Guardianship and Conservatorship of Ankeney, Matter of, 83-1071

• Decision Date: 16 January 1985
• Docket Number: No. 83-1071,83-1071
• Parties: In the Matter of the GUARDIANSHIP AND CONSERVATORSHIP OF Randal David Robert ANKENEY. David Ankeney, Guardian and Conservator, Appellant.
• Court: Iowa Supreme Court

Page 733

360 N.W.2d 733

In the Matter of the GUARDIANSHIP AND CONSERVATORSHIP OF Randal David Robert ANKENEY David Ankeney, Guardian and Conservator, Appellant.

No. 83-1071.

Supreme Court of Iowa.

Jan. 16, 1985.

R. Eugene Knopf of Diehl, Clayton, Cleverley, Knopf & Williams, Newton, for appellant.

Charles G. Neighbor of Walker & Neighbor, Newton, for appellee.

Considered en banc.

SCHULTZ, Justice.

The controlling issue in this appeal is whether the district court, sitting in probate, may direct the guardian to provide the child access to a grandparent. The district court directed the guardian to provide the child visitation with the grandmother after finding that the best interest of the child would be served by such visitation. We hold the probate court has authority to direct the guardian's action and, under the limited facts of this case, properly exercised such authority. We affirm.

The minor ward, Randal Ankeney, was born in 1971. A Nebraska court dissolved the marriage of his parents, David and Carolyn Ankeney, and awarded Randal's custody to Carolyn. Carolyn and Randal moved to Baxter, Iowa, near the residence of Carolyn's mother, Lillian McWhirter. Randal lived in Baxter for approximately two years until Carolyn died on July 4, 1980, as a result of an automobile accident. David, who had remarried and had become a resident of Colorado, applied to the Jasper County Court to become Randal's guardian and conservator and was appointed to serve in those capacities on July 8, 1980. At that time Randal moved to Colorado with his father and stepmother, Mary Lou.

Randal has a close relationship with his maternal grandmother, Lillian, and his mother's family. Lillian, a widow, has two sons, five daughters, and several grandchildren. Randal maintained a close relationship with his family, including his two maternal great-grandmothers. After Randal moved to Colorado, David maintained a cooperative relationship with the McWhirters, allowing Randal to visit on a regular basis on special occasions, like Christmas, and during the summer for two or three weeks. The grandmother paid his airfare for these trips. During these periods there were extensive family visitations, and Randal was given the opportunity to visit with his former schoolmates from Baxter. David terminated these visitations when Randal's maternal uncle challenged David's actions as conservator.

As conservator, David received in excess of $74,000 in insurance money. There is an indication that more funds may be forthcoming for Randal from a wrongful death action in Iowa on behalf of his mother's estate and an inheritance from his maternal grandfather's estate. In October of 1982, David filed a conservator's report which alerted the McWhirters that Randal's insurance proceeds had been spent to purchase a new home for the Ankeney family. Although title was originally conveyed to David and Mary Lou Ankeney, they later conveyed a ".649%" interest in the home to Randal by warranty deed. David, as conservator, had not sought the court's permission to make such an investment. Randal's uncle, Robert McWhirter, filed a petition to remove David as conservator, alleging an unauthorized use of the insurance proceeds. It appears that the visitation problems were an outgrowth of this action by Randal's uncle. The petition for removal of the conservator was amended to add a request for visitation by the maternal grandmother, Lillian.

A hearing was set on the matter of visitation; although David did not appear in person, he was represented by his attorney. After hearing the testimony of several members of the McWhirter family on the issue of visitation, the court concluded that it had jurisdiction of the matter by virtue of the guardianship and "that it is in the best interest of the child that the previous visitation be continued." The court ordered that the guardian provide visitation between the ward and his grandmother, Lillian, and required that the guardian file a proposed visitation schedule within a time period. When that proposed visitation schedule was not filed, the court held a further hearing. At that hearing the guardian, through his attorney, declined to provide a visitation schedule; and the attorney made a professional statement that the stepmother, Mary Lou, had adopted Randal in a Colorado proceeding. The court then specified the visitation and ordered that the grandmother be responsible for all costs of transportation. This appeal followed.

I. We first address a procedural issue raised by the appellee. The order granting visitation was filed on August 1, 1983. On August 8, an order was entered to set up a schedule for the visitation which had been ordered earlier; this order is the one to which the notice of appeal was addressed. The notice of appeal stated that the appellant "hereby appeals to the Supreme Court of Iowa from the order entered in this matter on the 8th day of August, 1983, and from each and every order and ruling inhering therein."

