Guardianship of Lyons, In re
| Decision Date | 20 March 1963 |
| Citation | 233 Or. 616,379 P.2d 869 |
| Parties | In the Matter of the GUARDIANSHIP of Gerald Russell LYONS and Harold Harry Lyons, Minors. Ethel Jean PARMELE, Appellant, v. Mabel C. MATHEWS, Respondent. |
| Court | Oregon Supreme Court |
Thomas E. Brownhill, Eugene, argued the cause for appellant. On the brief were Riddlesbarger, Pederson, Brownhill & Ingerson, Eugene.
W. P. Mumford, Eugene, argued the cause for respondent. On the brief were Thompson, Mumford & Woodrich, Eugene.
Before McALLISTER, C. J., and ROSSMAN, PERRY, SLOAN, O'CONNELL, GOODWIN and DENECKE, JJ.
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 (ORS 126.135 was repealed January 1, 1962.)
Four 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 case?
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 P.2d 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 P.2d 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 P.2d 82 (1949); State et al. v. Young, 180 Or. 187, 193, 174 P.2d 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. In re Guardianship of Kentera, 41 Cal.2d 639, 262 P.2d 317 (1953); and see In re Estate of Ott, 228 Wis. 462, 466, 279 N.W. 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 jursidction 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 P.2d 213, 225 P.2d 768 (1950); Ellenburg v. Woodson, 131 Or. 440, 283 P. 27 (1929); Bryant v. Dukehart, 106 Or. 359, 369-370, 210 P. 454 (1922).
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. In re Estate of Ott, 228 Wis. 462, 279 N.W. 618, 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 P.2d 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...
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