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


Civ. 15252.

Decided: April 27, 1953

John F. O'Sullivan, San Francisco, Millington, Dell'Egro, Weeks & Morrissey, Redwood City, for appellant. Dion R. Holm, City Atty., City and County of San Francisco and Clayton W. Horn, Deputy City Atty., San Francisco, for respondent.

This appeal was taken from a judgment for defendant in an action wherein the plaintiff, acting by his father as guardian ad litem, sued for $30,000 damages for personal injuries.

On August 29, 1945 the minor was injured while riding as a passenger on a Municipal Railway car when it collided with another such car at the intersection of Duboce Avenue and Fillmore Street in San Francisco.

The minor at the time was in the personal custody of his mother pursuant to a court order in the divorce action between his parents, and about ten months after the accident she initiated, without the father's participation, proceedings for the compromise of the minor's disputed claim, § 1431, Prob. Code, and received from the city $500 for which she signed a release on the minor's behalf.

Almost two years later the present action was filed, the complaint alleging nothing respecting the settlement or release. The city's answer denied liability and pleaded as a special defense that the $500 settlement had been made and the release given pursuant to an order ‘duly given, made and entered’ by the Superior Court. The issue so raised was tried separately without a jury under the procedure of § 597, Code Civ.Proc., and the burden of proving such defense rested on the city. The court found and concluded that the order approving the compromise was valid and that appellant's attack was a collateral attack and could not be sustained.

The appellant concedes that the attack was collateral but contends, nevertheless, that the court had no jurisdiction to approve the compromise because the mother lacked the legal capacity to represent the minor in those proceedings, and that the record now under review (despite the indirect nature of the attack) shows beyond question that the court was devoid of jurisdiction to approve the compromise.

Section 1431, Prob.Code, read at the time as follows: ‘When a minor has a disputed claim for damages, money or other property against a third person, his father, or if his father is dead or the parents of said minor are living separate or apart and his mother then has care or custody of said minor then his mother, shall have the right to compromise, or execute a covenant not to sue on, such claim, but before the compromise or covenant is valid it must be approved by the superior court of the county where the minor resides, upon the filing of a verified petition in writing. * * * The father or mother * * * upon receiving such money or other property may execute a full release and satisfaction of, or execute a covenant not to sue on the claim of the minor. * * *’ (Emphasis added.)

In 1937 this court had before it a somewhat similar case, In re Parrino, 24 Cal.App.2d 128, 74 P.2d 549, at which time the language just emphasized was not contained in § 1431. It then provided that the mother had the right to compromise only in cases where the father was dead or had deserted or abandoned the child. The Parrinos had eeen divorced and the custody of their daughter had been awarded to the mother. The girl was injured and her mother compromised the disputed claim. Later the girl's father moved the Superior Court to set aside its order approving the compromise on the ground that the mother had no legal capacity to act in the matter, which motion was granted. In affirming the latter order this court said: ‘The right of either the father or mother to compromise such a claim is purely statutory and the Legislature saw fit to confer it upon the mother only in cases where the father is dead or has deserted or abandoned the child. Such is not the case here.’

The motion in the Parrino case, made before the same court that had approved the compromise, was a direct attack, hence that case differs from this in that one respect, but that difference is not material, as will hereafter appear. The principle of the Parrino case, in our opinion, is controlling herein despite the change in the statutory language, since the present question is, Whether the mother had the legal capacity under § 1431 to handle the compromise, which was precisely the question presented in the Parrino case.

The Parrino case holds that compromise proceedings of a minor's claim are ‘purely statutory’ which means, of course, that the ordinary rules of code pleading must be observed and it must be made to appear to the court by pleading and proof that the petitioner has the legal capacity to negotiate for the minor and settle in his behalf. The record in the compromise proceeding in this case contains no such showing.

Mrs. Burge's verified petition alleged:

‘The petition of Ova [sic] Burge, respectfully shows:

‘1. That petitioner is the mother of Lyndle Burge, a minor, age fourteen, and that both petitioner and the minor are residents of the City and County of San Francisco.

‘2. That minor has disputed claim for money against the City and County of San Francisco for injuries sustained by minor when an accident occurred on August 29, 1945, at Duboce and Fillmore Streets involving a collision of Streetcars ‘N’ and No. 22, operated by the City and County of San Francisco.

