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District Court of Appeal, First District, Division 2, California.

Guardianship of KENTERA. KENTERA v. BOESEL.*

Civ. 15215.

Decided: March 24, 1953

Marshall E. Leahy and John F. O'Dea, San Francisco, for appellant. W. L. A. Calder, San Francisco, Lorne M. Stanley, San Francisco, for respondent.

This appeal was taken from an order denying the petition of Richard Steven Kentera for the appointment of his grandmother as guardian of his person.

Richard's parents were divorced in 1940 and both remarried. In the divorce action his custody was vested jointly in both parents with physical custody in his mother. Following the divorce Richard lived with his mother and, after her remarriage, with her and his stepfather.

On July 13, 1951 appellant, then aged 14, filed a petition wherein he nominated his paternal grandmother Angelina Kentera, a resident of San Francisco, to be guardian of his person. At that time he was temporarily in San Francisco visiting his grandmother during his school vacation. His mother filed an opposition wherein, after setting forth the facts entitling her to Richard's custody, she denied that he was in need of a guardian, and denied that the grandmother was a fit and proper person to act as such. In connection with this last denial she averred that the grandmother was about 60; that she lived with her husband who is not related to Richard; that no young people reside in their home; that she and her husband operate a restaurant in San Francisco which consumes most of their time and attention; that for these reasons she would be unable to give Richard proper care and supervision, and that she and her husband do not use the English language in their home but converse in a foreign tongue.

She further averred that she resides with her present husband in Ukiah, and that in the family there are three other boys, aged 17, 9, and 7; that the four boys normally play and associate together, and that it would be to the best interest of the minor to remain with his mother.

After hearing, the court entered an order denying Richard's petition and ordering him returned to his mother in Ukiah. It found that since the divorce Richard has been in the general physical custody of his mother; that the appointment of a guardian was not necessary or convenient; that he had lived practically all his life with his mother; that she is a fit and proper person to have his care, custody and control, and that his mother's home in Ukiah is a suitable home for him.

At the hearing counsel for the boy contended from the outset that the only issue before the court was as to the suitablility and fitness of the grandmother to act as guardian, which contention they consistently pressed throughout. Counsel for the mother contended with equal force and emphasis that the court could not appoint a guardian, however suitable, unless such appointment was necessary or convenient. From the outset the judge expressed his agreement with the latter view. At one point during the hearing he said: ‘If he has a fully qualified father and mother, or either one of them, who are taking care of him, it doesn't become necessary that a guardian be appointed * * *.’ Elsewhere he said: ‘I am trying to find out if there is any necessity or any reason, or something in the background, that prompts and makes imperative a change in the domicile of this minor to be warranted, whether that is necessary.’

The Boesel household in Ukiah consists of Richard's mother and stepfather and four boys. The oldest is the stepfather's son by a former marriage; next comes Richard; the two younger boys are the children of the present marriage.

It is clear that the reason why Richard nominated his grandmother was his dislike for his stepfather. It is likewise clear that this is of long standing. It is based, according to his testimony, on discriminatory treatment by the stepfather favoring his own three sons, as against Richard.

With respect to the long duration of the dislike a witness testified to an incident 3 years before the hearing when the boy, then only 11, and on a vacation trip to Santa Cruz with his grandmother, said that he was not happy at home. Richard himself testified: ‘I never did like my stepfather.’ Further:

‘The Court: Q. You didn't have any idea of staying permanently with your grandmother when you came down here this year, did you; that is you didn't have any idea of filing a petition for guardianship, did you? A. Yes, sir, I did.

‘Q. Who did you discuss it with before you came down here? * * * A. I didn't discuss it with anybody.

‘Q. Then you didn't have any idea? A. Yes, my mother, two years straight I asked her if I could stay.

‘Q. Stay permanently? A. For school.

‘Q. And she said no, you would have to go back up there and go to school, is that right? A. That is right.

‘Q. But this proceeding here wherein you ask that your grandmother be appointed guardian, when did you first give that thought and consideration? A. I have had it for a long time, ever since I can remember—in Eureka—I mean, I have never liked my stepfather.’

(The Boesels had lived in Eureka, before they moved to Ukiah).

With respect to the underlying reason for the nomination, Richard testified:

‘The Court: Why is it you prefer to live with your grandmother in preference to your mother? A. Your Honor, it is not my mother, it is my stepfather.

Q. Well now, what is the difficulty there? A. Well, I never did like my stepfather * * * he usually takes the side of my other brothers * * * he never listens to my side of the story.

‘Q. Story about what, for instance? A. If something happens between us brothers, like fighting or something.

