This OHIO case is about ACES founder, Geraldine Jensen...

Every father or mother in this group paying child support MUST forward this lawsuit on to their state and federal legislators. Perhaps you might fax this to ACES on their toll-free fax number and let them know, we're showing this lawsuit about their FOUNDER to every legislator that will listen.

In the Matter of the Adoption of Matthew Stephen Jensen and Jacob Paul Jensen
NO. L-80-087

COURT OF APPEALS, SIXTH APPELLATE DISTRICT, LUCAS COUNTY, OHIO
1981 Ohio App. LEXIS 11385

January 23, 1981

JUDGES: [*1]
John W. Potter, P.J., John J. Connors, Jr., J., Frank W. Wiley, J. concur.
Judge Frank W. Wiley, retired, sitting by assignment of the Chief Justice of the Supreme Court of Ohio.

OPINION:

DECISION & JOURNAL ENTRY

This cause came on to be heard upon the record in the trial court. Each assignment of error was reviewed by the court and upon review the following disposition made:

Respondent-appellant Stephen Gerharter is appealing a judgment entry of the Lucas County Court of Common Pleas, Probate Division, which found:

"Upon examination of the evidence adduced at the hearing the Court finds that respondent, Stephen Erwin Gerharter, has failed, without justifiable cause, to properly maintain and support his children for one year prior to the filing of the petition for adoption on September 5, 1979, and that his consent to this proceeding is not required pursuant to § 3107.07(A) of the Ohio Revised Code.

The judge then ordered that the petition for adoption should proceed according to law.

The two children who are the subjects of this adoption petition are Matthew Gerharter, born December 23, 1972, and Jacob Gerharter, born July 21, 1975.The children's parents', [*2] Stephen Gerharter and Geraldine Jensen, marriage was dissolved by the District Court of Dodge County, Nebraska, on February 24, 1977. Mrs. Jensen received custody of the two children along with possession of the family home with the obligation to make payments on the house. Mr.
Gerharter was awarded visitation rights and agreed to pay the debts of the marriage of approximately $5,000 along with $27.50 per child per week in child support Mr. Gerharter was to receive any profit Mrs. Jensen made from the sale of the family home if the house was sold within a year of the dissolution.

Mrs. Jensen moved to Toledo in August or September of 1977. At the hearing in probate court Mrs. Jensen testified she was three months behind on the mortgage payment on the family home and the bank was threatening foreclosure at the time she moved. She further testified she sold the house to a friend of a friend with the understanding that the buyer make the three back-payments and then assume the mortgage. Mr. Gerharter testified he offered to help his ex-wife make the back-payments because he didn't want her to lose the house, but she refused.

Prior to leaving Nebraska Mrs. Jensen had Mr. Gerharter [*3] sign an agreement that he would continue to make his child support payments even though Mrs. Jensen was taking the children out of state. Mrs. Jensen testified Mr. Gerharter signed this agreement voluntarily. Mr. Gerharter testified Mrs. Jensen gave him the agreement to sign five minutes before she left Nebraska. He stated he signed the agreement, without advice of counsel because Mrs. Jensen told him if he refused to sign he would never see his children again.

Mr. Gerharter's opportunities to visit with his children became severely limited after the children moved to Toledo. These limitations arose partly because of the 1500-mile distance between Omaha, Nebraska and Toledo, along with the fact that when Mr. Gerharter was in Toledo Mrs. Jensen would either refuse to let him see the children by stating the children had other plans, or would permit him to visit with the children, but only in her home. Mr. Gerharter's parents, who live in Maumee, testified that Mrs. Jensen had permitted the children to visit with them about once a month on the weekends until June of 1978. After that date Mrs. Jensen would no longer permit them to see the children nor give the children [*4] gifts from them or from Mr. Gerharter.

Mrs. Jensen did, however, permit Mr. Gerharter to give the children Christmas gifts for Christmas of 1978 and to visit with the children in her home. Mr. Gerharter also testified Mrs. Jensen would not let him talk with his children on the phone, and that the children never received letters he wrote to them.

Mr. Gerharter paid child support irregularly after Mrs. Jensen and the children moved to Toledo. In June of 1978, Mrs. Jensen initiated proceedings under the Uniform Reciprocal Enforcement of Support Act to get Mr. Gerharter to pay child support. Mrs. Jensen has initiated no other actions against Mr. Gerharter to obtain child support.

