Gottlieb v. MacLean

GOODELL, J. The minor is the son of respondent and his deceased wife. The parents had been divorced, with custody of the minor awarded to his mother. [145] Mrs. MacLean died in March, 1950, and on April 17, 1950, respondent was appointed guardian of the person and estate of the minor who was then 13. Mrs. MacLean and appellant were sisters. From the time of respondent’s appointment (and before that) the minor was unfriendly toward him; his attitude challenged respondent’s authority as father and guardian. The minor was living in the household of appellant, who shared this attitude. The situation became so strained that in July, 1950, the father as guardian filed in this court a petition for a writ of habeas corpus to obtain the custody of the minor. At the hearing on the writ on August 14, 1950, the minor appeared before us (without counsel) and it was apparent that he rebelled against living with his father or having anything to do with him. The father had remarried and was living in Oakland. It appeared also that the minor would reach the age of 14 on December 23, 1950, when of course he could name his own guardian. We dismissed the habeas corpus proceeding and things remained as they were for the ensuing four months. On the minor’s 14th birthday he nominated appellant as guardian of his person and estate and three days later, on December 26, she filed in the Superior Court in San Francisco, where the guardianship was pending, a petition for letters of guardianship based on the nomination. At the hearing the following month respondent, who was still guardian, opposed the approval of the nomination. The court denied appellant’s petition and this appeal was taken. Section 1406 Probate Code provides that the nominee “must be appointed if approved by the court” and Guardianship of Kirkman, 168 Cal. 688, 690 [144 P. 745], holds that in such cases “The discretion of the court can be exercised only in the determination of the question whether the nominee is a ‘suitable person.’ ” That being so, the only question now presented is whether there was an abuse of discretion. The court wrote an opinion wherein numerous reasons were given for its action, but it is not necessary to quote at any length from either the opinion or the findings. We are satisfied that there are at least two grounds, regardless of any others there may be, upon which it must be held that this record shows no abuse of discretion. In the memorandum opinion the court, in speaking of the earlier proceedings said: “It is fair to state that petitioner [146] has, without cause or justification, and by her own admission, thrown every possible obstacle in the way to prevent the father from obtaining the physical custody of the minor to which he is entitled. Her appeals, subsequently dismissed, were patently frivolous and are typical of the tactics to which she has resorted to balk the execution of the order of the court, which she has contemptuously ignored, and she in fact testified that she had done everything she could to prevent the father from obtaining the custody to which he was legally entitled. ’ ’ That statement was based on the history of the proceedings pending before the same judge from April, 1950, to January, 1951. It was also unquestionably based in part on the following testimony which the appellant with the utmost frankness gave under cross-examination at the hearing: “Mr. Devoto: Q. I am ^sking you, didn’t you repeatedly ignore and disregard the court order? A. Yes, on legal advice ... “Q. You knew of the order appointing the father guardian pending the appeal? A. Yes. “Q. And you did everything to ignore and disregard that order, didn’t you? Isn’t that correct? A. Yes- “Mr. Golden: This is all calling for a conclusion, and argumentative. “The Court: Well, it would go to the question of whether she prejudiced the mind of the boy or not, and I think this evidence is admissible on that subject . . . “Mr. Devoto: Q. If you didn’t consider yourself beyond and above the law, why didn’t you obey those orders and turn the custody of the boy over to the father—answer that question. A. Because Peter didn’t want to go to his father. I was fighting for Peter. ‘ ‘ Q. That is your only reason ? A. That is the only reason. “Q. You don’t think you should have given any more respect to a court order than that? A. No, sir. Peter was at stake, not the Court.” On the same subject the court found: “That at all times herein mentioned said Lottie Gottlieb has contemptuously ignored the order of this court appointing said father such guardian, and has, without cause or justification, thrown every possible obstacle in the way to frustrate said father in obtaining the physical custody of said minor . . . that as a direct result thereof, said father was at all times deprived of the actual custody and possession of said minor.” [147] It should be borne in mind that appellant was testifying in support of her own petition to become guardian in a proceeding wherein the only question before the court was her suitability to administer that trust as an officer of the court, the orders of which she frankly admitted flouting. The court in ruling said that appellant’s attitude bore on the question “whether she prejudiced the mind of the boy or not,” but, more than that, it was an index of her lack of amenability to the authority of the court of which she purposed becoming a sworn officer in a highly trusted relation. We find no abuse of discretion on this count. In the opinion the court also said: “In addition to the personal unfitness of petitioner to be appointed guardian of this minor, the court also considered that there is real estate involved in this proceeding which formerly stood in the name of the minor’s mother, and which now stands in the name of petitioner, Lottie Gottlieb. This property is the house in which the mother of the minor lived for many years, and in which it may be presumed the minor has a beneficial interest. Petitioner has stated in open court that this property belongs to her, and therefore has an interest adverse to the minor, who obviously could not be adequately represented by petitioner in litigation to assert his interest.” And on the same subject the court found: “That said Lottie Gottlieb is interested in certain improved real property . . . adversely to the interest of said minor, which property said Lottie Gottlieb claims to have been deeded to her by said minor’s mother, a few days before, or on the day of, the death of said mother, the validity of which deed said father as such guardian questions and intends to have determined in appropriate legal proceedings.” Appellant testified that the property was hers and had stood in her name, but that for a reason of her own she had put the title in the name of Mrs. MacLean. When Mrs. MacLean was on her deathbed appellant got her to deed the property back to her. During cross-examination appellant was told by respondent’s counsel that a suit was to be brought respecting this property, and in the briefs we are told that such suit has since been brought by the special administratrix of Mrs. MacLean’s estate. If the estate prevails obviously Peter as an heir of his mother will have a substantial interest in the property. Appellant’s assertion that the property is hers presents a clear-cut conflict of interests between appellant and the minor. We find no abuse [148] of discretion on this count. (See Estate of Bedford, 158 Cal. 145 [110 P. 302].) In the opinion filed by the court it is said: “It is . . . the opinion of this court that the best interest of the minor will be served by his remaining under the guardianship of his father ...” The formal order says nothing with respect to a continuance of the guardianship in the father, and indeed that question was not before the court. The only question was the approval or disapproval of the minor’s nominee. Under section 1406 as it now reads it would seem that on the denial of this approval the minor has the right to make another nomination which if made must again be submitted for judicial approval. The order appealed from is affirmed. Further ordered that the costs incurred by appellant for the preparation of that part of the reporter’s transcript consisting of the second section be taxed against the respondent in his individual capacity and not as guardian. Dooling, J., concurred.