‘3. That said City and County of San Francisco offered to pay in compromise of said claim the sum of Five Hundred ($500.00) Dollars, which, in the opinion of petitioner is a reasonable compromise, and that it will be to the best interest of said minor if said compromise is accepted by this Court.

‘Wherefore, petitioner prays that the Court approve said compromise and direct that said money be paid to her without the filing of any bond.

‘Iva Burge,


The only jurisdictional facts alleged, aside from the injury, were that the petitioner was the minor's mother and that he resided in San Francisco. There was no allegation (a) that his father was dead, or (b) that the parents were living separate or apart, or (c) that she had the minor's ‘care or custody’.

On the day the petition was filed this order was made: ‘Upon reading and filing the verified petition of Iva Burge for an order approving compromise of the disputed claim for minor that Iva Burge has against the City and County of San Francisco, and it appearing to the Court that the compromise offer is reasonable. It is hereby ordered that said compromise be and it is hereby approved, and that the said City and County of San Francisco, is hereby directed to pay the sum of Five Hundred ($5.00.00) [sic] Dollars to Iva Burge, a minor, [sic] without the filing of any bond.’ (Emphasis added.)

It has been noted earlier that the petition failed to allege (a) that the minor's father was dead, or (b) that his parents were living separate or apart, or (c) that the mother had his ‘care or custody’. The order failed to recite or find any of these jurisdictional facts (a), (b), or (c). It does not even show by recital, finding, or otherwise, that the person who petitioned the court for approval of the compromise was the mother of the minor. It does not show that the claim was the minor's claim; it speaks of ‘the disputed claim for minor that Iva Burge has'. The minor is not named in the body of the order. The concluding line of the order is a direction to the city and county to pay the sum of $500 to ‘Iva Burge, a minor’. (Emphasis added.)

It was admitted at the trial that there was no hearing on the petition; that the petition was not drawn by an attorney employed by the mother or son; that the mother did not appear or testify before any judge, nor did the son; that the order was simply laid before the judge with a half dozen other such orders, all clipped together, and he signed it. It appears that the approval of the compromise was attended by no more deliberation in the courtroom or chambers than would have attended an order extending time. The fact that there was no hearing is not emphasized by us; it is simply mentioned to give a complete picture of the compromise proceedings, such as they were.

The defects and deficiencies in the petition and order are glaring enough, but the real reason why, in our opinion, the order was utterly void goes even further. At the time Mrs. Burge handled this compromise she had been divorced from the minor's father and the judgment in that case contained the following order which was then in full force: ‘that the * * * plaintiff and defendant have joint custody and control of the * * * minor children, with personal custody in the defendant * * *’ (the mother).

While the petition contains conspicuous internal evidence of having been hurriedly drawn, it may well be that the omissions therefrom were calculated and intentional. We refer particularly to the omission of the allegation which, under the ordinary rules of code pleading would make some pretense at following the provisions of § 1431, that ‘the parents of said minor are living separate or apart and his mother * * * has care or custody of said minor’. The petition was required to be verified, and it may well be that the mother declined to go so far as to allege under oath that she had ‘care or custody’, in the face of the order awarding to both parents joint legal custody and control. Had she alleged that she had care or custody (without more) such allegation would have been disingenuous, and had she come right out with the full truth by alleging that the father shared with her joint legal custody and control she would have stated herself out of court. This is the real point in this case. Other loose allegations may be left out of the picture for the purpose of the present discussion, but the fact remains that the mother could not have pleaded and proved that she had care or custody within the meaning and intent of § 1431, in the face of the joint custody order to which the ‘personal custody’ order was but subsidiary and subordinate. It is inconceivable that the legislature intended to take from a father, who shares joint legal custody and control with the mother, the power to make a settlement for a minor simply because the mother has ‘physical custody’.

The Supreme Court has recently said that one of the essential elements of custody is ‘the right to make decisions regarding [the child's] care and control, education, health and religion.’ Lerner v. Superior Court, 38 Cal.2d 676, 681, 242 P.2d 321. The same court quoted the same statement as recently as April 17, 1953, in Guardianship of Smith, Cal.Sup., 255 P.2d 761. The right of a parent to enjoy the care and companionship of a child under a ‘personal custody’ order is one thing; the right of a parent to have ‘joint custody and control’ (with the other parent) is an altogether different thing.