Mr. Gerharter made $500 in child support payments in June, July and August of 1978. Mr. Gerharter testified he stopped making payments on advice of counsel and began sending any extra money he had to his father with the instructions that his father was to spend the money on the children if his father was ever permitted by Mrs. Jensen to see the children. Mr. Gerharter's father testified that at the time of the hearing Mr. Gerharter had sent him about $2,100. Mr. Gerharter's father testified [*5] he deposited this money in his savings account. At the hearing the trial judge refused to admit an affidavit from an attorney in Omaha which supported Mr. Gerharter's testimony. Mr. Gerharter testified his refusal to pay support resulted from Mrs. Jensen's denial of his visitation rights. Mr. Gerharter has maintained medical insurance and life insurance on the children as required by the parties' dissolution.

Mr. Gerharter has had periods of unemployment since the dissolution of his marriage to Mrs. Jensen. He was laid off at the time of the hearing on the adoption petition. Despite these periods of unemployment, Mr. Gerharter managed to pay off the $5,000 debt of his marriage to Mrs. Jensen by August or September of 1979.

Mrs. Jensen married her present husband on April 27, 1979. The petition for adoption was filed September 5, 1979.

Respondent-appellant's first assignment of error is:

"1. THE TRIAL COURT ERRED IN FINDING THAT FATHER HAD WILLFULLY FAILED TO SUPPORT HIS CHILDREN."

R.C. 3107.07 provides in part:

"§ 3107.07 [Who need not consent].

"Consent to adoption is not required of any of the following:

"(A) A parent of a minor, when it is alleged in the adoption [*6] petition and the court finds after proper service of notice and hearing, that the parent has failed without justifiable cause to communicate with the minor or to provide for the maintenance and support of the minor as required by law or judicial decree for a period of at least one year immediately preceding the filing of the adoption petition or the placement of the minor in the home of the petitioner, whichever occurs first."
A recent opinion of the Ohio Supreme Court, In re Adoption of McDermitt (1980), 63 Ohio St. 2d 301, which interprets R.C. 3107.07, indicates that a trial court is not required to find that a parent has without justifiable cause, both failed to communicate and failed to support his child before the adoption can proceed without the parent's consent. Either failure of a parent to communicate without justifiable cause, or failure of a parent to support without justifiable cause is sufficient for a court to authorize adoption of the parent 's children without the parent's consent.

The trial judge found that Mr. Gerhart had failed to support his children without justifiable cause. On appeal this determination of the trial court can only be disturbed where [*7] it is clearly against the weight of the evidence.

In re Adoption of McDermitt, supra. Upon our review of the record, we find that the trial court's determination that Mr. Gerharter failed to support his children without justifiable cause is against the manifest weight of the evidence. The record is clear that since her divorce from Mr. Gerharter, Mrs. Jensen had severely limited Mr. Gerharter's opportunities to maintain a relationship with his children. First, she moved the children 1500 miles away from Mr. Gerharter. Mrs. Jensen then refused to let Mr. Gerharter see the children when he was in Toledo, or limited his visitation rights by only permitting him to visit with the children in her home. All of this was done without authorization of the court. Mrs. Jensen also denied Mr. Gerharter opportunities to talk with the children by phone and did not give them mail from him. She refused to let Mr. Gerharter's relatives, who did live in Toledo, visit with the children after June of 1978.

Mr. Gerharter testified that because his visitation rights were denied by Mrs. Jensen, on the advice of his counsel in Nebraska he stopped making support payments to his wife in August of 1978, [*8] and began making the payments to his father. At the time of the hearing both Mr. Gerharter and his father testified that Mr. Gerharter had paid his father approximately $2,100 at the time of the hearing, ostensibly to be held in escrow until his visitation rights had been determined.
The adoption of Mr. Gerharter's children without his consent would effectively terminate what remains of his relationship with his children. As was stated in In re Schoeppner (1976), 46 Ohio St. 2d 21:

" * * * Any exception to the requirement of parental consent must be strictly construed so as to protect the right of natural parents to raise and nurture their children. * * *"

See also In re Devore (1959), 111 Ohio App. 1. Because such important rights are involved, we find insufficient evidence in the record to establish that Mr. Gerharter stopped supporting his children without justifiable cause. Appellant's first assignment of error is found well taken.

Appellant's second assignment of error is:

"2. THE TRIAL COURT ERRED IN FAILING TO ADMIT INTO EVIDENCE THE AFFIDAVIT FROM FATHER'S ATTORNEY IN NEBRASKA."

Having held that appellant's first assignment of error is well taken, we need [*9] not reach the issue raised by this assignment of error.

On consideration whereof, the court finds substantial justice has not been done the party complaining and judgment of the Lucas County Common Pleas Court,
Probate Division, is reversed and cause is remanded to said court for assessment of costs. Costs assessed against appellees.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. See also Supp. R. 4, amended 1/1/80.