Revello, Matter of, s. 12853

Citation606 P.2d 933,100 Idaho 829
Decision Date07 December 1979
Docket NumberNos. 12853,13099,s. 12853
PartiesIn the Matter of Shauna Sue REVELLO and Benjamin Jay Revello, Minor children. Patsy A. REVELLO, Petitioner-Appellant, v. John J. and Lucia REVELLO, Respondents.
CourtUnited States State Supreme Court of Idaho

John F. Greenfield, Boise, for petitioner-appellant.

John D. Hansen of Hansen & Boyle, Idaho Falls, for respondents.

BAKES, Justice.

I

Petitioner appellant Patsy A. Revello appeals from an order of the district court which denied her petition for habeas corpus filed to obtain custody of her two minor children from respondents John and Lucia Revello, the children's paternal grandparents. We affirm.

Patsy Revello married Gary Revello, the son of respondents John and Lucia Revello, in 1969. A daughter, Shauna, was born in 1970 and a son, Benjamin, in 1972. Marital problems developed which led to a trial separation by Patsy and Gary in March, 1974. Custody of the two children was at this time given to Gary's parents, John and Lucia Revello, respondents herein, by mutual consent of both the children's parents and grandparents. In May, 1974, after some discussion and consideration by both the parents and grandparents, Gary and Patsy Revello each executed a "Consent to Appointment of Co-guardian and Waiver of Notice" in which they consented to appointment of respondents John and Lucia Revello as co-guardians of the persons of Shauna and Benjamin. They also waived any rights which they as natural parents may have had to notice of hearings in any subsequent proceedings with respect to the guardianship appointment. A hearing in the matter was held in the magistrate division of the district court of the Seventh Judicial District, in and for the county of Bonneville, on July 14, 1974. On this date an order of co-guardianship was entered by the magistrate which stated that the best interests of the two minor children would be served by the appointment of the grandparents as co-guardians of the children. Letters of guardianship were issued by the court to the respondents, John and Lucia Revello.

In the fall of 1974 Gary and Patsy made an attempt at reconciliation and the two children were returned to them by the grandparents. The reconciliation attempt failed however. The children were returned to their grandparents' home in November of 1974 and Gary and Patsy separated.

Gary obtained a default divorce from Patsy in December, 1974. The court in the divorce proceeding granted Gary and Patsy joint custody of Shauna and Benjamin. However, the grandparents were not made parties to that proceeding, and the record does not indicate that the divorce court was aware of the guardianship. The couple spent Christmas, 1974, at Gary's parents' home in Idaho Falls with the two children. Patsy then moved to Boise and obtained employment, and Gary returned to Pocatello to complete a pharmacy program at Idaho State University. Shauna and Benjamin remained with their grandparents in Idaho Falls.

Patsy made visits and phone calls to the children in Idaho Falls in 1975 and 1976 and took temporary custody of the children during holidays and vacations in those years. The bulk of the children's time, however, was spent at their grandparents' home in Idaho Falls during those two years. In 1977 both Gary and Patsy began attempts to obtain custody of the children from John and Lucia Revello. At that time, the grandparents were reluctant to allow the children to leave their home, feeling that neither of the two parents was capable of properly caring for the children and that the children had become established in the grandparents' home in Idaho Falls, making a change in custody detrimental to the children's emotional wellbeing.

On November 23, 1977, Patsy filed a "Petition for Writ of Habeas Corpus" in the Bonneville County district court in an attempt to obtain custody of her children. 1 A two day trial was held in the matter on November 30, and December 1, 1977. Patsy, the grandparents, and several of Patsy's friends testified as to Patsy's fitness to serve as a parent for the children, and psychiatric and psychological evidence was admitted. The trial court ruled that Patsy had not abandoned her children, as was maintained by the grandparents, but stayed the writ of habeas corpus pending home studies of both Patsy's and the grandparents' homes during visits by the children to each. In January, 1978, after receiving reports on the home studies, the trial court awarded the grandparents "temporary custody" of the children until the end of 1977-78 school year. The district court granted Patsy custody during the children's 1978 summer school vacation. A final decision on the custody question was reserved until August, 1978, at which time the court indicated that it would review the case and decide then which party should have custody of the two children.

