Guardianship of Denny

97 Cal.App.2d 763 (1950) Guardianship of EDWARD THOMAS DENNY, Jr. (a Minor). EDWARD THOMAS DENNY, Appellant,

v.

MARY CAROLYN FINE, Respondent.

Civ. No. 14355. California Court of Appeals. First Dist., Div. Two.

May 26, 1950. Melbert B. Adams and Bruce E. Clark for Appellant.

Jones, Lane & Weaver for Respondent.

NOURSE, P. J.

The petitioner and appellant sought letters of guardianship of his minor son aged 5 years. The trial court denied his petition.

The petitioner and respondent were married in 1941. They had two children. In 1946 respondent went to Nevada to get [764] a divorce, taking the older child, a girl, with her and leaving the younger, a boy, the subject of this controversy, with the father. By special agreement, and at the instance of respondent, the latter procured a condition in the Nevada decree that she should have custody of the daughter, and petitioner should have custody of the son. The respondent married another and made her home in Tracy. The appellant later remarried and retained his home in San Mateo County.

This condition continued for about three years when the respondent, under the false pretense that she would return the son to petitioner, procured the latter's consent to let the son visit her in Tracy. She refused to return him and started a suit in San Joaquin County to obtain legal custody. That action was transferred to San Mateo County and was pending at the time of the hearing of this proceeding.

[1] Appellant proved a prima facie case for letters of guardianship and offered to make further and fuller proof, but the offer was denied by the trial court. Respondent made no counter showing relying wholly upon her asserted invalidity of the Nevada decree, and her surreptitious possession of the minor. All the authorities without exception support appellant's demand. He rested on a decree of the Nevada court awarding him custody of the minor and this decree was procured at the instance of respondent. If there was any fraud or imperfections in those proceedings they were all of the respondent's own choosing and she cannot now attack the decree. (Estate of Davis, 38 Cal.App.2d 579, 585 [101 P.2d 761, 102 P.2d 545]; Hensgen v. Silberman, 87 Cal.App.2d 668, 671 [197 P.2d 356].) There are so many other cases of our appellate courts directly in point that it is sufficient to refer only to the recent ones of Foster v. Foster, 8 Cal.2d 719 [68 P.2d 719]; and In re Kyle, 77 Cal.App.2d 634 [176 P.2d 96], where earlier decisions are cited.