BlOnl v. Haselton
| Decision Date | 06 October 1926 |
| Citation | 134 A. 606 |
| Court | Vermont Supreme Court |
| Parties | BlONl et ux. v. HASELTON. |
Exceptions from Rutland County Court; Frank L. Fish, Judge.
Petition by Orlando Bioni and wife against Maud S. Haselton, guardian of Mary Bioni, to have guardian set aside. Petition denied, and petitioners appealed to county court, which dismissed the proceedings, and petitioners except. Judgment reversed, and appointment revoked.
Argued before POWERS, SLACK, and BUTLER, JJ., and MOULTON and CHASE, Superior Judges.
Fenton, Wing & Morse, of Rutland, for petitioners.
Jones & Jones, of Rutland, for petitionee.
MOULTON, Superior Judge. Mary Bioni is the daughter of the petitioners Orlando Bioni and his wife Concetta Bioni, who live in Brooklyn, N. Y. In the summer of 1915, when Mary was about five years of age, her health was delicate, and through the instrumentality of a young woman connected with the Presbyterian church, which her parents attended, she was sent to Mt. Tabor, in this state, as a fresh air child. She was received into the household of Mrs. Haselton, her present guardian, where she remained for about three weeks, after which time she returned to her parents. In 1917, her health still being delicate, she was sent to Vermont by the church fresh air committee, and stayed with Mrs. Haselton until late in the fall, when she again returned to her parents. In the spring of 1918 Mrs. Haselton invited Mary to come to her house. She came, and, except for visits to her parents each year, other than 1922 and 1924, she has since remained there. She went to school in Mt. Tabor, and was graduated from the graded school in June, 1924, and in the fall of the same year entered the high school. Mary's parents did not intend that their daughter should remain permanently in Mt Tabor, and her sister came to her graduation with the intention of taking her back to Brooklyn, but Mary was not inclined to go.
Mr. and Mrs. Bioni are, as their names imply, Italians. They usually converse in Italian, since they speak and understand English imperfectly. They are people in comfortable circumstances, and have a home suitable for the comfort and bringing up of Mary. Mrs. Haselton is a woman of excellent character, with a good home, where Mary has been made very happy. She has in the main supported Mary during her stay in Mt. Tabor, and has provided most of her clothing and desires to have Mary remain with her. The petitioners have sent Mary some money and have furnished some clothing since she went to Mt. Tabor, but the amount of clothing furnished by them has been inconsiderable in comparison with that furnished by Mrs. Haselton.
Mary does not want to return to her parents. She does not speak Italian. She does not know her parents' acquaintances. She does not like their way of living. She prefers to remain with Mrs. Haselton in Mt. Tabor.
On September 3, 1924, upon the application of Mrs. Haselton and Mary, without notice to Mary's parents, and without the introduction of any evidence in support of the allegations of the petition, the probate court appointed Mrs. Haselton guardian of the young girl. The petition was brought under the provisions of G. L. 3638, subd. 3:
Alter the appointment had been made, Mary's parents learned of it, and her mother and older sister came to Mt. Tabor, and attempted to persuade her to return to Brooklyn. Mary was obdurate, and her parents thereupon brought a petition to the probate court seeking to have the guardian set aside. The petition was denied, and an appeal was taken to county court. That court, after hearing, made a finding of the facts, which have been above detailed, and, having concluded that "on the question of the good of Mary we think on the whole her interests in life will be better served by her remaining with Mrs. Haselton," dismissed the proceeding. The petitioners bring the case here on exceptions.
The petitioners attack the appointment of Mrs. Haselton as guardian on two grounds. They say it is null and void because no notice of the application was given them and because it was made by the probate court without any evidence having been introduced in support of the petition.
It is a rule of general application that no one shall be deprived of any property or right by judicial process without notice and opportunity to be heard. In re Allen, 82 Vt. 365, 371, 73 A. 1078, 26 L. R. A. (N. S.) 232; Windsor v. McVeigh, 93 U. S. 277, 23 L. Ed. 915; Mason's Guardian v. Mason, 86 Vt. 279, 281, 84 A. 969; Perry v. Perry, 94 Vt. 487, 489, 490, 111 A. 632; Chase v. Hathaway, 14 Mass. 222. The Fourteenth Amendment of the federal Constitution provides that no state shall "deprive any person of life, liberty, or property, without due process of law," and, as said in Re Gannon, 16 R. I. 537, 538, 18 A. 159, 160 (5 L. R. A. 359, 27 Am. St. Rep. 759):
"Without attempting to define the exact meaning of the phrase 'due process of law' it suffices for the present inquiry to say that it means at least some legal procedure in which the person proceeded against, if he is to be concluded thereby, shall have an opportunity to defend himself."
The statute under which the application for guardianship was brought does not specifically provide for notice to the parents of the minor; but it does not follow that it is wanting in due process of law. There being no express requirement to the contrary, the statute will not be interpreted to authorize judicial proceedings without notice to the parties to be affected by them. In the absence of a plain provision to this effect, the common law requires that notice shall be given. In re Allen, 82 Vt. 365, 372, 373, 73 A. 166, 26 L. R. A. (N. S.) 232.
A parent has the right, at common law, to the custody, control, and services of Ms minor child. The right to the minor's services is a species of property, and the parent may maintain an action for the wrongful interference with this right "per quod servitium amisit." Fitzgerald v. Connors, 88 Vt. 365, 368, 92 A. 456; Trow v. Thomas, 70 Vt. 580, 584, 585, 41 A, 652; Judd v. Ballard, 66 Vt. 668, 673, 30 A. 96; Kenure v. Brainerd & Armstrong Co., 88 Conn. 265, 91 A. 185; Brackett v. Brackett, 77 N. H. 68, 87 A. 252; Lawyer v. Fritcher, 130 N. Y. 239, 29 N. E. 267, 14 L. R. A. 700, 27 Am. St. Rep. 521.
The right, however, to the custody of the minor child is subject to limitations. As is said in Lippincott v. Lippincott, 97 N. J. Eq. 517,...
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