Kowalke's Guardianship, In re

• Decision Date: 29 December 1950
• Docket Number: No. 35192,35192
• Citation: 46 N.W.2d 275,232 Minn. 292
• Parties: In re KOWALKE'S GUARDIANSHIP. KOWALKE et al. v. LUTHERAN WELFARE SOC. OF MINNEAPOLIS.
• Court: Minnesota Supreme Court

Page 275

46 N.W.2d 275

232 Minn. 292

In re KOWALKE'S GUARDIANSHIP KOWALKE et al. v. LUTHERAN WELFARE SOC. OF MINNEAPOLIS.

No. 35192.

Supreme Court of Minnesota.

Dec. 29, 1950.

Rehearing Denied Feb. 9, 1951.

SYLLABUS BY THE COURT.

1. Where a minor is domiciled in Minnesota, the county where the minor is domiciled is the proper county in which to commence guardianship proceedings; but where a minor is domiciled outside the state, the county where the minor actually lives is the proper county.

2. Where minors are abandoned by both parents, they retain the domicile of their father at the time of abandonment.

3. The residence requirement in M.S.A. § 525.54 is jurisdictional in requiring that the person or property of a minor be within the state before a guardian of the minor can be appointed; but the propriety of commencing guardianship proceedings in a given county of the state is a matter of venue.

4. Where venue does not affect jurisdiction of the subject matter, a defect in venue may be waived either by failing to object to the venue in the trial court or by seeking affirmative relief in the alleged improper venue.

W. L. Hursh, Minneapolis, for appellants.

C. J. Donnelly, Marshall, Edman & Edman and Guy E. McCune, all of Fairmont, for respondent.

LORING, Chief Justice.

On October 7, 1948, the probate court of Lyon county appointed the Lutheran Welfare Society of Minneapolis general guardian of two neglected children, and the same order denied a petition for guardianship presented by the children's relatives. An appeal was taken to the district court of Lyon county, and, after a trial De novo there, the order of the probate court was affirmed. Thereafter, the children's relatives moved for amended findings of fact and conclusions of law or a new trial. The district court denied these motions, and the children's relatives have appealed to this court.

In 1947, Mr. and Mrs. Herman Kowalke and their minor children, Marlene and Wayne, were living in Marshall, Lyon county, Minnesota. On September 13, 1947, the juvenile court of Lyon county, on petition of the executive secretary of the Lyon County Welfare Board, found that Marlene, aged eight, and Wayne, aged six, were being wilfully neglected by their parents; that they were left at home alone and unsupervised without sufficient food or clothing; that their home was in an uninhabitable condition; that their mother was often absent from home; and that their father was frequently drunk. On these findings, the court adjudged and ordered that the children were neglected and committed them to the supervision and temporary custody of the Lyon County Welfare Board until further order of the court. On September 26, 1947, the Lyon County Welfare Board placed the children with the Lutheran Welfare Society of Minneapolis in Hennepin county. The county board retained financial responsibility for the children. Between September 26, 1947, and June 12, 1948, the children were kept at a temporary boarding home and then at a children's receiving home at the expense of the Lyon County Welfare Board. On June 12, respondent, the Lutheran Welfare Society of Minneapolis, placed the children in the private home of Mr. and Mrs. Alfred Ask, who live on a farm in Martin county. Mr. and Mrs. Ask received the children with adoption in mind and did not ask for or receive compensation for the children.

The children's mother, Doris Kowalke, left Lyon county on May 1, 1948, and has not returned there since that date, nor has the father, Herman Kowalke, who left on July 4, 1948. September 8, 1948, three separate proceedings took place. The probate court of Lyon county appointed Margaret B. Stevens, executive secretary of the Lyon County Welfare Board, as an individual, special guardian of the neglected children. Respondent petitioned the probate court of Lyon county for general guardianship of the children. Margaret Stevens made an oral report to the juvenile court of Lyon county, stating that respondent had found a suitable home for the children, that the children were no longer neglected, that the Lyon County Welfare Board wished to be released of any and all supervision of the children, and that a special guardian had been appointed forthem. On the basis of this report, the juvenile court dismissed the original petition alleging neglect of the children.

On September 27, 1948, two aunts and the grandmother of the children petitioned the probate court of Lyon county to appoint John N. Heen, an uncle of the children, guardian for them. Mrs. Doris Kowalke, mother of the children, concurred in the petition.

