Morrisette v. Superior Court In and For Kern County

• Decision Date: 17 August 1965
• Citation: 46 Cal.Rptr. 153,236 Cal.App.2d 597
• Court: California Court of Appeals Court of Appeals
• Parties: William Franklin MORRISETTE and Cordelia Marie Morrisette, Petitioners, v. The SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF KERN, Respondent, Daniel F. EOFF and Edith F. Eoff, Real Parties in Interest. Civ. 538.

Page 153

46 Cal.Rptr. 153

236 Cal.App.2d 597

William Franklin MORRISETTE and Cordelia Marie Morrisette, Petitioners, v. The SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF KERN, Respondent, Daniel F. EOFF and Edith F. Eoff, Real Parties in Interest.

Civ. 538.

District Court of Appeal, Fifth District, California.

Aug. 17, 1965.

Edwin M. Campbell, Chula Vista, for petitioners.

Thomas C. Lynch, Atty. Gen., Ernest S. Gould, Deputy Atty. Gen., for State Dept. of Social Welfare, amicus curiae.

Hourigan & Smith, and M. Dwain Smith, Delano, for real parties in interest.

No appearance for respondent.

CONLEY, Presiding Justice.

The welfare of three minors and the rights of their four grandparents to their adoption are at stake in this litigation. Dianne Lynn Eoff was born April 7, 1960; Lee Roy Eoff, Jr. on February 23, 1961; and Craig Leon Eoff on August 15, 1962. The mother and father of these children are dead, and the grandparents on both sides, William Franklin Morrisette and Cordelia Marie Morrisette of San Diego County, mother and father of Mrs. Eoff, and Daniel F. Eoff and Edith F. Eoff of Kern County, mother and father of the father of the children, desire to adopt them, and have filed petitions to that end, Mr. and Mrs. Morrisette in San Diego County, where they reside, and Mr. and Mrs. Eoff, where they have their residence. (Civ.Code, § 226.)

As pointed out in Adoption of Barnett, 54 Cal.2d 370, 376, 6 Cal.Rptr. 562, 566, 354 P.2d 18, 22:

'An adoption proceeding, like divorce, creates a status and is essentially a proceeding in rem. [Citations.]'

And in Adoption of Burton, 147 Cal.App.2d 125, 130, 305 P.2d 185, 188, it is observed:

'As the children were residents of this state, the California court had jurisdiction over them [citations], which attached at the time the petition was filed.'

There can be no question but that each of the superior courts involved would have technical jurisdiction of the respective special proceedings for the adoption of the children if both were not pending contemporaneously. But it is unthinkable in a unified jurisdiction, such as our state, that the same essential controversy for the creation of a status should be heard and determined in two different courts at the same time. One or the other must yield precedence, or the possibility would exist that the courts might arrive at exactly opposite determinations. Accordingly, rules have been set up to determine which of two courts have fundamental jurisdiction of a given subject matter should first proceed. As is said in Robinson v. Superior Court, 203 Cal.App.2d 263, 267, 21 Cal.Rptr. 475, 477:

'When superior courts have concurrent jurisdiction over the same parties and subject matter in actions instituted in each of two counties, the court in which jurisdiction of the person is first obtained is entitled to try the cause, and a writ of prohibition may properly be issued to suspend action in the second court until the final decision of the case in the first.'

In dealing with conflicting guardianship proceedings, former Chief Justice Gibson remarked in Browne v. Superior Court, 16 Cal.2d 593, 597, 107 P.2d 1, 3, 131 A.L.R. 276:

'* * * where several courts have concurrent jurisdiction over a certain type of proceeding, the first one to assume and exercise such jurisdiction in a particular case acquires an exclusive jurisdiction.'

And the present Chief Justice of the Supreme Court in the opinion in Greene v. Superior Court, 37 Cal.2d 307, 311, 231 P.2d 821, 823, enunciated this controlling principle:

'The rule making exclusive the jurisdiction first acquired is particularly apposite to prevent unseemly conflict between courts that might arise if they were free to make contradictory custody awards at the same time.'

In Taylor v. Superior Court, 47 Cal.2d 148, 149, 301 P.2d 866, 867, it is said:

'* * * where two tribunals in this state have concurrent jurisdiction to determine jurisdiction, the question of which shall have exclusive jurisdiction shall be determined by the tribunal whose jurisdiction was first invoked, and proceedings in the tribunal whose jurisdiction was subsequently sought will, if not voluntarily stayed, be halted by prohibition until final determination of the jurisdictional question by the tribunal where jurisdiction was first laid.'

(See also Loftis v. Superior Court, 205 Cal.App.2d 148, 149, 21 Cal.Rptr. 125; 1 Witkin, California Procedure, Jurisdiction, § 194, pp. 460-461.)

In the present enquiry, it is conceded that on December 1, 1964, the petitioners, William Franklin Morrisette and Cordelia Marie Morrisette, filed their petition for the adoption of all three children in the Superior Court of San Diego County. Immediately thereafter, the clerk of the court notified the State Department of Social Welfare in Sacramento of the pendency of the action, and that body proceeded to make an investigation of the situation, and, in due course, filed a favorable report and a consent for the adoption.

It is also established without question that on January 28, 1965, Mr. and Mrs. Eoff filed applications for the adoption of these three children in the Superior Court of Kern County, the suits being numbered therein 4114, 4117 and 4118, and that immediately thereafter the clerk of the court notified the State Department of Social Welfare in Sacramento of the pendency of the proceedings; the State Department of Social Welfare filed a report with the Superior Court of Kern County stating in a summary:

'The State Department of Social Welfare finds that these adoptive petitioners are suitable as adoptive parents of the three minors, and were it not for the concurrent petition filed in San Diego County, the State Department of Social Welfare would recommend that this adoption be granted. However, the State Department of Social Welfare believing the wishes of the natural mother, as indicated in a statement purportedly written by her, were that her mother insure the children's happiness, deems that these wishes should be followed.'

The attorneys for the Eoffs caused a hearing to be set in the Superior Court of Kern County at which the negative report of the State Department of Social Welfare could be considered, and at which they asked that such report, being adverse, should be set aside, and the adoption by the Eoffs be granted as to all three children.

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