In Re Guardianship of Kerr

KNIGHT, J.

This is an appeal from an order appointing a guardian of the person of the respondent, Louise Elizabeth Kerr, a minor of the age of eighteen years.

She is the daughter of Andrew L. and Leonora Kerr, who in September, 1923, were divorced. By the terms of the divorce decree the care and custody of respondent, then four years old, was awarded to her mother, but she was maintained and educated out of a monthly allowance paid by her father. Subsequently each parent married again, the mother having become Mrs. Wallace. For a considerable period prior to 1936 the relations between the mother and daughter were at times extremely unpleasant; at other times, as shown by certain letters and communications written by respondent to her mother, they were on affectionate terms. In June, 1936, they went to New York on a visit, during which several violent quarrels took place between them. According to respondent’s testimony, her mother repeatedly called her vile names, accused her of gross misconduct, and of being a thief, struck her and otherwise abused and mistreated her. Finally respondent wired her father in San Francisco to send her allowance directly to her, which he did; and following a violent quarrel with her mother, as a result of which, so respondent claimed, her mother prevented her from taking the train, she boarded an airplane and flew back to San Francisco, where she took up her residence with friends; and on January 11, 1937, being then past eighteen years of age, she filed a petition in the superior court for the appointment of a guardian of her person, whom she nominated in the petition. Mrs. Wallace filed objections to the granting of respondent’s petition; and after a hearing in which both parents participated and gave testimony, the court announced that while there was no question about the fitness of respondent’s nominee to act as guardian, it believed that for reasons which it elaborated upon, it would be advisable to select someone else,

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and that it would appoint Mrs. Mary Conway Kohler as such guardian. Immediately following such announcement respondent and her nominee gave their consent thereto, and on April 21, 1937, a formal order of appointment was entered to that effect, from which Mrs. Wallace has taken this appeal.

The first point appellant urges for reversal of the order is that the court herein was without jurisdiction to hear or determine the guardianship proceeding instituted by respondent, her contention in this behalf being that where as here a decree of divorce is granted wherein provision is made for the custody of a minor child, the court in which such decree is rendered thereafter and at all times retains exclusive jurisdiction over the matter of the custody of said child. The casé of