Both petitions for guardianship came on for hearing in the probate court of Lyon county on September 30, 1948. The probate court appointed respondent guardian of the two children and by the same order denied the petition for the appointment of Mr. Heen. Petitioners then appealed to the district court of Lyon county, and a trial was had there De novo. In the district court, appellants moved for an order for judgment reversing the order of the probate court and directing the probate court to dismiss both petitions for guardianship. They also objected to the jurisdiction of the district court and moved for judgment on the pleadings. Appellants' objection and motions were based upon the contention that the courts of Lyon county have no jurisdiction to entertain guardianship proceedings relative to the Kowalke children. The district court denied appellants' motions, overruled their objection, and affirmed the order of the probate court. The case is here on appeal from the order of the district court denying appellant's motion for a new trial.

1. The principal issue in this case arises out of the fact that the guardianship appointment here in dispute was made by the probate court of Lyon county at a time when the children affected by the guardianship proceeding were living in Martin county. On these facts, appellants contend that the probate court of Lyon county was not the proper court to appoint a guardian over the Kowalke children. In support of this contention they cite M.S.A. § 525.54, which reads in part as follows: 'The court may appoint (here the probate court) one or two persons suitable and competent to discharge the trust as guardians of the person or estate or of both of any person who is a minor, * * * Provided such person is a resident of the county or being a non-resident of this state has property in the county.' (Italics supplied.)

Appellants interpret the word 'resident' in the above statute as requiring that a minor be physically present in a county before a guardian can be appointed over him, and hence claim that the decree of the Lyon county court granting guardianship over the Kowalke children was improper by reason of the fact that the children were then living in Martin county. Appellants contend that, since the Kowalke children were living in Martin county at the time the Lyon county probate court appointed respondent their guardian, the requirement that the children be residents of Lyon county was not met. Whether appellants are correct in this contention depends in large part upon the meaning to be given the word 'resident' in § 525.54. Unlike the word 'domicile,' the word 'resident' has not gained a generally accepted meaning. It appears to us that the best rule for determining what the word 'resident' means in a given statutory enactment is found in the case of Bechtel v. Bechtel, 101 Minn. 511, 514, 112 N.W. 883, 884, 12 L.R.A.,N.S., 1100. The court there stated: '* * * As employed in statutory enactments, its meaning, as interpreted by the courts (the meaning of the word 'resident'), varies as the legislative intent appears, and in harmony with the subjectmatter, object, and purpose of the statute.'

This rule has been followed in Minnesota ¹ and prevails in many other jurisdictions. ² The difficulty in most cases, as here, is in determining whether the word 'residence' is to be regarded as synonymous with the word 'domicile.' As this court stated in State ex rel. Selover v. Probate Court, 130 Minn. 269, 271, 153 N.W. 520, 521: '* * * An accurate legal distinction between 'residence' and 'domicile' is not always observed by Legislatures. It may not be of importance in all statutes.'

In § 525.54, the distinction is important, and this court has already held that the word 'resident,' as used therein, is not entirely synonymous with the word 'domicile.' In Re Guardianship of Campbell, 216 Minn. 113, 11 N.W.2d 786, this court was called upon to construe the word 'resident' in § 525.54. In that case, the probate court of Hennepin county appointed a guardian over a minor who was living in Hennepin county but whose domicile was in the state of Washington. The order appointing the guardian was attacked on the ground that only the courts in the state of the child's domicile could appoint a guardian over her, and hence that the word 'resident' in § 525.54 should be construed as being synonymous with the word 'domicile.' In discussing this contention, the court held that Residence differs from Domicile in that residence simply requires bodily presence as an inhabitant in a given place, while domicile requires bodily presence in that place and also an intention to make it one's domicile. The court then went on to hold that the statutory requirement that a minor be a resident of the county where the guardian is appointed does not require that the minor be domiciled in the county, but that actual physical presence in the county is sufficient to meet the requirement of residence. The question left open was whether a constructive domicile in the county, without actual physical presence there, is also sufficient to meet the requirement of being a 'resident.' In answering this question, it must be remembered that the word 'residence' may be a broader term or a narrower term than the word 'domicile.' ³ As this court pointed out in the Campbell case, supra, the...