Guardianship of Pankey

Decision Date02 May 1974
Citation113 Cal.Rptr. 858,38 Cal.App.3d 919
PartiesIn re GUARDIANSHIP OF Otto Lester PANKEY et al. Thelma WALSTON et al., Petitioners and Respondents, v. Ruth PANKEY, Objector and Appellant. Civ. 31697.
CourtCalifornia Court of Appeals Court of Appeals

Barry Wood, Ukiah, for respondents.

Thomas S. Brigham, Legal Services Foundation of Mendocino and Lake Counties, Ukiah, for appellant.

SIMS, Associate Justice.

Appellant, the paternal grandmother of the four minor children who are the subject of consolidated guardianship proceedings, has appealed from orders which overruled her objections and appointed a separate guardian for each of the minors. She has also appealed from a post-judgment order which denied her motion for an order waiving costs of a clerk's transcript on appeal and compelling the county to pay the cost of a reporter's transcript. At the threshold of her appeal on the merits she is faced with the respondents' motion to dismiss her appeal on the grounds that she was not a party to the action and that the appeal is frivolous and without merit.

On a review of the record it is determined that the grandmother has status to maintain the appeal on the merits and the motion to dismiss is denied. It is also concluded that the orders appointing the guardian should be affirmed, and that the appeal from the order denying appellant a free record should be dismissed.

I

On November 9, 1971, respondent Thelma Walston, the maternal aunt of Otto Lester Pankey, a minor, filed a petition in the trial court seeking the appointment of herself as guardian of the person of the minor. Her declaration in support of a temporary custody and restraining order, which was issued the same day, recites that Otto Lester Pankey and his brothers and sister, Phillip Dale, Burnie Lee, and Judy Louise Pankey, whose ages run from one to five, are in the custody of named foster parents within the county; that they were placed there by their father, who in the past has not properly cared for his children; that petitions have been filed for appointment of guardians of the persons for the other three minors 1; that the father is currently residing in an automobile, has been reported as out of the state, and unless restrained might attempt to flee the jurisdiction with the children, to their detriment and injury.

The petition with respect to Otto Lester Pankey alleges that the mother of the minor is deceased, and that the father resides at a designated address within the state. Listed as relatives of the minor residing in the state are the maternal grandparents, the paternal grandparents, and two other maternal aunts. Hearing on the petition was set for November 19, 1971, and the court ordered that notice by mail be given to the father and other relatives, including the objector and appellant. (See Prob. Code, § 1441.) 2

On November 19, 1971, the paternal grandmother secured an order permitting her, as 'objector,' 'to prosecute the within action without the prepayment of filing fees, court costs and other required costs and fees . . ..' She thereupon filed 'Objection to Petitions for Appointment of Guardian,' entitled jointly in all four proceedings, and a memorandum of points and authorities in support of her objections. A hearing was held that day. At the conclusion of the hearing the court overruled the objections and appointed the petitioners as guardians by minute order and formal order entered that date, and letters of guardianship were issued to the petitioners. The objector served and filed requests for findings of fact and conclusions of law on November 23 and 29, 1971. (See Guardianship of Daniels (1960) 177 Cal.App.2d 376, 377, 2 Cal.Rptr. 243.) Proposed findings of fact and conclusions of law were served and filed December 14, 1971, but not signed until January 4, 1972, and a judgment after trial by court, prepared by objector's attorney and served February 22, 1972, was signed and filed March 6, 1972. It was only after notice of entry of this judgment that the objector sought and secured the order consolidating the proceedings. On April 3, 1972 the objector filed her notice of appeal.

