Guardianship of Romine

California Court of Appeal Apr 22, 1949 No. Civ. 7581Published

Before: Thompson

AI Brief

AI-generated · verify before citing

Holding. The court held that a trial court does not abuse its discretion in terminating a guardianship and restoring custody to a parent when the conditions necessitating the guardianship have changed and the parent is found to be fit.

Issues

Whether the trial court erred in terminating the guardianship on the grounds that it was no longer necessary.
Whether the father abandoned his child by consenting to adoption or failing to pay maintenance after custody was refused.
Whether an issue of abandonment not raised in the pleadings can be considered for the first time on appeal.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The intention of a parent to permanently abandon his child must clearly appear before he may be deprived of its custody on that account.”

“As a general rule an issue not presented by the pleadings may not be considered for the first time on appeal.”

[391]

THOMPSON, J.

Justine V. Pingree, the former guardian of the person and estate of Edward Kenneth Romine, a minor child, has appealed from a judgment rendered under section 1580, subdivision 8, of the Probate Code, terminating her guardianship on the ground that it is no longer necessary, and restoring the child to the custody of his father.

It is contended the judgment is not supported by the evidence for the asserted reasons that the father is unfit to have the custody and control of his minor child, and that he abandoned the child by consenting to its adoption, and by failure to pay installments for its maintenance.

The respondent is a lieutenant in the United States Navy. During the late war he was engaged in naval battles in the Pacific. He was a survivor of the sinking of the U. S. S. Wasp. He was formerly married to Betty Lee Romine. As the issue of that marriage, the child, Edward Kenneth Romine, was born. The child is 8 years of age. In 1940, this respondent was granted a divorce from his wife Betty, and the custody of the child was awarded to him. For the reason that the father was actively engaged in naval service for the government and, therefore, could not maintain a suitable home for the child during the war, or give it his personal supervision, he consented to the appointment of appellant as guardian. The appellant is not related to the child. She was appointed as guardian October 30, 1942. The respondent agreed to pay her $25 per month for its maintenance, and did so until September, 1943, after he had made demand for custody of the child. After the war was over and he was assigned to land duty and had established a home at Long Beach, he then again demanded custody of the child, which was refused. In the meantime the appellant performed excellent service in properly caring for the child, for whom she acquired genuine love and affection.

After repeated and futile demands for the custody of the child, the father filed the petition in Placer County, October 14, 1947, to terminate the guardianship on the ground that it was no longer necessary, and to recover the custody of the child. The appellant appeared personally and by attorney at the hearing to oppose the application, but failed to file an answer to the petition or written opposition thereto. Oral and documentary evidence was adduced. The court adopted findings to the effect that appellant had been duly appointed guardian with the consent of the father for the reason that he

Guardianship of Romine

AI Brief

THOMPSON, J.

More from California Court of Appeal

Related research

AI Brief