In the instant case the mother exercised the right to make a decision in a matter of grave importance. It is now claimed that Lyndle's injuries are permanent and a judgment for $30,000 is sought; his mother made the decision to settle the claim for $500, and if this judgment is affirmed her settlement will have barred the present action and put the minor out of court. Courts after all, in proceedings under § 1431 are dealing not with a mother's parental right to enjoy the companionship of her child but with the minor's legal right to be adequately compensated for his injury. If ‘joint custody and control’ means the right to make decisions respecting the minor's interests, then it cannot be said that the mother's settlement, based solely on her right to personal custody was a compliance with § 1431. We are satisfied that § 1431 does not contemplate that a mother having mere personal care and custody shall have the right to settle such a claim as this when the father shares joint legal custody with her.

Respondent argues that the phrase ‘care or custody’ in § 1431 is in the disjunctive. Counsel says: ‘The words care or custody need no involved interpretation. A mother may have the care of a minor, when the parents have separated without a divorce decree. The mere fact that the minor was physically living with his mother and that she was taking care of him constitutes ‘care’ within the meaning of the statute.'

The trial judge seems to have accepted this view for he said: ‘But I think, the mother having the care, if the mother alleged in the petition that she had the actual care and the father and mother were separated * * * I would get over that one hurdle * * *.’ But it is to be borne in mind that neither the separation nor the mother's actual care was alleged in the petition, or recited or found in the order of approval.

It is true that the statute uses ‘care or custody’ in the disjunctive, but the two words when found in such a statute mean the same thing. One of the definitions of the noun ‘care’ given in Webster's New International Dictionary, 2d Ed., is ‘Charge, oversight, or management, implying responsibility for safety. * * * Also, custody; temporary charge * * *.’ The same authority defines the noun ‘custody’ as ‘A keeping or guarding; care, * * *. Judicial or penal safe keeping; control of a thing or person with such actual or constructive possession as fulfills the purpose of the law or duty requiring it * * *.’ (Emphasis added.) The phrase ‘care, custody and control’, in everyday use by courts and lawyers, is accepted by everybody as expressing but one legal concept namely, ‘custody’. In our opinion, when the legislature used the words ‘care or custody’ it used them as synonymous. We are also mindful of the fact that the legislature spoke only of a separation, not of a divorce, and one way to interpret the statutory language is, that in cases of separation without divorce where the mother has the child she may act under § 1431. We have, however, the case of parents living separate and apart, but with a divorce wherein the judgment orders joint legal custody.

The separation, and personal custody were proved at the trial (not on the compromise) by the judgment roll in the divorce action, but the self-same judgment roll necessarily brought to the attention of the court at the trial that the legal custody was in both parents. It follows that Mrs. Burge could not have alleged or proved in the compromise proceeding that she had the ‘care or custody’ of her son within the meaning of § 1431.

This case does not differ in principle from the Parrino case. The fact that there the attack was direct, while here it is collateral, makes no difference since respondent's own evidence which contains the proof of joint legal custody, makes manifest the mother's lack of legal capacity to make the compromise and the court's lack of jurisdiction to approve it.

‘The rule is not that a judgment which is void will be enforced as if it were valid, but that it cannot be shown to be void except in certain ways. And if the parties admit or stipulate, or fail to object to the evidence of, the facts showing a lack of jurisdiction, it is then established that the judgment is void as effectively as though shown by the record; and whenever such fact is brought to the attention of the court, it is the duty of the court to so declare as a matter of law.’ 15 Cal.Jur. p. 62; see also Thompson v. Cook, 20 Cal.2d 564, 569–573, 127 P.2d 909 and cases cited.

Rico v. Nasser Brothers Realty Co., 58 Cal.App.2d 878, 137 P.2d 861, cited by the city, is not in point. There the minor sued on the ground of mistake, to rescind the compromise of a disputed claim and offered to return the money received in settlement. The minor's father had handled the compromise as § 1431 required, hence in that case there was no question of a failure to allege and prove the jurisdictional facts. The main attack was aimed at the failure to hold a hearing on the compromise. There was no such hearing in this case either as already appears, but our conclusion is not based on that ground.

The city's contention that appellant made no offer to return the money received in settlement is without merit since appellant does not seek a rescission.

The question whether in cases of joint custody both parents must join in proceedings under § 1431 is not presented herein. We simply hold that in this case, where the mother acted alone, she had no legal capacity to handle the compromise since the legal custody was joint rather than vested solely in her.

The trial court's decision that the compromise order was ‘conclusive upon plaintiff and may not be collaterally attacked’ was erroneous.

The judgment is reversed.