‘Q. Oh, you get in a fight with them once in a while? A. Sometimes.

‘Q. And he doesn't listen to what your side of the story is, is that it? A. Yes.

‘Q. What does he do, does he chastise you, shake you around a little, or what? A. Yes, your Honor.

‘Q. When did that last occur prior to your coming down here for your vacation? A. Oh, about a week before I came down.

‘Q. When you came down here you discussed it with your grandmother, did you? A. Yes, sir, I always have * * *.’

‘The Court: How often do you have occasion to want to tell him something about your side of the story? A. Whenever it happens.

‘Q. How often does it happen, these disputes? A. Three or four or five times a week * * *.’

With respect to the possibility of attempted alienation: Richard frankly admitted that he discussed the nomination with his grandmother. He was asked: ‘And she suggested that that would be the thing to do, did she?’ and answered: ‘No. It is not her idea for me to stay. She said my place is with my mother but she would make a home with me if I wanted to stay.’ Further:

‘Q. You were on perfectly friendly relations with your stepfather and mother when you came down here on vacation? A. Not my stepfather.

‘Q. You weren't peeved at him every day year in and year out, were you? A. Mostly. I have never liked him.

‘Q. You liked your mother, though? A. Yes.

‘Q. Did your mother ever intercede in behalf of your stepfather and talk to you and tell you that you should try to get along with him, or anything of that sort? A. Not that I remember of.’

Richard was questioned about the incident of a camping trip or outing to Lake Pillsbury and was asked if he was not willing and anxious to go, along with the other boys, and answered ‘I didn't really want to go, but I wanted to go with my mother to make her happy.’ Elsewhere, when asked ‘And you think a whole lot of your mother, don't you’ he answered ‘Yes, sir.’ He testified further:

‘Q. Did your * * * stepfather * * * ever * * * treat you rough, slap you around? A. Well, when he would hear the other side he did. I mean, if we had a fight or something, he would hear the other side first, and then he wouldn't let me talk, and several times he shook his fist at me * * *.

‘Q. Did he ever hit you? A. No.

‘Q. What have you got personally against the home of your mother? A. My stepfather.

‘Q. And you think that your stepfather has treated you so cruelly that you want to be away from him, is that it? A. Yes. I mean * * * he never hears what I have got to say.’

Richard had testified respecting his activities and amusements while on the annual vacation visits to his grandmother's home in San Francisco, and had given an answer which might have been taken to indicate that his reason for wanting to live in San Francisco was that there was more fun to be had there than in Ukiah. Toward the close of the hearing he resumed the stand to correct such an impression, and testified: ‘Well, your Honor, you asked me if * * * I hated to leave the city because of the fun I have. I said yes, but I meant that I didn't want to leave because I didn't want to go back to my stepfather. That is what I meant; not because I was leaving all the fun.

The Court: ‘Q. How does it come that you never told your mother up there that you were unhappy and didn't like the treatment your stepfather gave you and all that, during all these years that you have been there? * * * A. I didn't want to bring it up, she might have gotten mad at me or something for me to say anything like that; she would probably tell Hank and he would just get mad at me.

‘Q. You have heard all these witnesses here that seem to think the home life there has been happy, everyone got along all right, and you appeared to be normally enjoying your home, the same as the rest of the boys in the neighborhood and all; that is right, is it? A. Well, I don't like my stepfather.’

Richard testified that his own father lived in Palo Alto and that on these vacation trips to San Francisco he would visit him about twice a week.

At the conclusion of the hearing and before the case was briefed the judge made the following statement: ‘* * * That insofar as the home of Dick and his mother and stepfather is concerned, I think it is a fit and proper home * * * in every respect. As far as the home of the grandmother is concerned, I am satisfied that that is a proper home * * *. However, it is recognized that there is no love like a mother's love. For a minor child, I don't care whether it is a girl or boy * * * if the home is proper and the mother is a suitable mother and conducts herself as a mother and wife should, that is a very strong reason that she should have the custody of her own flesh and blood. The only thing here that complaint is made upon, insofar as Dick is concerned, is that he doesn't like his stepfather * * * I think * * * that there is some discretion in the court in finding it necessary or convenient that a guardian be appointed. Now, on the face of the record I cannot say that I find it necessary. It might always be convenient, but I cannot say that it is necessary by reason of anything that is occurring or has occurred where he now exists insofar as the home of his mother is concerned. Now, if, regardless of that situation, it is still his right and privilege, having attained the age of 14 years, to nominate his guardian, why, that is another matter * * *.’ (Emphasis added.)

