Guardianship of Stanfield

PULLEN, P. J.

This is an appeal from an order revoking letters of guardianship issued to appellant herein. The record discloses that in April, 1936, an action entitled

Rita Case Stanfield, Plaintiff,

v.

Orville Heber Stanfield, Defendant,

was filed in the Fourth Judicial District of Utah County, State of Utah, and in a judgment therein, the custody and control of the persons and estates of Orville DeVon Stanfield and Duane William Stanfield, the minor sons of the parties, was given to the mother, Rita Case Stanfield. Thereafter without the knowledge or consent of "Mrs. Stanfield, the husband abducted the minors while in the city of Boise, Idaho, and brought them to California. Within a few days thereafter Stanfield instituted guardianship proceedings in the County of Sonoma, State of California, and the court ordered that a citation directed to Rita Case Stanfield issue requiring her to appear and show cause why the petition should not be granted, and further directing that this citation, together with a copy of the petition be sent by registered mail to Mrs. Stanfield at Boise, Idaho. Service was made as ordered and was received by Mrs. Stanfield by registered mail at Boise, Idaho, on August 13, 1937. On August 27, 1937, Mrs. Stan-field not having appeared in the proceedings, the court appointed Stanfield as guardian of said minor children.

Several months thereafter, on May 13, 1938, Mrs. Stanfield, upon notice to Stanfield, moved for leave to answer the petition, and at the same time presented her supporting affidavit and proposed verified answer. On May 16th, this motion came on for hearing, at which time the court made its order vacating its previous order appointing Stanfield guardian and appointed Mrs. Stanfield as the guardian of the persons and estate of said minor children.

[285]

It is from the order vacating the previous order appointing appellant guardian that this appeal is taken.

It is the contention of appellant that the court erred in setting aside its previous order and appointing respondent guardian, for the reason there is no showing of merit in the motion to vacate the judgment, and that no showing of due diligence appeared in the record. In this appellant is in error. The affidavit of Rita Case Stanfield accompanying her application for permission to answer the petition of Stanfield shows that she is the mother of two minor sons; that the children were awarded to her custody and control by the District Court of the Fourth Judicial District in and for the County of Utah, State of Utah, and that Orville Stanfield was personally served with process therein, and that he was, by the court, directed to pay $25 a month for the support of his wife and children, but had paid nothing,that Stanfield abducted and kidnapped the minors from the custody of affiant and brought them to California, where he instituted these proceedings.