I concur. The problem presented is the proper construction of the 1939 amendment to section 1431, Prob.Code, which gives to the mother the power to compromise the claim of a minor child where ‘the parents of said minor are living separate or apart and his mother then has care or custody of said minor’. The crux of the question lies in the effect to be given the words ‘care or custody’.

In historical perspective it appears beyond doubt that this amendment was adopted to remedy the hiatus in the section as it previously read which was disclosed in In re Parrino, 24 Cal.Ap.2d 128, 74 P.2d 549. In the Parrino case it was held that a mother to whom exclusive custody had been awarded in a divorce action could not compromise the minor's claim under section 1431 as it then read: i.e., ‘if his father * * * has deserted or abandoned him * * *.’ To remedy this situation the legislature substituted for the words “has deserted or abandoned him” the language first quoted hereinabove.

It is obvious that to meet the exact situation of the Parrino case the use of the single word ‘custody’ in the substituted phrase would have been sufficient, but such a substitution would have left a new hiatus in the section and would not have taken care of the situation where no custody decree had been made but the father had voluntarily left the child in the sole physical control of the mother. It seems plain to me that it was to meet the latter situation that the word ‘care’ was added to the amendment.

If the parents are separated and no formal court order determining the right to custody has been made but the father voluntarily leaves the child with the mother she has in fact the ‘care’ of the child, although the question of ‘custody’ in the legal sense would depend upon factual questions not readily determinable in a proceeding under section 1431. Civ.Code, § 197, gives the custody exclusively to one parent only where the other is ‘dead or unable or refuse(s) to take the custody or has abandoned’ the family. In that situation where the mother has the actual ‘care’ of the child but the custody is uncertain because the custodial rights of the parents have not been formally adjudicated the legislature realizing the practicalities of the situation has given the mother the power to compromise.

The other situation, which exists where the rights to custody have been formally adjudicated by a court decree, is very different. There all uncertainty as to whether the father has lost his custodial rights or not is resolved by a formal adjudication. If by that decree the father's right to custody is established then the mother has not the ‘custody’ of the child to the exclusion of the father. In that case it seems logical to hold that the right to compromise should be determined by the more definitive word ‘custody’. So construing section 1431, where the custodial rights of the parents have been judically determined the key word in section 1431 is the word ‘custody’; where the custodial rights of the parents have not been judically determined the key word is ‘care’.

The legislature in section 1431 has primarily given the right to compromise the claims of minor children to the father, traditionally the head of the family. It has taken that right from the father and given it to the mother in two instances: 1. where the father without court decree has voluntarily surrendered his parental rights to the mother, i.e., where ‘the parents * * * are living separate or apart and his mother * * * has care * * * of said minor’: and 2. where by court decree all custodial rights have been taken from the father and given to the mother, i.e., ‘his mother * * * has * * * custody of said minor’.

I reach this conclusion the more readily because in a closely related field, the guardianship of minors, a clear distinction is made between care of the person of a minor and care of the minor's property rights, so that we may have one guardian of the person and another of the estate. Section 1440, Prob.Code. Where, as here, the general custody of the minor has been given to the father and mother jointly with ‘personal’ custody in the mother the same distinction seems properly applicable.

I dissent.

I disagree with the construction given by my colleagues to section 1431, Probate Code, in its application to this case. The section is applicable both during marriage and after divorce. During marriage the father and mother, even if they live separate and apart, have equal legal custody of their minor children. Sections 197, 198, Civil Code. Therefore, when during marriage section 1431 gives the right to compromise to the mother if she has ‘care or custody of said minor’ this can only mean if she has the factual care or custody, i.e., the fact that the wife actually (and lawfully) cares for and guards the child. The interlocutory decree in this case gave joint custody and control of the minor children to the parents thereby continuing the legal custody as it was during marriage under sections 197 and 198, Civil Code, but gave the ‘personal custody’ to the mother, giving her a more permanent factual care or custody than exists when during marriage parents live separate and apart. There is then here at least as much reason to consider this factual care or custody of the mother as decisive of the right to compromise under section 1431, Probate Code, as when there is no divorce. The expression ‘personal custody’ can have no special significance as excluding control of property or estate because such control is at any rate not included in parental custody, section 202, Civil Code; 13 Cal.Jur. 143.

The main opinion recites several imperfections of the approval of the compromise but the reversal is not and should not be based on them.

I am of the opinion that the judgment should be affirmed.

GOODELL, Justice.