Section 1630 of the Probate Code provides in pertinent part, 'An appeal may be taken from an order granting . . . letters of guardianship . . ..' (See Guardianship of Leach (1946) 29 Cal.2d 535, 539, 176 P.2d 369; Guardianship of Lyle (1946) 77 Cal.App.2d 159, 160, 174 P.2d 910; and Guardianship of Brazeal (1953) 117 Cal.App.2d 59, 60, 254 P.2d 886.) Section 1606 states in part, 'When not otherwise specially prescribed in this division, practice and procedure . . . under this division shall be governed by the provisions of Division 3 of this code (§§ 300--1242, Administration of Estates of Decedents), so far as they are applicable.' Section 1233 in turn provides, 'Except as otherwise provided by this code or by rules adopted by the Judicial Council, the provisions of Part 2 (commencing with Section 307) . . . are applicable to and constitute the rules of practice in the proceedings mentioned in this code with regard to . . . appeals . . ..' (See Guardianship of Lyle (1946) 77 Cal.App.2d 153, 156, 174 P.2d 906.) This leads to Code of Civil Procedure section 902 (based on former § 938) which reads, 'Any party aggrieved may appeal in the cases prescribed in this title. A party appealing is known as an appellant, and an adverse party as a respondent.' (See Guardianship of Copsey (1936) 7 Cal.2d 199, 202, 60 P.2d 121; Estate of Colton (1912) 164 Cal. 1, 4--5, 127 P. 643; Adams v. Woods (1857) 8 Cal. 306, 314--315; Slaughter v. Edwards (1970) 11 Cal.App.3d 285, 290--292, 90 Cal.Rptr. 144; Butterfield v. Tietz, 247 Cal.App.2d 483, 484--485, 55 Cal.Rptr. 577; Estate of Armstrong (1966) 241 Cal.App.2d 1, 5--7, 50 Cal.Rptr. 339; Estate of Sloan (1963) 222 Cal.App.2d 283, 291--292, 35 Cal.Rptr. 167; Estate of Lagersen (1962) 210 Cal.App.2d 788, 791--792, 26 Cal.Rptr. 783; Estate of Thomas (1946) 74 Cal.App.2d 389, 390, 168 P.2d 773; Pacific States Sav. & L. Co. v. Mortimer (1945) 70 Cal.App.2d 811, 814, 161 P.2d 684; and Greif v. Dullea (1944) 66 Cal.App.2d 986, 992--993, 153 P.2d 581.)

Respondents point out that one who is not a party to the record cannot appeal. (See Eggert v. Pac. States S. & L. Co. (1942) 20 Cal.2d 199, 200--201, 124 P.2d 815; Estate of Armstrong, supra, 241 Cal.App.2d 1, 5--7, 50 CalRptr. 339; and Estate of Thomas, supra, 74 Cal.App.2d 389, 390, 168 P.2d 773. Cf. Guardianship of Copsey, supra, 7 Cal.2d 199, 203, 60 P.2d 121; Butterfield v. Tietz, supra, 247 Cal.App.2d 483, 485, 55 Cal.Rptr. 577; and Estate of Sloan, supra, 222 Cal.App.2d 283, 292, 35 Cal.Rptr. 167.) Nonappearing heirs, legatees and creditors are not parties to a probate proceeding. (Estate of Kent (1936) 6 Cal.2d 154, 150--162, 57 P.2d 901; and Estate of Thomas, supra, 74 Cal.App.2d 389, 390, 168 P.2d 773.) Consequently the mere fact that the objector was named as a relative in the guardianship petitions did not make her a party to the proceedings. Nevertheless in Estate of Sloan, supra, the court noted, 'An analysis of the cases cited by the respondents (including Eggert v. Pacific States S. & L. Co., supra) indicates that the 'parties of record' requirement was usually applied to exclude parties who were not properly 'aggrieved' and whose interest with the particular litigation was not clearly established or far more remote than the easily ascertainable interest of a remainderman. It would be anomalous to hold that a party bound by res adjudicata as the respondents argue is not entitled to appeal from a decree so binding him.' (222 Cal.App.2d at p. 292, 35 Cal.Rptr. at p. 173. See also Butterfield v. Tietz, supra, 247 Cal.App.2d at p. 485, 55 Cal.Rptr. 577; and Estate of Armstrong, supra, 241 Cal.App.2d at p. 6, 50 Cal.Rptr. 339.) It is unnecessary to determine whether the appellant-objector fits within the above test. In this case she was not only named in the petitions but she also appeared as a party and filed objections, and her objections were overruled. It would appear that the objector is both a party of record and a person aggrieved.

In Estate of Colton, supra, the court observed, 'The test laid down in Adams v. Woods, 8 Cal. 306, 'Would the party have had the thing if the erroneous judgment had not been given? If the answer be 'yea,' then the person is the party aggrieved,' however satisfactory to the case then under consideration, by no means affords a complete definition of the phrase 'party aggrieved,' nor has it ever in this state been held to afford such a complete definition. Under our decisions, any person having an interest recognized by law in the subjectmatter of the judgment, which interest is injuriously affected by the judgment, is a party aggrieved and entitled to be heard upon appeal.' (164 Cal. at pp. 4--5, 127 P. at p. 645.)

Respondents point out that the paternal grandmother did not seek custody for herself in her objections. It appears that both below and by her appeal she merely seeks to protect the custodial rights of her son, the father of the minor children. She testified that she had cared for the children after the death of their mother April 18, 1971, and until August when the father secured a housekeeper, whom he married; that when the father became dissatisfied with the treatment the children were receiving he asked the grandmother to take them back but she was unable to do so because of a broken arm; and that the children were placed with a neighbor across the street where they remained until the latter part of October when, with the father's consent, they were placed in the foster homes where they were living at the time the petitions were filed and heard. She never offered to take them herself, nor did she seek letters of guardianship. From the foregoing respondents conclude that under Adams v. Woods, supra, as quoted in Estate of Colton, supra, the objector...

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