Estate of Patterson, In re, 12562

Decision Date10 May 1983
Docket NumberNo. 12562,12562
Citation652 S.W.2d 252
PartiesIn re ESTATE OF Yolanda Y. PATTERSON and Teneille Y. Patterson, Minors. Maxine HAWTHORNE, Petitioner-Respondent, v. Harry W. PATTERSON, Respondent-Appellant.
CourtMissouri Court of Appeals

William W. Hoertel, Ronald D. White, Rolla, for petitioner-respondent.

J. Kent Robinson, Rolla, for respondent-appellant.

PREWITT, Judge.

Respondent petitioned the Probate Division of the Phelps County Circuit Court to be appointed guardian of the persons and of the estates of Yolanda Y. Patterson, then aged 5 years, and Teneille Y. Patterson, then aged 2 years. Appellant contested the appointments. After a hearing the trial court appointed respondent guardian of the estate and person of both children.

Respondent is the grandmother of the children and has physical custody of them in Phelps County. Her daughter, Cora Ford, was their mother. Respondent has lived in Phelps County for at least twenty years. She was on vacation from her employment and was visiting Cora Ford and the children in Syracuse, New York on July 19, 1981, when Cora Ford was killed in an automobile accident. Cora Ford was not married at the time the children were conceived and born. Appellant contends that he is the father of the children.

Prior to their mother's death, the children had lived in Syracuse with her since their birth. Appellant did not live with them at the time of Cora Ford's death, but claims to have previously lived with Cora Ford and after their birth with the children. He resides in Syracuse. Respondent testified that she talked to appellant during the week after Cora Ford's death and told him she intended to take the children to live with her and appellant replied that he "couldn't think of any better person that he would want them to be with." Appellant testified that respondent said she wanted to take the children home with her and he replied that she could "for now". A week after their mother was killed, respondent brought the children from Syracuse to Phelps County. From August until the month of the hearing, appellant sent respondent $100 a month for the support of the children.

Respondent's petition was filed slightly over three months after they came with her and they had lived with her over four months at the time of the hearing. The petition recites that one of the reasons for seeking the appointment is to enable the children to bring an action for the wrongful death of their mother.

Appellant asserts in his points relied on that the appointments were erroneous because under the Uniform Child Custody Jurisdiction Act, §§ 452.440-452.550, RSMo 1978 and RSMo Supp.1982, Missouri courts have no jurisdiction; that as appellant is the father of the children the court "was without authority to issue Letters of Guardianship of the person unless the Appellant was adjudged unsuitable or incompetent for the duties of guardianship." He also contends that he received insufficient notice of the guardianship hearing because under § 452.455.2, RSMo Supp.1982, he was entitled to 30 days to file an answer after receiving notice, and the hearing was held 23 days after he received notice. Each party's contentions are the same with respect to each child and neither party contends that the results as between the children should be different.

The parties have also treated the appointments as guardian of the persons and the appointments as guardian of the estates of the minors together and as not being subject to any different procedures or standards. However, we feel that at least in this situation, the appointments as guardian of the persons must be treated separately from the appointments as guardian of the estates.

The two offices are "distinct" and different persons may be appointed to each office. See Maus, Probate Law and Practice, § 1731, p. 133 (1960); § 475.090, RSMo 1978. It is apparent from chapter 475, RSMo 1978, "Probate Code--Guardianship", that while a guardian of the person and of the estate can be appointed at the same time and in the same proceeding, appointments of each can be made at different times and in different proceedings. The need for both a guardian of the estate and a guardian of the person may not exist at the same time. Although the procedure provided in chapter 475 for the appointment of both is essentially the same, it is necessary to consider them separately here because the Missouri version of the Uniform Child Custody Jurisdiction Act applies to "appointment of a guardian of the person". § 452.445(2), RSMo 1978. 1 It does not apply to the appointment of a guardian of the estate.

As a nonresident of Missouri, appellant was not eligible to be appointed by a Missouri court as either a guardian of the person or a guardian of the estate of either child. § 475.055.2, RSMo Supp.1982. The Uniform Child Custody Jurisdiction Act does not purport to cover eligibility to serve as guardian of the person.

We first consider whether respondent should have been appointed as guardian of the estates of the children. Section 475.035.1, RSMo 1978, provides for the appointment of a guardian in the county where the minor is domiciled or if there is no domicile, then where the minor resides or can be found. If the children were not domiciled in Phelps County, see State ex rel. Brown v. Hamilton, 202 Mo. 377, 100 S.W. 609, 611 (1907); Leflar, American Conflicts Law, § 12, p. 20, § 245, p. 495 (1977), they were at least residing there and could be found there. Due to the manner of their mother's death, there was a basis for the trial court to find that appointment of a guardian of the estates of the minors was proper in order to prosecute the wrongful death action. See § 475.130.3, RSMo 1978.