The Court then directed that briefs be filed and stated the question for decision as ‘the right of the minor to arbitrarily nominate a guardian to whom the Court must give perference over and above a natural parent, because of the fact that the minor has attained the age of 14 years, as set forth in the code.’ (Emphasis added.) After considering this question the court denied the petition.

The court found (a) that the minor is of the age of 14 years, and (b) that he requested the appointment of his grandmother. The question presented for decision is whether the force of those findings is destroyed by other findings addressed to the subject of necessity and convenience. These other findings are: (c) that the minor ‘has been in the general physical custody of his mother under decree of divorce, and as modified, since on or about March 8, 1939 * * *.’; (d) that he ‘has lived in his mother's home practically his entire lifetime and that his mother now lives in Ukiah * * *.’; (e) that she ‘is a fit and proper person to have the care, custody, and control of said minor’, and (f) ‘that said * * * home in Ukiah is a suitable home for said minor.’ The court made a general finding ‘That it is true that all the facts and circumstances of the matter herein submitted, as shown by the evidence, show no necessity or convenience for the appointment of a guardian * * *.’

The question before us calls for a careful examination of the statutory provisions dealing with guardianships since in such matters courts do not act in the exercise of their general equity powers. Such proceedings are special proceedings and the validity of orders made in guardianship matters must be determined from a consideration of the statutes themselves, In re Guardianship of Salter, 142 Cal. 412, 413, 76 P. 51. See also In re Britt, 176 Cal. 177, 181, 167 P. 863, 864, where it is said that the courts in such matters act under ‘the plain mandate of our guardianship laws.’

Probate Code, § 1405 provides that ‘The superior court shall appoint a general guardian of the * * * person or estate, of minors * * * whenever necessary or convenient * * *.’ (Emphasis added.)

Probate Code, § 1406 provides that ‘In appointing a general guardian of a minor, the court is to be guided by what appears to be for the best interest of the child in respect to its temporal and mental and moral welfare; and if the child is of sufficient age to form an intelligent preference, the court may consider that preference in determining the question. If the child resides in this state and is over fourteen years of age, he may nominate his own guardian, either of his own accord or within ten days after being duly cited by the court; and such nominee must be appointed if approved by the court. When a guardian has been appointed for a minor under fourteen years of age, the minor, at any time after he attains that age, may nominate his own guardian, subject to the approval of the court.’ (Emphasis added.)

In the leading case of In re Guardianship and Estate of Kirkman, 1914, 168 Cal. 688, 144 P. 745, the court said: ‘The whole scheme contemplates the absolute right of the minor to have a guardian of his own selection after he is 14 years of age, provided always he selects a person who is, in the judgment of the court, a suitable person to act as guardian. The discretion of the court can be exercised only in the determination of the question whether the nominee is a ‘suitable person.” (Emphasis added.)

In the case of In re Meiklejohn's Estate, 1915, 171 Cal. 247, 152 P. 734, 735, the court in following the Kirkman case said: ‘The only difference between that case and this is that in that case the guardian removed was not a parent of the minor, while in this case the guardian displaced was her father. This relationship, however, is of no consequence, since the statute gives the minor the authority to select a new guardian, and does not make such power dependent upon relationship.’ (Emphasis added.)

The rules of those two cases have never been modified. If parental relationship is of no consequence, then these findings that the minor had been in the custody of his mother since 1939 and had lived in her home practically all his life, and that she is a fit and proper person to have his custody, are of no weight and lend no support to the court's determination ‘that the appointment of a guardian * * * is not necessary or convenient’ and lend none to the order contained in the judgment, that the minor ‘forthwith return to the home of him mother in Ukiah and continue there with his schooling.’

The language just quoted would seem to indicate that the court dealt with this case as an ordinary custody case where the question is simply, Which of two homes is the better for the welfare of the minor? or, Whether the custody should be changed?

During the hearing the court said: ‘If he has a fully qualified father and mother, or either one of them, who are taking care of him, it doesn't become necessary that a guardian be appointed’ and: ‘I am trying to find out if there is any necessity or any reason, or something in the background, that prompts and makes imperative a change in the domicile of this minor to be warranted, whether that is necessary.’ At the conclusion of the hearing he said ‘there is no love like a mother's love. For a minor child, I don't care whether it is a girl or boy * * * if the home is proper and the mother is a suitable mother and conducts herself as a mother and wife should, that is a very strong reason that she should have the custody of her own flesh and blood.’ (Emphasis added.) These remarks likewise indicate that the problem before the court was treated as a contest over the custody of a child under 14. But it was quite different from that, since it involved the statutory right of the child himself to choose his own guardian regardless of his custody or status while under 14.

