Guardianship of Denny

California Court of Appeal

Guardianship of Denny

218 P.2d 792, 97 Cal. App. 2d 763, 1950 Cal. App. LEXIS 1606

CourtCalifornia Court of Appeal

DecidedMay 26, 1950

DocketCiv. 14355

StatusPublished

Cited by5 cases

This text of 218 P.2d 792 (Guardianship of Denny) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Guardianship of Denny, 218 P.2d 792, 97 Cal. App. 2d 763, 1950 Cal. App. LEXIS 1606 (Cal. Ct. App. 1950).

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Opinions

NOURSE, P. J.

The petitioner and appellant sought letters of guardianship of his minor son aged 5 years. The trial court denied his petition.

The petitioner and respondent were married in 1941. They had two children. In 1946 respondent went to Nevada to get [764]*764a divorce, taking the older child, a girl, with her and leaving the younger, a boy, the subject of this controversy, with the father. By special agreement, and at the instance of respondent, the latter procured a condition in the Nevada decree that she should have custody of the daughter, and petitioner should have custody of the son. The respondent married another and made her home in Tracy. The appellant later remarried and retained his home in San Mateo County.

This condition continued for about three years when the respondent, under the false pretense that she would return the son to petitioner, procured the latter’s consent to let the son visit her in Tracy. She refused to return him and started a suit in San Joaquin County to obtain legal custody. That action was transferred to San Mateo County and was pending at the time of the hearing of this proceeding.

Appellant proved a prima facie case for letters of guardianship and offered to make further and fuller proof, but the offer was denied by the trial court. Respondent made no counter showing relying wholly upon her asserted invalidity of the Nevada decree, and her surreptitious possession of the minor. All the authorities without exception support appellant’s demand. He rested on a decree of the Nevada court awarding him custody of the minor and this decree was procured at the instance of respondent. If there was any fraud or imperfections in those proceedings they were all of the respondent’s own choosing and she cannot now attack the decree. (Estate of Davis, 38 Cal.App.2d 579, 585 [101 P.2d 761,102 P.2d 545] ; Hensgen v. Silberman, 87 Cal.App.2d 668, 671 [197 P.2d 356].) There are so many other cases of our appellate courts directly in point that it is sufficient to refer only to the recent ones of Foster v. Foster, 8 Cal.2d 719 [68 P.2d 719] ; and In re Kyle, 77 Cal.App.2d 634 [176 P.2d 96], where earlier decisions are cited.

This court heard the Kyle matter on habeas corpus. The facts were the same as appear here—a Nevada divorce, and award of custody of the minor to the father, and the surreptitious “stealing” of the child by the mother. She made the same defenses as the respondent makes here. We ordered that the child be restored to the rightful parent before the mother could invoke the processes of the court and the same practice should be followed here.

Under section 1405 of the Probate Code a guardian of a minor is to be appointed “whenever necessary or convenient.” The petitioner was entitled to make such proof but he was [765]*765denied that right. Though granting of the petition is to some extent discretionary, judicial discretion cannot be fairly exercised when the interested party is denied the right to present his proof. The petitioner here should be permitted to show that the appointment of a guardian for the minor was either necessary or convenient and the decision of that question cannot be wholly governed by a rejection of the Nevada decree.

Order reversed.

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NOURSE, P. J.

The petitioner and appellant sought letters of guardianship of his minor son aged 5 years. The trial court denied his petition.

The petitioner and respondent were married in 1941. They had two children. In 1946 respondent went to Nevada to get [764]*764a divorce, taking the older child, a girl, with her and leaving the younger, a boy, the subject of this controversy, with the father. By special agreement, and at the instance of respondent, the latter procured a condition in the Nevada decree that she should have custody of the daughter, and petitioner should have custody of the son. The respondent married another and made her home in Tracy. The appellant later remarried and retained his home in San Mateo County.

This condition continued for about three years when the respondent, under the false pretense that she would return the son to petitioner, procured the latter’s consent to let the son visit her in Tracy. She refused to return him and started a suit in San Joaquin County to obtain legal custody. That action was transferred to San Mateo County and was pending at the time of the hearing of this proceeding.

Appellant proved a prima facie case for letters of guardianship and offered to make further and fuller proof, but the offer was denied by the trial court. Respondent made no counter showing relying wholly upon her asserted invalidity of the Nevada decree, and her surreptitious possession of the minor. All the authorities without exception support appellant’s demand. He rested on a decree of the Nevada court awarding him custody of the minor and this decree was procured at the instance of respondent. If there was any fraud or imperfections in those proceedings they were all of the respondent’s own choosing and she cannot now attack the decree. (Estate of Davis, 38 Cal.App.2d 579, 585 [101 P.2d 761,102 P.2d 545] ; Hensgen v. Silberman, 87 Cal.App.2d 668, 671 [197 P.2d 356].) There are so many other cases of our appellate courts directly in point that it is sufficient to refer only to the recent ones of Foster v. Foster, 8 Cal.2d 719 [68 P.2d 719] ; and In re Kyle, 77 Cal.App.2d 634 [176 P.2d 96], where earlier decisions are cited.

This court heard the Kyle matter on habeas corpus. The facts were the same as appear here—a Nevada divorce, and award of custody of the minor to the father, and the surreptitious “stealing” of the child by the mother. She made the same defenses as the respondent makes here. We ordered that the child be restored to the rightful parent before the mother could invoke the processes of the court and the same practice should be followed here.

Under section 1405 of the Probate Code a guardian of a minor is to be appointed “whenever necessary or convenient.” The petitioner was entitled to make such proof but he was [765]*765denied that right. Though granting of the petition is to some extent discretionary, judicial discretion cannot be fairly exercised when the interested party is denied the right to present his proof. The petitioner here should be permitted to show that the appointment of a guardian for the minor was either necessary or convenient and the decision of that question cannot be wholly governed by a rejection of the Nevada decree.

Order reversed.

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218 P.2d 792, 97 Cal. App. 2d 763, 1950 Cal. App. LEXIS 1606, Counsel Stack Legal Research, https://law.counselstack.com/opinion/guardianship-of-denny-calctapp-1950.

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