Guardianship of Donaldson

• Decision Date: 05 March 1986
• Docket Number: No. F004333,F004333
• Citation: 178 Cal.App.3d 477,223 Cal.Rptr. 707
• Court: California Court of Appeals Court of Appeals
• Parties: In re GUARDIANSHIP OF David Patrick DONALDSON et al. Louise LADD, Petitioner and Respondent, v. Patricia Ann DONALDSON, Objector and Appellant.

Page 707

223 Cal.Rptr. 707

178 Cal.App.3d 477

In re GUARDIANSHIP OF David Patrick DONALDSON et al.

Louise LADD, Petitioner and Respondent, v. Patricia Ann DONALDSON, Objector and Appellant.

No. F004333.

Court of Appeal, Fifth District, California.

March 5, 1986.

Louis P. Etcheverry, Bakersfield, Allen, Cornell & Mason and Tracey Felton Resnick, Merced, for objector and appellant

No appearance for petitioner and respondent.

OPINION

FITCH, Associate Justice. ^*

I Introduction

David, age seven, and his five-year-old sister, Tammy, were the subjects of a custody contest between their paternal aunt in California and their maternal grandparents in Illinois.

The children's father obtained sole custody in dissolution proceedings. About two and one-half years later he died and the children were placed informally with the aunt. Unbeknownst to the aunt, the mother made arrangements through an attorney to have the children live with the maternal grandparents in Illinois. The grandparents, under the pretext of visitation, took the children to Illinois.

The aunt and grandparents filed petitions for guardianship almost simultaneously in their respective states. Each state rendered orders granting letters of guardianship: California to the aunt, and Illinois to the grandparents. The aunt did not obtain letters of guardianship. The mother appeals the California order granting letters of guardianship to the aunt.

The issues and our holdings are:

1. Is the order granting letters of guardianship appealable, as opposed to the letters? We hold it is the order.

2. Upon death of a parent who obtained sole custody of the children in a dissolution action, does the surviving parent obtain all rights to custody? We hold "yes."

3. Do the custody rights of the sole parent embrace the rights to transfer temporary physical custody of the children to another in another state? We hold that they do, assuming there are no existing orders which would limit the exercise of such rights?

4. Is the Uniform Child Custody Jurisdiction Act (hereinafter referred to as the UCCJA or the Act) applicable to guardianship proceedings of the person of minors? We hold that it is.

5. Does the application of the UCCJA compel reversal of the order below granting letters of guardianship to the aunt by reason of: (1) the failure of the California court to communicate and consult with the Illinois court to the end that the more appropriate forum for the custody litigation shall be chosen; and (2) the failure of the California court to heed the mother's nomination of the grandparents and use procedures authorized by the Act to obtain relevant, available information concerning the grandparents? We hold that such failures constituted error. The order is reversed.

II Facts

David and his sister Tammy lived with their father in Merced, California, when he obtained their sole custody in May 1981 in a marital dissolution proceeding. After the father obtained custody, the mother, in her own words, was "just going from town to town," finding shelter and food at the Salvation Army and other missions. She admitted she saw the children only a "few times."

The father died on November 18, 1983. The Merced County Child Protective Services informally placed the children with the aunt. The mother learned of the father's death on Thanksgiving. She immediately arranged with her parents in Illinois to raise the children. On December 9 the mother contacted an attorney in Merced and asked that appropriate legal steps be taken to enable the children to live with the maternal grandparents.

On Friday, January 20, 1984, several significant events occurred. The mother visited her attorney in Merced and again requested the transfer of custody of her children to the maternal grandparents. The grandparents arrived from Illinois and obtained the aunt's permission to take the children to lunch at McDonald's. Several hours later the grandparents phoned the aunt and informed her they were taking the children with them on the next flight to Illinois. At 4:06 p.m., the aunt filed a petition for guardianship of the persons and estates of both children in the Merced County Superior Court.

On the date originally set for the hearing on the aunt's petition for guardianship, February 17, 1984, the mother's attorney appeared on behalf of the grandparents, requesting leave to file a motion to dismiss the action for lack of subject matter jurisdiction.

The court granted a continuance for this purpose, and the grandmother filed a motion to dismiss on February 23, 1984. Attached to the motion was an affidavit of the grandmother stating that the mother, as the sole surviving parent, desired the grandparents to have custody of the children and the children were residing with the grandparents in Danville, Illinois.

