Garcia v. Canales (434 S.W.2d 895, 1968)

OPINION

SHARPE, Justice.

This is an adoption proceeding in which appellee, Rodolfo Canales, sought to adopt Marlon Eric Garcia, a boy born on August 29, 1957, to the marriage of Erasmo Garcia, appellant, and Elva S. Garcia, who were married on June 24, 1956, and divorced on February 4, 1960. The decree awarded custody of the minor child to his mother and ordered that the father pay the sum of $42.50 per month as child support. The mother subsequently married Rodolfo Canales on March 24, 1960 and then became Elva S. Canales. On December 2, 1966, Rodolfo Canales filed a petition for adoption of said minor child which was joined in by the mother. On January 17, 1967, appellant, the natural father intervened and opposed the adoption.

The case was tried on September 11, 1967 before the court and jury. The single special issue and the jury answer thereto are as follows:

“SPECIAL ISSUE NO. 1:

Do you find from a preponderance of the evidence that the Intervenor, Erasmo Garcia, failed to contribute substantially to the support of the minor child, Marlon Garcia, commensurate with his financial ability to do so, during any two-year period prior to the date of this trial ?

You will answer this issue ‘yes’ or