Assuming that he was entitled to notice, the notice appellant received was sufficient in a proceeding for the appointment of a guardian of the estate. Section 475.070, RSMo 1978, provides that notice of guardianship proceedings be given a parent as provided in § 472.100, RSMo Supp.1982. Except for publication, no time for the notice is fixed, and whether the notice provides a reasonable time is to be determined under the particular circumstances. Maus, supra, § 1748, p. 152. No reason is advanced why 23 days notice was not reasonable notice for a hearing on the appointment of a guardian of the estates of the children.

Respondent was the only person who had applied to be appointed guardian and the evidence indicated she was qualified. There was no contention otherwise. Appellant's evidence was all concerned with "custody" of the children and none of it related to who should manage their estates. Even if we assume that appellant qualifies as a "parent", see § 475.045, RSMo 1978, which might have entitled him to be appointed had he been a resident of Missouri, his nonresidency precluded his appointment. Appointment of respondent as guardian of the estates of the minors was proper.

However, because the Uniform Child Custody Jurisdiction Act, at least as adopted in Missouri, applies to appointments for guardian of the person, it does not necessarily follow that because the appointment of respondent as the guardian of the estates of the minors was proper, that the trial court was correct in appointing respondent as guardian of their persons. Although in most respects we can give effect to both chapter 475 and that Act, where there is a conflict, we follow the later. When two acts apply to one subject, the rule is to give effect to both if possible, but if any of their provisions are repugnant the later act, even without any repealing clause, operates to the extent of the repugnancy to repeal the first. City of Kirkwood v. Allen, 399 S.W.2d 30, 34 (Mo. banc 1966).

We now discuss appellant's contention that he did not receive proper notice of the hearings as it pertains to the appointments of a guardian of the persons of the children. As earlier noted we determined that under chapter 475, RSMo 1978, the notice to appellant was sufficient. However, as the Uniform Child Custody Jurisdiction Act applies to appointments of guardians of the person and as § 452.455.2, RSMo Supp.1982, provides for notice to parents and thirty days in which a parent may file an answer, and appellant did not receive that much notice, a different issue is presented. That issue is whether appellant is a "parent" under that Act and is entitled to notice and thirty days to answer.

In her petition respondent alleged that the father of the children "is unknown although one Harry Patterson appears on each of the children's birth certificates as father." Following the filing of the petition, the regular judge of the probate division 2 set a hearing 28 days later and ordered that appellant receive notice of the hearing. He was served 23 days before the hearing. By written motion appellant sought unsuccessfully to delay the hearing. He did not file an answer.

Section 452.455.2, RSMo Supp.1982, provides that "any parent whose parental rights have not been previously terminated ... must be served ... and may within thirty days after the date of service ... file a verified answer." Although subsection 1 of that section appears to apply only to modifications of previous custody decrees, subsection 2 would apply to this proceeding. 3 Absent such notice, if required upon appellant, the court could not appoint a guardian of the person. See Giles v. Anderst, 305 N.W.2d 381, 383 (S.D.1981).

Respondent contends that until appellant is "judicially determined to be the natural father of the children" he has no greater right than any other person and was not entitled to be treated as a party to these proceedings.

"Parent" as literally interpreted, refers to a natural father or mother, but in law is often limited to only designate a legitimate relationship between a mother, father, and their issue. See 67A C.J.S., p. 160-161. In State ex rel. Canfield v. Porterfield, 222 Mo.App. 553, 292 S.W. 85, 86-87...

To continue reading

Request your trial
16 cases
  • Ward v. Ward, 85,352.
    • United States
    • United States State Supreme Court of Kansas
    • September 14, 2001
    ...had relinquished jurisdiction and Wisconsin assumed jurisdiction). In addition, the Missouri Court of Appeals in In re Estate of Patterson, 652 S.W.2d 252 (Mo. App. 1983), held that under specific state statutes the UCCJA was deemed to apply to appointments of a guardian of the persons but ......
  • Estate of Seabaugh, 12669
    • United States
    • Court of Appeal of Missouri (US)
    • July 8, 1983
    ...was not even questioned. Roots v. Reid, 555 S.W.2d 54 (Mo.App.1977); Matter of Tepen, 599 S.W.2d 533 (Mo.App.1980); Hawthorne v. Patterson, 652 S.W.2d 252 (Mo.App.1983). Roots was an appeal by a nephew from a probate court order denying his application to be appointed guardian of the person......
  • Piedimonte v. Nissen, No. WD
    • United States
    • Court of Appeal of Missouri (US)
    • September 24, 1991
    ...as used in the Act, a proceeding for the appointment of a guardian of the person is a "custody proceeding." See In re Estate of Patterson, 652 S.W.2d 252, 254[1, 2] (Mo.App.1983). The court rested upon that section not only for its determination that the UCCJA applied to the guardianship pr......
  • Guardianship of Donaldson, F004333
    • United States
    • California Court of Appeals
    • March 5, 1986
    ...The Missouri courts likewise have applied the UCCJA to guardianship of the person actions involving minors. (In re Estate of Patterson (Mo.App.1983) 652 S.W.2d 252, 254-255.) Our research discloses no court rejecting application of the UCCJA to guardianship proceedings. We promote uniformit......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT