Appeal from the District Court of Natrona County The Honorable Scott W. Skavdahl, Judge
The opinion of the court was delivered by: Kite, Chief Justice.
Before KITE, C.J., and GOLDEN, HILL, VOIGT, and BURKE, JJ.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of typographical or other formal errors so correction may be made before final publication in the permanent volume.
[¶1] EOS, biological mother (Mother), appeals from the order allowing JLS's and RS's (Father and Stepmother) petition to adopt minor child, RMS, to proceed without Mother's consent because she did not pay child support for a year before the petition was filed. She claims there was insufficient proof that her failure to pay child support was willful.
[¶3] Mother presents the following issue on appeal:
1. The District Court abused its discretion by allowing the petition for adoption to proceed without the consent of the Appellant (Respondent). The evidence was insufficient to support a finding that the Appellant had willfully failed to pay child support.
Although phrased differently, Father and Stepmother essentially present the same issue.
[¶4] Mother and Father are the biological parents of RMS. The parents divorced in 2006, and were initially awarded joint custody of the child. In 2008, the district court issued a modification order granting Father primary custody of RMS and requiring Mother to pay $250 per month in child support. Later that year, Father married Stepmother. Mother made one partial child support payment in April 2008, but thereafter did not pay any child support.
[¶5] On March 2, 2010, Father and Stepmother filed a petition to adopt RMS. They asserted that the adoption should be granted without Mother's consent under Wyo. Stat. Ann. § 1-22-110(a)(iv) (LexisNexis 2009) because she had willfully failed to contribute to the support of RMS for one year immediately prior to filing the adoption petition. At the time the petition was filed, Mother was over $5,000 in arrears on her child support obligation.
[¶6] Mother conceded that she had not paid child support and she did not bring her support obligation current after the petition was filed. She asserted, however, that her failure to pay support was not willful because she was unemployed and did not have the ability to pay. The district court held a hearing and ruled that Father and Stepmother had established by clear and convincing evidence that Mother's ...