Loan v. Prehoda

ARTHUR, J. Appellants and appellee are respectively the grandparents and father of Dorothy Hazel Prehoda, a minor child of tender years. Hazel C. Prehoda, the mother, died a few days after the birth of Dorothy. At the time of her birth, appellee and his wife resided upon a farm owned by the former, in Washington County, where the former has since resided. Appellants resided in Johnson County. Shortly before the death of her mother, appellants took Dorothy to their home in Johnson County, where she has been continuously cared for by them. On August 17, 1920, appellants were, upon application to one of the district judges of Johnson County, appointed temporary guardians of Dorothy, and at the same time, a temporary restraining order, restraining appellee from removing Dorothy from the possession of appellants, was issued. In due time, appellee filed a motion to dissolve the temporary injunction and to set aside the appointment of appellants as temporaiy guardians of Dorothy and to dismiss the petition therefor, upon various grounds, among which was that the district court of Johnson County did not have jurisdiction to make such appointment. The motion was heard upon affidavits and counter affidavits. The court dissolved the temporary writ, set aside the order appointing appellants as temporary guardians, and dismissed their petition. [309] “Parents are the natural guardians of the persons of their [310] minor children” (Section 3192, Code, 1897), and their domicile is ordinarily that of the parent. Section 2224, Code, 1897. In re Guardianship of Johnson, 87 Iowa 130; Jenkins v. Clark, 71 Iowa 552; Hindorff v. Sovereign Camp, 150 Iowa 185; In re Guardianship of Benton, 92 Iowa 202. The domicile of origin in this case was Washington Comity, and, unless the domicile had been changed by some act of the parents, it continued in that county. It is alleged in the petition that Hazel C. Prehoda, the mother of Dorothy, orally gave her to appellants, shortly before the mother’s death, to rear until she attained her majority, and that appellee acquiesced in said arrangement and agreement. Appellee, however, attached his affidavit to the motion to dissolve the injunction and set aside the appointment of appellants as guardians, denying that he at any time gave Dorothy to appellants, or acquiesced in or consented to any arrangement by which they were to have the custody and rearing of her until she attained her majority. The affidavit further recites that whatever arrangement was made was temporary only. Counter affidavits were filed by appellants, reaffirming the allegations of the petition, and affirming that appellee frequently admitted the contract and agreement, as alleged in their petition. The court found that there had been no change of domicile. Oral gifts of children, under the circumstances shown by the affidavits, have not been favored by this court. Burger v. Frakes, 67 Iowa 460; In re Guardianship of Johnson, 87 Iowa 130. There is no allegation in the petition, or claim in the affidavits filed, that appellee independently agreed to give Dorothy to appellants, or to release his natural right to guardianship over her. Prior to the hearing in the court below, he was appointed permanent guardian of Dorothy, in Washington County. The parties elected to try the issues presented upon affidavits. The findings and conclusion of the court are well sustained by the record. The showing was wholly insufficient to have justified a finding that appellee had legally bound himself to surrender his right to the custody of his minor child for more than a temporary purpose. This being true, the domicile of Dorothy con311 tinned to be tbe domicile of'her surviving parent, and the distinct court of Johnson County was without jurisdiction to appoint a guardian of her person. The dissolution of the temporary writ followed as a matter of course. The father owns and operates a farm in Washington County, on which he resides, and no claim is made that he is an improper person to rear the child. The judgment of the court below is affirmed. — Affirmed. ' SteveNS, C. J., Evans and Faville, JJ., concur.