Orlando Bioni Et Ux. v. Maud S. Haselton, Guardian

• Citation: 134 A. 606,99 Vt. 453
• Parties: ORLANDO BIONI ET UX. v. MAUD S. HASELTON, GUARDIAN
• Decision Date: 06 October 1926
• Court: United States State Supreme Court of Vermont

134 A. 606

99 Vt. 453

ORLANDO BIONI ET UX. v. MAUD S. HASELTON, GUARDIAN

Supreme Court of Vermont

October 6, 1926

May Term, 1926.

APPEAL from order of probate court for the district of Rutland dismissing petition of Orlando Bioni and wife to have set aside prior order of court appointing Maud S. Haselton guardian of their minor child. Heard at the September Term 1925, Rutland County, Fish, J., presiding, and petition dismissed. The petitioners excepted. The opinion states the case.

Judgment reversed, and judgment that the appointment of Maud S. Haselton as guardian of Mary Bioni is revoked, set aside and held for naught. To be certified to the probate court.

Fenton Wing & Morse for petitioner.

Jones & Jones for petitionee.

Present: POWERS, SLACK, and BUTLER, JJ., and MOULTON and CHASE, Supr. JJ.

OPINION

MOULTON

Mary Bioni is the daughter of the petitioners Orlando Bioni and his wife Concetta Bioni, who live in Brooklyn, New York. In the summer of 1915, when Mary was about five years of age, her health was delicate, and through the instrumentality of a young woman connected with the Presbyterian Church, which her parents attended, she was sent to Mount Tabor, in this State, as a fresh air child. She was received into the household of Mrs. Haselton, her present guardian, where she remained for about three weeks, after which time she returned to her parents. In 1917, her health still being delicate, she was sent to Vermont by the church fresh air committee, and stayed with Mrs. Haselton until late in the fall, when she again returned to her parents. In the spring of 1918 Mrs. Haselton invited Mary to come to her house. She came, and except for visits to her parents each year, other than 1922 and 1924, she has since remained there. She went to school in Mount Tabor, and was graduated from the graded school in June, 1924, and in the fall of the same year entered the high school. Mary's parents did not intend that their daughter should remain permanently in Mount Tabor and her sister came to her graduation, with the intention of taking her back to Brooklyn, but Mary was not inclined to go.

Mr. and Mrs. Bioni are, as their names imply, Italians. They usually converse in Italian, since they speak and understand English imperfectly. They are people in comfortable circumstances, and have a home suitable for the comfort and bringing up of Mary. Mrs. Haselton is a woman of excellent character, with a good home, where Mary has been made very happy. She has in the main supported Mary during her stay in Mount Tabor, and has provided most of her clothing, and desires to have Mary remain with her. The petitioners have sent Mary some money and have furnished some clothing since she went to Mount Tabor, but the amount of clothing furnished by them has been inconsiderable in comparison with that furnished by Mrs. Hastelton.

Mary does not want to return to her parents. She does not speak Italian. She does not know her parents' acquaintances. She does not like their way of living. She prefers to remain with Mrs. Haselton in Mount Tabor.

On September 3, 1924, upon the application of Mrs. Haselton and Mary, without notice to Mary's parents, and without the introduction of any evidence in support of the allegations of the petition, the probate court appointed Mrs. Haselton guardian of the young girl. The petition was brought under the provisions of G. L. 3638, subd. III: "The probate court may, on the application of a minor or his relative or friend, appoint a guardian of such minor in the following cases * * * III. When the father of the minor resides out of the state and has so resided for three years and has not contributed to the minor's support during such time; provided the minor has resided in the state three years when the application is made."

After the appointment had been made, Mary's parents learned of it, and her mother and older sister came to Mount Tabor and attempted to persuade her to return to Brooklyn. Mary was obdurate, and her parents thereupon brought a petition to the probate court seeking to have the guardianship set aside. The petition was denied, and an appeal was taken to county court. That court, after hearing, made a finding of the facts, which have been above detailed, and having concluded that "on the question of the good of Mary we think on the whole her interests in life will be better served by her remaining with Mrs. Haselton," dismissed the proceeding. The petitioners bring the case here on exceptions.

The petitioners attack the appointment of Mrs. Haselton as guardian on two grounds. They say it is null and void because no notice of the application was given them and because it was made by the probate court without any evidence having been introduced in support of the petition.

It is a rule of general application that no one shall be deprived of any property or right by judicial process without notice and opportunity to be heard. In re Allen, 82 Vt. 365, 371, 73 A. 1078, 26 L.R.A. (N.S.) 232; Windsor v. McVeigh, 93 U.S. 274, 23 L.Ed. 914; Mason's Guardian v. Mason, 86 Vt. 279, 281, 84 A. 969; Perry v. Perry, 94 Vt. 487, 489, 490, 111 A. 632; Chase v. Hathaway, 14 Mass. 222. The Fourteenth Amendment of the federal Constitution provides that no state shall "deprive any person of life, liberty or property, without due process of law," and, as said in In re Gannon, 16 R.I. 537, 538, 18 A. 159, 160, 5 L.R.A. 359, 27 Am. St. Rep. 759: "Without attempting to define the exact meaning of the phrase 'due process of law' it suffices for the present inquiry to say that it means at least some legal procedure in which the person proceeded against, if he is to be concluded thereby, shall have an opportunity to defend himself."

The statute under which the application for guardianship was brought does not specifically provide for notice to the parents of the minor; but it does not follow that it is wanting in due process of law. There being no express requirement to the contrary, the statute will not be interpreted to authorize judicial proceedings without notice to the parties to be affected by them. In the absence of a plain provision to this effect, the common law requires that notice shall be given. In re Allen, 82 Vt. 365, 372, 373, 73 A. 1078, 26 L.R.A. (N.S.) 232.

A parent has the right, at common law, to the custody, control, and services of his minor child. The right to the minor's services is a species of property, and the parent may maintain an action for the wrongful interference with this right per quod servitium amisit. Fitzgerald v. Connors, 88 Vt. 365, 368, 92 A. 456; Trow v. Thomas, 70 Vt. 580, 584, 585, 41 A. 652; Judd v. Ballard, 66 Vt. 668, 673, 30 A. 96; Kenure v. Brainerd & Armstrong Co., 88 Conn. 265, 91 A. 185; Brackett v. Brackett, 77 N.H. 68, 87 A. 252; Lawyer v. Fritcher, 130 N.Y. 239, 29 N.E. 267, 14 L.R.A. 700, 27 Am. St. Rep. 521.

The right, however, to the custody of the minor child is subject to limitations. As is said in Lippincott v. Lippincott, 97 N.J.Eq. 517, 519, 128 A. 254, 255:

"Thus it has been quite generally held that even the natural right of the father to the custody of his child cannot be treated as an absolute property right, but rather as a...