The rules of the Kirkman and Meiklejohn cases have been repeatedly followed. See In re Guardianship of Estate of McSwain, 176 Cal. 287, 168 P. 117; Collins v. Superior Court, 52 Cal.App. 579, 199 P. 352; In re Guardianship of Kerr, 29 Cal.App.2d 439, 85 P.2d 145; In re Guardianship of Burket, 58 Cal.App.2d 726, 137 P.2d 475; In re Guardianship of Gianoli, 60 Cal.App.2d 504, 140 P.2d 987. Each of these cases dealt, as this case does, with the guardianship of the person of a minor, and in the McSwain, Burket and Gianoli cases it was urged, as it is now, that there was no showing of necessity or convenience. In the Gianoli case, where the girl's father opposed her nomination of her maternal aunt (and her husband) for the guardianship of her person, urging that no necessity existed, it was conceded that the father was a fit and proper person, but the court nevertheless appointed the nominees, and the Supreme Court denied a hearing.

The case of In re Guardianship of Person and Estate of Wise, 179 Cal. 423, 177 P. 277, 279 is not cited by either side. However, in that case the ‘necessary or convenient’ provision receives considerable attention in connection with the section giving preference to parents in the appointment of guardians of children under 14.

There the mother of a 9 year old boy and his grand-aunt separately petitioned for guardianship of his person and estate. Both petitions were denied on the ground, inter alia, that there was no necessity for the appointment of any guardian because ‘the child was in a suitable and comfortable home’ (that of his great-grandmother) and the court ordered that he remain therein, just as here the court ordered that Richard remain in his Ukiah home. In reversing the order the court said: ‘It is argued with much force * * * that this section [1747] vests in the court a wide discretion in determining what may be necessary or convenient for the child and its interests. This may be freely conceded, but that concession does not free us from the force of section 1751 * * * which provides that—‘The father or the mother of a minor child under the age of fourteen years, if found by the court competent to discharge the duties of guardianship, is entitled to be appointed a guardian of such minor child, in preference to any other person.’ * * * To allow such an order to stand would be to substitute the discretion of the court for the compulsion of the statute which gives preference to a qualified parent. * * * It is suggested * * * that such an interpretation of section 1751 as this court has given would have the effect virtually to eliminate the words ‘necessary or convenient’ from section 1747. If that were its effect, there would be nothing novel in the dominance of section 1751, for we have seen that it was held in the second of the appeals in Re Mathews' Estate that the preferential parental right bestowed and declared by section 1751, unless forfeited by abandonment or some other disqualification, overcomes and controls the discretion which the court might otherwise enjoy under the terms of section 246 of the Civil Code * * *. But in the present proceeding we are bound to give the effect to section 1751 sanctioned by the authorities above cited, and others to which reference might be made, and we are compelled to hold that the finding of lack of necessity for the appointment of a guardian is not supported and justified by the evidence.'

The opinion in the Britt case, supra, declares that ‘this court had been inflexible in the enforcement of the parental right * * * under the plain mandate of our quardianship laws.’ (Emphasis added.) The right enforced in the Wise case under what the court there termed ‘the compulsion of the statute’ was the right of a parent (as the statute then read) to guardianship of a child under 14 (the statute contained that age condition). The present case involves a different right—that of the child himself to name his own guardian. The present right exists, to again quote the Britt case, ‘under the plain mandate of our guardianship laws', since § 1406 provides that ‘such nominee must be appointed if approved by the court.’ In the Wise case the determination of lack of necessity was based on the fact that the great-grand-mother's home was a suitable one, which finding was held to be unsupported. Here a similar determination was based on the fact ‘that said minor's mother's home in Ukiah is a suitable home for said minor.’ Here it was also based on the fact that the mother was a fit and proper person and that she had had the custody of the minor while he was under 14, but these latter considerations (all relating to the mother's claims as a parent) must be ruled out if the Meiklejohn case is to be followed. The reasoning of the Wise case seems to be applicable to the present case.

It is interesting to note—although not necessary to this discussion—that since the decision of In re Guardianship and Estate of Kirkman the legislature has definitely reduced the powers of judges with respect no nominations. Section 1749, Code Civ.Proc. then read: ‘If the guardian nominated by the minor is not approved by the court, or if the minor resides out of the state, or if, after being duly cited by the court, he neglects for ten days to nominate a suitable person, the court or judge may nominate and appoint the guardian in the same manner as if the minor were under the age of fourteen years.’ When the Probate Code was enacted that provision was excluded.