At the hearing on the motion to dismiss for lack of subject matter jurisdiction on March 19, 1984, the mother's attorney informed the court that the mother had executed an "Entry of Appearance, Waiver of [Service of] Summons, and Waiver of Notice" in a proceeding commenced in Illinois by the grandparents to obtain guardianship of the children. The court and opposing counsel were furnished copies of this waiver. No testimony was taken. After argument the court ruled it had jurisdiction over the subject matter under the UCCJA, and stated that the matter would be set for a contested hearing on the issue of "whether as opposed to the rights of a natural mother the Petitioner [aunt] should be appointed guardian." Neither the court nor counsel discussed the necessity, much less the desirability, of communication with the court in Illinois.

On April 9, 1984, a contested hearing was held in the Merced County Superior Court. The mother and aunt were present; the grandparents were not present. The aunt presented substantial evidence that she could provide a wholesome and stable environment for the children and that maternal custody would be detrimental to the children. The mother admitted to a nomadic existence. She testified that she wanted the grandparents to have custody because they were able to provide the children with the care and attention she could not provide.

In the midst of the proceeding, the mother's attorney requested a brief recess, and after returning advised the court that she had just been informed by her office that the Illinois court, on April 6, 1984, appointed the maternal grandparents as coguardians of the persons and estates of the children. ¹ The attorney for the aunt stated that "[T]o the extent that Illinois is a signatore to the Uniform Act on Custody of Children, I suspect the order may be voidable." The court responded, "That would be my thought. So let's go ahead." The mother's attorney then reminded the court that at the hearing to dismiss she had informed the court that the mother had given her consent to the Illinois guardianship proceedings. The court then stated, "I would think that California would probably have the superior right based on the Uniform Child Custody Act."

The court found that it would be detrimental to return the children to the mother, and that it would be in the best interests of the children that the aunt be appointed guardian of the children. The order appointing the aunt as the guardian of the persons and estates of the two children was signed June 19, 1984. Letters of guardianship were never sought or obtained by the aunt. The mother filed a timely notice of appeal from the order.

III Appealability of the Order

Although no case has directly interpreted the appealability of the order granting letters of guardianship, we conclude that the order itself, and not the letters, is appealable.

Probate Code section 2750 states: "An appeal may be taken from the making of, ... a[n] ... order ...: (a) Granting or revoking letters of guardianship...." Where, as here, bond was waived, the issuance of letters of guardianship serves merely to solemnize the rights and duties created by the court's order. (See Southern T. & C. Bk. v. S.D. Sav. Bk. (1919) 45 Cal.App. 294, 297, 187 P. 435.) The order established the right to custody of the children, and it is this right assailed on appeal. (See Guardianship of Brazeal (1953) 117 Cal.App.2d 59, 60, 254 P.2d 886.) We conclude the orders granting the aunt letters of guardianship disposed of the rights of the parties, and hence are appealable.

IV Custody Rights of A Sole Parent

Prior to the father's death he was awarded temporary physical custody of the two children pursuant to a marital dissolution order. ² Upon his death, the custody order terminated. "Divorce is a personal action that does not survive the death of a party." (In re Marriage of Williams (1980) 101 Cal.App.3d 507, 510, 161 Cal.Rptr. 808.) As stated in In re Marriage of Shayman (1973) 35 Cal.App.3d 648, 651, 111 Cal.Rptr. 11:

"[T]he death of a party to a dissolution proceeding abates the cause of action, as the status of the parties is no longer before the court, and ... the court thus loses jurisdiction to make any further determination of ... rights...." (Emphasis in original.)

Upon the death of the father, the mother immediately became entitled to sole custody of her children. Civil Code section 197 provides, "If either the father or the mother be dead ... the other is entitled to [a child's] custody...." "[U]pon the death of the parent to whom is awarded the custody of a minor child by the decree of divorcing the parents, the other parent becomes entitled to the custody." (In re Arkle (1928) 93 Cal.App. 404, 410, 269 P. 689.

"Custody embraces the sum of parental rights with respect to the rearing of a child, including its care." (Burge v. City & County of San Francisco (1953) 41 Cal.2d 608, 617, 262 P.2d 6.) A parent's right to sole legal and physical custody includes the right and responsibility to make decisions relating to the health, education, and welfare of the child. (See Civ.Code, § 4600.5, subd. (d).) We find...