Duncan v. Garrett

SHEPARD, J.

This is an action to vacate and set aside an order appointing a guardian on the ground that the original order was obtained by fraud. Judgment was had by plaintiffs, and defendants appeal.

From the record before us it appears that the infant, subject of the guardianship proceedings, was born in Las Vegas, Nevada, on June 1, 1955, to Suzanne Van Ornum (now Duncan). Defendants herein had been apprised through a mutual acquaintance of the impending birth of the child and the possibility of receiving it for adoption. They went to Las Vegas, consulted an attorney, paid the medical and hospital

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hills for the birth of the child, received through the attorney a relinquishment signed by Suzanne, in which the name of the adopting parents was left blank, received custody of the child, and returned to San Diego. On June 27, 1956, defendants filed their petition in the guardianship proceeding, applied for guardianship of the infant child, and alleged in that petition that the child was illegitimate and that her father’s identity and whereabouts were unknown. Guardianship based on this petition was granted July 2, 1956. The judgment of the trial court in the ease now before us decreed and declared that the order of guardianship of the infant dated July 2, 1956, in case Number 56444, Superior Court of San Diego County, was null and void, the primary basis of such judgment being grounded on a finding by the trial court that the allegations of the petition regarding illegitimacy and lack of knowledge of the whereabouts of the father were false and fraudulent and known by petitioners to be false and fraudulent at the time the petition was presented to the court. The legal truth of these allegations is therefore the vital factor in this ease.

On June 1, 1955 (the date of the child’s birth) the mother, Suzanne, was unmarried and the alleged father was married to another woman. Suzanne relinquished the child on June 7, 1955. Carl, the alleged father, became eligible for a final decree of divorce from the other woman July 14, 1955, but no final decree of divorce was obtained at that time. Carl went through a marriage ceremony with Suzanne on July 18, 1955, but that marriage was bigamous and invalid and remained bigamous and invalid for more than a year later, that is, until August 7, 1956. On June 27, 1956, when the defendants filed their petition for guardianship of the child Carl had no legal standing as the father. He had refused at the time of the birth of the child to come and see it or to acknowledge his obligation or parenthood. He did not pay or offer to pay any part of the medical or hospital expenses of birth. He did not receive the child into his own home and acknowledge it as his own. A decree of divorce was obtained by Suzanne from Carl on December 20, 1956, and neither the pleadings nor the judgment in that case recite that the child here under consideration was a child of that marriage. Thus, even though on August 7, 1956, the