The judge in his written opinion quoted from In re Guardianship of Hann, 100 Cal.App., 743, 281 P. 74, 75, where this court said: ‘The court was not bound to appoint a guardian simply because the minor nominated one. Newton v. Janvrin, 62 N.H. 440. The court, not the minor, is required to decide whether a guardianship is necessary or convenient.’ Respondent relies on that case, but it is apparent from that opinion that unusual circumstances existed there which made it wholly unlike most guardianship cases. Moreover, as pointed out in Re Guardianship of Burket, supra, [58 Cal.App.2d 726, 137 P.2d 477] (where also it was cited on the question of necessity): ‘No light from that case is available for the benefit of appellant. The evidence and proceedings of the trial were not before the appellate court. For that reason it was assumed that the evidence supported the decision.’

The case of In re Adoption of McDonnell, 77 Cal.App.2d 805, 176 P.2d 778, cited by respondent, was a proceeding involving both the adoption and the guardianship of a baby and for that reason it is not in point. Nor is the case of Greene v. Superior Court, 37 Cal.2d 307, 231 P.2d 821, in point, since it involved the guardianship of children aged 5 and 7. It is true that it disapproved the Collins, Kerr and Burket cases, cited earlier herein, in so far as their holdings on the jurisdictional point were concerned, but it did not shake in any way the authority, of those cases on the efficacy or force of a nomination by a minor over 14.

The findings as originally drawn and filed were silent with respect to the fitness or suitability of the minor's nominee. Three weeks after the order, and over two weeks after the appeal was taken, amended findings and an amended order were filed. The only change was the addition of a finding ‘That * * * Angelina Kentera, grandmother of petitioner and the person designated by petitioner as the guardian of his person is a fit and proper person to have the care, custody and control of said minor.’ Respondent contends that the court had no jurisdiction to amend the findings after the appeal had been taken. It is not necessary to decide that question.

We are satisfied that the determination that there was no necessity for the appointment of a guardian is not supported or justified by the evidence and that the findings do not support the order.

The order is reversed with the direction to the Superior Court to make findings and an order with respect to the suitability of the minor's nominee for appointment as guardian.

I dissent. The question involved in this case put plainly is: May every child upon reaching the age of fourteen years as a matter of right repudiate and cast off his parents and leave their family home if he can find any fit and proper person whom he prefers to his parents who will assume the duties of guardian of his person? My associates have held that our law compels just this. That way lies family anarchy.

No longer will any father or mother dare to exercise the normal and salutary control over little Willy or his sister which all of the inherited wisdom of our Christian civilization teaches us is their parental obligation, lest the recalcitrant child upon reaching the mature age of fourteen should exercise his absolute right to emancipate himself completely from parental control by nominating a doting grandmother, a complaisant aunt or indeed a complete stranger to be his guardian. In the topsy-turvy world thus created the child shall rule over his parents and the millenium of the teenager has arrived.

No decided case compels this conclusion and the only case in which the precise question was raised, other than In re Guardianship of Hamm, 100 Cal.App. 743, 281 P. 74, hereinafter quoted from, In re Guardianship of Estate of McSwain, 176 Cal. 287, 168 P. 117, left it undecided as moot. In my judgment the opinion of my associates writes out of the code the words ‘necessary or convenient’. Proc.Code sec. 1405. Where there is property the appointment of a guardian of the estate is obviously necessary or convenient and a minor over 14 is entitled to nominate and have appointed a fit and proper guardian of the estate. Where a guardian of the person has already been appointed the question of necessity and conveience is thereby established and on reaching 14 the minor is entitled to have substituted a fit and proper guardian of his own choice. Where the court finds that it is necessary or convenient it is required to appoint a fit and proper person nominated by a minor over fourteen as guardian of the person rather than the parents. A child on reaching age fourteen may elect one parent over the other as his guardian where the parents are separated. But that is as far as any of the cases have gone.

I cannot agree that every child over fourteen who would prefer some stranger to his parents is entitled to have his nominee appointed guardian of his person on the showing alone that the nominee is a fit and proper person. If the parents are fit and proper and there are no other controlling circumstances the appointment of a guardian of the person is in my view neither necessary nor convenient.

I agree with the statement of this court in In re Guardianship of Hann, supra, 100 Cal.App. 743, 746, 281 P. 74, 75: ‘It is provided in Code Civ.Proc. § 1747, [now Prob.C. sec. 1405] that the court may appoint a guardian for a minor ‘when it appears necessary or convenient.’ The court was not bound to appoint a guardian simply because the minor nominated one. Newton v. Janvrin, 62 N.H. 440. The court, not the minor, is required to decide whether a guardianship is necessary or convenient.'

I vote to affirm the order.

GOODELL, Justice.

NOURSE, P. J., concurs.

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