The appellee grandmother argues that, since the order actually granting visitation was one other than that to which the notice of appeal was addressed, the notice of appeal was fatally defective. She does not claim she was misled or prejudiced by the notice of appeal.

We believe the August 1 order "inhered" in the order of August 8 and was included by a literal reading of the notice of appeal. Moreover, we have held that substantial compliance with the form requirements of Iowa Rule of Appellate Procedure 6 is sufficient. In re Marriage of Schissel, 292 N.W.2d 421, 423 (Iowa 1980); Blink v. McNabb, 287 N.W.2d 596, 598-99 (Iowa 1980); Hawkeye Security Insurance Co. v. Ford Motor Co., 199 N.W.2d 373, 378 (Iowa 1972). The notice substantially complied with the rule and was sufficient to confer jurisdiction in this court.

II. David challenges the authority of the district court, sitting in probate, to enter these orders in two respects. First, he claims there is no statutory or inherent authority to order visitation between the ward and the maternal grandmother. Secondly, he claims any such authority was terminated when Randal was adopted by his stepmother. Under the limited facts of this appeal, we cannot agree with these assertions.

In the written briefs and oral arguments, both parties have supplied us with material and facts that have arisen subsequent to the orders appealed from. These matters concern the hearing to remove the conservator, subsequent contempt proceedings and the agreement for visitation pending the appeal. We shall only consider those matters in the record at the time the appeal was taken, however.

A. David points out that the district court cited Iowa Code section 598.35(3) in its ruling and urges that this subsection does not authorize a petition for visitation in the probate court. This subsection allows a grandparent to petition for visitation rights with a grandchild when "[t]he parent of the child, who is the child of the grandparents, has died." § 598.35(3). We agree that this subsection is not controlling. The real issue is not a question of a grandparent's right to visitation; rather, this case concerns the authority of the district court sitting in probate to enter orders directing the guardian's actions in matters involving the best interest of the ward.

Initially, when the guardian secured his appointment and qualified, he submitted himself to the jurisdiction of the court making the appointment and agreed to be subject to the orders entered by the court. Iowa Code § 633.71 (1983). The court having jurisdiction of a guardianship is the superior guardian, and the guardian is an officer of the court. 39 Am.Jur.2d Guardian and Ward § 1 (1968). Thus, one who procures and accepts an appointment as guardian is subject to the control and supervision of the court. 39 C.J.S. Guardian and Ward § 7 (1976). Such a guardian is estopped from denying the jurisdiction of the appointing court. 39 Am.Jur.2d Guardian and Ward § 24 (1968).

Our statutory scheme and case authority grant a preference to parents who seek to act as guardian and custodian, subject, however, to the overriding concern of the best interest of the child. The guardian shall have custody of a minor ward. Iowa Code § 633.635 (1983); In re Guardianship of Carrick, 250 Iowa 1181, 1186, 98 N.W.2d 315, 318 (1959). "The parents of a minor ... if qualified and suitable, shall be preferred over all others for appointment as guardian." Iowa Code § 633.559 (1983). This rebuttable preference accorded the natural parents gives way to the welfare and best interests of the child, however; and we have refused custody to the natural parent. Patten v. Patrick, 276 N.W.2d 390, 397 (Iowa 1979) (when grandmother appointed guardian of child on mother's petition, we denied father's petition to remove guardian and place custody with him on the basis that the best interest of the child overcame the preference granted the natural parent); Carrere v. Prunty, 257 Iowa 525, 531-32, 133 N.W.2d 692, 696 (1965) (when mother originally had custody of child by divorce decree, we denied natural father custody of the child in an action against maternal grandmother who was appointed the child's guardian after the death of the mother); Finken v. Porter, 246 Iowa 1345, 1348, 72 N.W.2d 445, 446 (1955) (father, who lost custody of child to mother in divorce proceeding, unsuccessful in proceeding to remove stepfather as guardian of child and regain custody of child from maternal grandparents, following death of mother).

The power of the probate court is not limited to custody decisions. In a contested proceeding concerning guardianship of a minor, we have established the child's grandmother as guardian and custodian and granted visitation rights to a natural parent. Patten, 276 N.W.2d at 398. The one undisputed principle is that the best interest of the child is the supreme consideration. Iowa R.App.P. 14(f)(15). Recently, we addressed...