complied with this statute.

After Holsted's motion for a directed verdict, the court denied the motion and stated, "The Court is well aware that the appearance of the child is mandated. However, in these matters, I donot require the child to be here and sit through a contested hearing. I'm certainly not going to make a decision today. If, in fact, I grant the petition then the Petitioners will have to appear before the Court at some other time with the child." In Brown v. Fleming, 266 Ark. 814, 586 S.W.2d 8 (1979), our supreme court held that where the final decree of adoption recited "that all proper persons are before the court," it must be assumed the finding means that the children were present at the hearing. Here, the decree clearly states the child and both petitioners were present in the courtroom; therefore, the trial court clearly complied with the relevant statutes.

Affirmed.

Pittman and Baker, JJ., agree.