Estate of Patterson, In re, No. 12562

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: PREWITT; MAUS, P.J., and HOGAN
• Citation: 652 S.W.2d 252
• Parties: In re ESTATE OF Yolanda Y. PATTERSON and Teneille Y. Patterson, Minors. Maxine HAWTHORNE, Petitioner-Respondent, v. Harry W. PATTERSON, Respondent-Appellant.
• Docket Number: No. 12562
• Decision Date: 10 May 1983

Page 252

652 S.W.2d 252 In re ESTATE OF Yolanda Y. PATTERSON and Teneille Y.
Patterson, Minors.
Maxine HAWTHORNE, Petitioner-Respondent,
v.
Harry W. PATTERSON, Respondent-Appellant. No. 12562. Missouri Court of Appeals,
Southern District,
Division Two. May 10, 1983.

Page 253

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

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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

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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...