Parmele v. Mathews

379 P.2d 868, 233 Or. 616, 1963 Ore. LEXIS 308

• Court: Oregon Supreme Court
• Decided: March 20, 1963
• Status: Published

Opinions

GOODWIN, J.

This is a child-custody contest that was tried as a guardianship matter. The appeal is from an order denying a petition to revoke letters of guardianship.

Ethel Jean Parmele is the natural mother of two teen-age boys. Their father is dead. The parents had been divorced. Each had had a turn at custody. The father had custody at the time of his death. .

Mabel C. Mathews became acquainted with the boys during the lifetime of their father. Immediately upon the death of the father Mrs. Mathews assumed de facto custody of the two boys. She then filed a petition in the circuit court praying the appointment of herself as guardian of the persons and estates of the children. Both children joined in the petition of Mrs. Mathews. The petition was granted ex parte. No notice of this proceeding was given the natural mother. None was then required by ORS 126.135, as the children were over fourteen years of age and had consented to the guardianship. (ORS 126.135 was repealed January 1, 1962.)

Pour days after Mrs. Mathews was thus appointed, Mrs. Parmele filed her petition, which was accompanied by a show-cause order seeking the removal of Mrs. Mathews as guardian. Mrs. Parmele thought it necessary to seek the substitution of herself in that office, and accordingly prayed for her own appointment. Throughout this litigation, Mrs. Parmele has contested only the guardianship of the persons, and has disclaimed any interest in the estates of' the children.

On the issues framed by the order to show cause, the contest was between a fit parent and a fit stranger. The trial court decided that the best interests of the children would be served by permitting the surrogate mother to continue as their guardian.

The appeal presents these questions:

Was the probate court, under the facts of this case, the proper forum in which to try the child-custody contest?

If not, may the parties, by waiving the irregularity, invoke the power of the circuit court in another of its capacities, i.e., its general equity jurisdiction, to grant relief in this ease?

Finally, if the court had jurisdiction to act, and if the jurisdiction was properly invoked, did the court err when it denied the custody of the children to a fit parent and awarded custody to the guardian?

The parties themselves have not questioned the jurisdiction of the probate court to act as it did. Indeed, a recent reargument in banc was essentially a joint request for a decision upon the merits under a stipulation waiving all procedural irregularities. Unfortunately for the expeditious termination of this affair, however, we are not at liberty to arrive at what may be a desirable result simply because the parties want us to do so.

Jurisdiction to appoint guardians was vested in certain courts by ORS 126.105. The Lane County circuit court is such a court. ORS 3.130. The measure of the court’s authority in the administration of statutory remedies is to be found in the statute creating the procedure. Belmont v. Black et al, 218 Or 514, 520, 346 P2d 367 (1959). To invoke the jurisdiction of the court it is necessary to file a petition which will set forth the facts upon which the court can act. Dean et al v. First Nat’l Bank et al, 217 Or 340, 349, 341 P2d 512 (1959). Such averments may be statutory prerequisites to the exercise of jurisdiction, or they may be required by common-law rules. Thus, in Wright and Jones v. Edwards, 10 Or 298 (1882), it was held that a petition which failed to allege material facts essential to invoke the exercise of jurisdiction deprived the court of authority to act. See also Mumper v. Matthes, 186 Or 357, 377, 206 P2d 82 (1949); State et al v. Young, 180 Or 187, 193, 174 P2d 189 (1947).

In the case at bar, the jurisdictional facts which must exist before the court may exercise its power to appoint a personal guardian were: (1) that the proposed ward is a minor; (2) that he is a resident of the county; (3) that the proposed guardian is qualified; and (4) that the proposed ward needs the care of a guardian. ORS 126.120 (repealed Jan. 1, 1962). These elements must be alleged before any hearing can be held. Further, if any such element is not established, the court may not grant letters of guardianship. Guardianship of Rentera, 41 Cal2d 639, 262 P2d 317 (1953); and see Estate of Ott, 228 Wis 462, 466, 279 NW 618, 619 (1938).

Mrs. Mathews’ petition did not allege- a need for a guardianship of the persons. While the petition was thus defective as a petition for the appointment of a guardian for the persons of the two children, it did state grounds for the appointment of a guardian of their respective estates. Inasmuch as the guardian was appointed ex parte, the defect in the petition was never called to the court’s attention. When the letters of guardianship were issued, therefore, the situation was analogous to a default judgment granting the prayer of a complaint which had contained both a good cause of action and a defective one. In such cases, if the court has jurisdiction of the general class of litigation it has the power to enter the judgment. In the absence of a direct attack, such a judgment is no doubt final. See Altman v. School District, 35 Or 85, 56 P 291, 76 Am St Rep 468 (1899).

The court below obviously had jurisdiction to hear and decide guardianship matters. The guardianship of the estates was properly before the court. The petition to appoint a guardian of the persons was also before the court, improperly so because it was defective, but it was, nonetheless, pending in a court of competent jurisdiction. The appointment of the personal guardian, however, was subject to direct attack upon the motion of the natural mother. The petition for the removal of the guardian of the persons was such a direct attack. The fact that the natural mother’s petition also contained a totally unnecessary prayer that she be appointed as substitute guardian does not vitiate her petition insofar as it asked the removal of the previously appointed guardian.

Nothing in the guardianship code authorizes, much less makes necessary, the appointment of a personal guardian when a living parent is fit, ready, willing, and able to take the custody of his child. A fit parent needs no court to authorize him to rear his own children. See Volz et ux v. Abelsen, 190 Or 319, 327, 224 P2d 213, 225 P2d 768 (1950); Ellenburg v. Woodson, 131 Or 440, 283 P 27 (1929); Bryant v. Dukehart, 106 Or 359, 369-370, 210 P 454 (1922). (Statutes declaratory of the common law also could have been cited in Ellenburg v. Woodson and in Bryant v. Dukehart. See § 11-1305, Oregon Code 1930, and § 1314, Oregon Laws (Olson) 1920.)

The appearance in court of the natural mother (against whom there had been no allegation' of disability or unfitness) was analogous to a situation in which a person assumed to be dead appears in court and thereby puts an end to the probate of his estate. In such a case, since there is no factual basis for the probate proceedings, orders previously entered by mistake are null and void. They should be vacated whenever the true facts appear. Estate of Ott, 228 Wis 462, supra; Melia v. Simmons and another, 45 Wis 334 (1878).

In the case at bar, the court was originally called upon to act as a court administering the guardianship laws under the guardianship code. When it appeared to the court, as a matter of law, that the need for guardianship of the persons of the two children did not exist, because of the availability of a fit parent, the court should have vacated the order appointing Mrs. Mathews as guardian and dismissed the guardianship proceedings insofar as personal guardianship was concerned. Had it done so, most of the confusion which has followed would have been avoided.

If it later became necessary to obtain a decision concerning the best interests of the children as that issue might bear upon the ultimate right of rival parties to physical custody, other procedures would be open to them at such time as jurisdictional facts would be alleged and proven in an appropriate case, and upon proper pleadings. See, e.g., Ettin v. Robinson et ux, 221 Or 193, 349 P2d 1097 (1960) (habeas corpus), and ORS 419.476, which provides for children found in circumstances which bring them within the jurisdiction of the juvenile court. The issues actually tried in the case at bar were not, however, issues that can be tried in guardianship proceedings.

The guardianship court was not the proper forum in which to try the equitable issue concerning the best interests of the two children, because that issue was not before, the court so long as the court was considering the natural mother’s petition to set aside the ex parte letters of guardianship. Upon the pleadings before it, the guardianship court had jurisdiction either to continue or to revoke the appointment of Mrs. Mathews. The court exercised its jurisdiction erroneously. The court had, obviously, jurisdiction to err, but having erred (in not granting the mother’s request to vacate its former order), the court did not by its own error acquire jurisdiction to consider other matters which it might have considered as a circuit court if the mother had petitioned for a writ of habeas corpus challenging the custody in a stranger.

