McCannv.Duggan

Court of Appeals of GeorgiaJan 18, 1978
144 Ga. App. 547 (Ga. Ct. App. 1978)
144 Ga. App. 547241 S.E.2d 647

54847.

ARGUED OCTOBER 31, 1977.

DECIDED JANUARY 18, 1978.

Adoption. Lowndes Superior Court. Before Judge Elliott.

Bennett, Wisenbaker Bennett, Michael S. Bennett, for appellant.

Walker, Yancey Gupton, J. Stephen Gupton, for appellee.


McCann appeals from the denial of his petition for adoption. He alleges the trial court erred in overruling his motion to dismiss appellee's answer, in overruling his "motion for judgment on the pleadings and testimony," and in entering a judgment based on findings of fact unsupported by the evidence. We find no error and affirm.

McCann married Duggan's former wife, Carol, and petitioned for the adoption of Duggan's natural, minor child, born of Carol during her marriage to Duggan. The decree divorcing Duggan and Carol awarded her custody of the child and ordered him to provide child support. Duggan did not consent to the adoption, and McCann's petition alleged that such consent was unnecessary, as Duggan had wantonly and wilfully failed to comply with the support order.

1. The court properly overruled McCann's motion to dismiss Duggan's answer which, contrary to McCann's allegation, did state a legal defense.

2. The remaining enumerations of error deal with the sufficiency of the evidence to support the court's finding of fact that Duggan did not wilfully and wantonly fail to comply with the support decree so as to render unnecessary his consent to the adoption. Code § 74-403 (2) (Ga. L. 1967, pp. 107, 108) (repealed by Ga. L. 1977, p. 201). We cannot say the court's finding was "clearly erroneous," as there was evidence that, during the twelve-month period immediately preceding the filing of the adoption petition, Duggan had tendered the support payments, some of which Carol had accepted and some of which, for no reason, she had rejected. CPA § 52 (Code Ann. § 81A-152). There being evidence to support that finding, we find no error in the denial of the petition. Long v. Kingsfield, 135 Ga. App. 23 ( 216 S.E.2d 904) (1975).

Judgment affirmed. Bell, C. J., and McMurray, J., concur.

ARGUED OCTOBER 31, 1977 — DECIDED JANUARY 18, 1978.