Opinion
No. 82CA0968
Decided January 5, 1984. Certiorari Granted May 21, 1984.
Appeal from the District Court of El Paso County Honorable Matthew M. Railey, Judge
Nicholas J. Bourg, for appellant.
Mary Jane Looney, for appellee.
Division I.
In our previous consideration of this matter, In re Petition of R.H.N., 673 P.2d 805, (Colo.App. 1983), we remanded to the trial court for additional findings. Pursuant to that remand, the trial court has certified to this court its order containing additional findings of fact and conclusions of law.
Since the order of remand sets out the facts we will not restate them here, except to note that this case involves an incarcerated natural father's appeal of the trial court's issuance of a decree of adoption to the children's stepfather, based on the natural father's failure to provide reasonable support without cause for a period of one year or more. We remanded this matter to the trial court for a determination of two issues:
"(1) whether the father failed, during the 12-month period immediately preceding the filing of the stepfather's petition for adoption, to provide child support that was reasonable under the circumstances and, if so (2) whether that failure was without cause, pursuant to § 19-4-107(1)(e)(II) C.R.S. 1973 (1978 Repl. Vol. 8)."
The trial court answered both questions in the affirmative after making extensive findings of fact and conclusions of law, and we affirm its determinations.
As to the first question, the trial court found that during the 12-month period immediately preceding the petition for adoption, father was serving a sentence for aggravated robbery at the Colorado Department of Corrections. During this time, he was paid $1.50 per day, for a yearly total of $547. Father had paid no support at all for his three children, and used his money for cigarettes and soap.
The trial court concluded that:
"[A] caring father . . . would have provided some amount for the benefit of his children . . . . His necessities were being provided for at no expense to himself. Providing no support was unreasonable even under these dire circumstances."
We are bound by the trial court's factual determinations which are supported by the evidence. Page v. Clark, 592 P.2d 792 (1979). The trial court, in its order, acknowledged that father was unable to provide the $150 per month ordered as child support in the decree dissolving father's marriage to the children's mother. However, the test set out in § 19-4-107(1)(e)(II), C.R.S. 1973 (1978 Repl. Vol. 8) is whether reasonable support was paid. That determination must necessarily be predicated on a party's financial circumstances rather than on a rigid interpretation of a support order entered at a prior time. In re Petition of F.J.H., 628 P.2d 159 (Colo.App. 1981).
As to the second question, the trial court found that, since father could have paid some amount for the benefit of his children, his failure to provide any support was without cause.
The trial court's orders, read together, indicate that R.H.N. sustained his burden of proving father's failure without cause to provide reasonable support for a one-year period by clear and convincing evidence. The trial court's determination of the law was correct. Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L.Ed.2d 599 (1982).
Accordingly, the judgment is affirmed.
JUDGE PIERCE concurs.
JUDGE BERMAN dissents.