In Re Pinnell

WASTE, P. J.

John H. Pinnell, the petitioner and appellant in this matter, sought to be appointed guardian of the person and estate of Mildred Bernice Pinnell, -the three year old daughter of himself and Erma M. Pinnell, his wife. At the time the application was made the minor was in the care of the mother, 'who, the petitioner alleged, was an unfit and improper person to have the custody of the child. These accusations were denied by the mother. The trial court found that the petitioner and respondent are husband and wife, living in a state of separation, but not divorced. It determined that both parents are fit and proper persons to have the care and custody of the minor, and that neither has any right superior to the other in that regard While they continue to live separate and apart. It determined that it would be for the best interests of the minor that she be placed, and remain, in the custody of the mother. It made an order to that effect, and directed Mrs. Pinnell to file an undertaking in the sum of two thousand dollars conditioned that she would not take, or permit the child to be taken, from the county of Fresno. The father was granted permission to visit his daughter at all reasonable times, and to have her in his exclusive custody during suitable hours of the day not to exceed two days in each week, provided that he should file an undertaking in the sum of one thousand dollars, payable to Mrs. Pinnell, conditioned that he could not take, nor permit the child to be taken, from the county of Fresno. From this order the petitioner has appealed.

[179]

The appellant specifies several errors as grounds for this appeal, none of which we find of sufficient merit to warrant a reversal of the judgment of the lower court.

It appears from the record that petitioner and respondent married in Fresno in 1916. The child was born in December of that year. Two years later the parties went to reside in the state of Washington, the petitioner later going to Wyoming, where he was employed in the oil fields, and where the mother and child joined him. The father’s employment took him away from home for long periods. In the latter part of 1919, while petitioner was absent at his_ work, the respondent with the little girl, in company with a woman friend and her three children, removed from her home in Glenrock to a cabin some thirty-five miles in the country. Here the petitioner found her some time later .living, he claims, in improper relations with one Salford. The child, at the time, according to the petitioner’s testimony, was in an unkempt and neglected condition. Petitioner was accompanied by a deputy sheriff, who had a warrant for Salford’s arrest, charging him with adultery committed with Mrs. Pinnell. There was introduced upon the hearing in the court below the record of a judgment of conviction of Salford in the justice court of Converse County, Wyoming, from which it appears that Salford pleaded guilty to the charge and was fined and sentenced to a term in the county jail.