In August, 1978, following the children's summer stay with their mother in Boise, the trial court, by agreement of the parties, conducted an interview with the children. In accordance with the parties' agreement, the parties, their counsel, and the court reporter were not present at the interview. On August 22, 1978, the trial court issued a memorandum decision finding that Patsy was not emotionally fit to raise her children and that the best interests of the children would be served by permanently quashing the writ of habeas corpus. The court in this order referred to the interview it conducted with the children, stating that in it Shauna had indicated a strong desire to live with her grandparents, and not her mother.

Findings of fact, conclusions of law, and judgment were entered in October, 1978, which reiterated the court's belief that the best interests of the children would be served by permanently quashing the writ of habeas corpus and leaving custody of Shauna and Benjamin with respondents. The trial court stated in its findings of fact that the children had experienced emotional and behavorial problems at the time of the parents' divorce and that while in the custody of respondents those problems had largely been resolved. The court found that petitioner Patsy Revello "has a history of emotional immaturity and instability, and inability to properly maintain, care and provide for the proper training, education and emotional needs of said children, and has not shown herself to be emotionally fit to have custody of the said minor children." The court found the respondent grandparents to be fit and capable to have custody of the children and determined that the best interests and welfare of the children would be served by leaving custody of the children with their grandparents.

Petitioner Patsy Revello maintains on this appeal that the trial court made several errors in quashing the writ of habeas corpus. She claims that I.C. § 32-1007 2 establishes a statutory presumption that the natural parents of minor children are entitled to the care, custody and control of their children absent an affirmative showing that the parents had either abandoned their children or were unable to care for the children. Petitioner asserts that the trial court denied her the presumption that natural parents should raise their own children by applying the "best interests of the child" standard to this case. Petitioner also claims that there is no substantial or competent evidence in the record to support the trial court's finding that she is unfit to care for her children. She claims that the trial court erred in placing the burden of proof on her to show that she is emotionally fit so as to have custody; that it was error to base a decision to give the grandparents custody in part upon the fact that the children have spent a large part of the time since the parents' 1974 divorce in the grandparents' custody; that the fact that the children suffered emotional problems during the breakup of their parents' marriage which have since been alleviated is irrelevant to a present decision regarding custody; and that the trial court acted improperly in basing its final decision in part upon statements by the two minor children made in an interview between the children and the trial court outside the presence of the parties, their attorneys, and a court reporter, even though she had stipulated to that procedure through her counsel.

II

We affirm the order of the trial court quashing the writ of habeas corpus, although not for the reasons stated by the trial court in arriving at its decision. This Court has consistently held that "(w)here the order of the lower court is correct but entered on a different theory, it will be affirmed on the correct theory." Robison v. Compton, 97 Idaho 615, 617, 549 P.2d 274, 276 (1976); Anderson & Nafziger v. G. T. Newcomb, Inc., 100 Idaho 175, 595 P.2d 709 (1979); City of Weippe v. Yarno, 96 Idaho 319, 528 P.2d 201 (1974); Rinehart v. Farm Bureau Mutual Insurance Co. of Idaho, 96 Idaho 115, 524 P.2d 1343 (1974); Church v. Roemer, 94 Idaho 782, 498 P.2d 1255 (1972). The writ of habeas corpus was properly quashed by the district court for the reasons set out below.

The Idaho version of the Uniform Probate Code governs the appointment, authority, responsibility and removal of guardians of minors. I.C. §§ 15-5-201 to -212. Under I.C. § 15-5-209, a court appointed guardian of a minor has the "powers and responsibilities of a parent who has not been deprived of custody of his minor and unemancipated child . . . ." Unless it is otherwise indicated in the order of guardianship, a court appointed guardian of a minor child is entitled to the custody of the ward. Custody is but an incident of guardianship. I.C. § 15-5-209; Miller v. Miller, 158 Conn. 217, 258 A.2d 89 (1969), Cert. denied, 396 U.S. 940, 90 S.Ct. 374, 24 L.Ed.2d 241 (1969); In re Bunting, 311 A.2d 855 (Del.1973); Johnson v. Johnson, 87 Nev. 244, 484 P.2d 1072 (1971). Respondents John and Lucia Revello attached the magistrate's order of ...

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