There is language in such cases as In re Going’s Estate, 183 Or 346, 353, 193 P2d 529 (1948), and In re Pittock’s Estate, 102 Or 47, 201 P 428 (1921), to the effect that a circuit court can proceed to decide legal and equitable questions which arise in connection with pending probate matters. These cases do not, however, authorize a court, merely because as a circuit court it could have jurisdiction of a particular subject, to assume jurisdiction of, and then proceed to decide, cases that are not properly before it.

As noted, the relative fitness of the two rivals was not before the court, because the first guardian’s only standing to dispute the natural mother’s right to custody would have evaporated as a matter of law if the trial court had ruled correctly upon the natural mother’s petition to revoke the letters of guardianship. Had the court ruled correctly, the condition of these proceedings would have been as follows: The natural mother would have been entitled to á court order vaeating the personal guardianship. The custody of the children, presumptively, would not then have required further litigation. As noted, a natural parent ordinarily does not need a court order before he can assert his parental right to custody.

In fairness to the learned trial court, it should be noted that the presumptive right of the natural mother to the immediate control of her children in the case at bar may indeed have been presumptive only. It is to be remembered that this unhappy case had its foundation in an antecedent divorce. It is suggested in the record that the children would have defied their mother. They said they preferred to remain in the de facto custody of their erstwhile guardian. Such a factual situation, if it should arise and were pleaded, might be cause for the issuance of a writ of habeas corpus. There was no need for an anticipatory writ, however.

The fact that the parties and the court below apparently treated this litigation as a continuation of the original divorce case between the natural parents of the children, as is shown by the authorities cited in the briefs, does not justify our approval of such an oversimplification. The instant case is not a continuation of the divorce case. It is a contest between a natural parent and a third party who is, in the eyes of the law, a stranger to the children. Under such circumstances, a body of substantive law quite different from that of divorce-custody litigation is called upon during the decision-making process.

Opinions written in divorce suits, where the only issue before the court was the welfare of children, are not necessarily relevant authority in a custody contest between a parent and a third party. The best interest of the child may indeed be a relevant factor in the ultimate decision, but this factor must be considered in a very different light when only one of the litigants comes into court with the natural rights of parenthood on his side of the case. See, for a discussion of the best-interest rationale in a slightly different context, Simons et ux v. Smith, 229 Or 277, 280-281, 366 P2d 875 (1961).

The case at bar illustrates the substantive errors into which counsel (and the trial court) may be led when proper attention is not given to procedural matters. In the case at bar, the court was led to decide issues that lay beyond the jurisdiction the court was originally called upon to exercise.

Part of the confusion surrounding the subject of jurisdiction in these cases is the result of the failure of litigants to recognize the dual operation of the principle of coram non judice. A judgment rendered in a court of competent jurisdiction upon a case which is not properly before the court is just as void as a judgment rendered upon a case before a court which has no jurisdiction to enter it. See Spoors v. Coen, 44 Ohio St 497, 9 NE 132 (1886).

We are asked to take advantage of general principles of equity in order to come to a decision on the merits in this case. To do so we must decide a question that was never properly before the trial court. Attractive as the procedural shortcut might appear to be, a decision on the ultimate merits between the two contesting women would accomplish nothing in this case except to make bad law. If we were to affirm an admittedly irregular decree of the trial court because it reached what may be a desirable result, we would be compounding the confusion that already exists in the statutory and case law concerning parent and child. If we were to reverse the case on the merits, we would likewise be- approving loose procedure. Further, the record suggests no guarantee that there would be realistic relief for the mother in any event. Some future court may tell the children where to live, if that becomes necessary, but courts cannot make grown boys love their mother if they choose not to. Whatever the future may hold, however, this court should not be on record approving a void guardianship.

The cause is reversed and remanded with instructions to vacate the order appointing a guardian of the persons of the children, without prejudice to the continuation of the guardianship of their estates, if appropriate. Neither party is to recover costs in this court.

Reversed and remanded.