Phillips v. Phillips

SHENK, J. This is an appeal from an order granting letters of guardianship of the person and estate of Deanne Phillips, a minor, to her mother, Ber trice Marie Phillips.

In 1941 Ber trice Marie Phillips and Donald E. Phillips were husband and wife and were living in Kern County with their two-year-old child, Deanne. In November of that year the superior court in Kern County granted an interlocutory decree of divorce to the wife. In the decree it was provided that the wife was entitled to the custody of the child, but that the immediate care and control should be in Mrs. Mary Phillips, the child’s paternal grandmother, who also resided in Kern County. The mother was given the right to visit and take the child on holidays and for a few days at a time not exceeding six days in any one month.

In October 1942, the mother took the child to her home in San Francisco, and several days later she filed in the Superior Court in the City and County of San Francisco a petition to have herself appointed guardian of the person of the minor pursuant to section 1440 of the Probate Code. The father and paternal grandmother, the appellants herein, received notice of the proceeding and moved for a change of venue to Kern County on the ground that the superior court in San Francisco had no jurisdiction to appoint a guardian of the minor, and that the superior court in Kern County had exclusive jurisdiction of the subject matter. The court granted the motion. On the mother’s appeal from the order it was decided that the superior court in either the county of legal residence, Kern County, or of temporary domicile, San Francisco, had jurisdiction to appoint a guardian pursuant to section 1440 of the Probate Code. The order was reversed with directions to the trial court to pass upon the merits of the petition. (Guardianship of Phillips, 60 Cal.App.2d 832 [141 P.2d 773].)

Upon the going down of the remittitur the trial court appointed January 20, 1944, as the day for a further hearing. [386]A copy of the court’s order fixing the time and place was served on the appellants through their attorney, but no appearance was made by them or on their behalf. At the time the matter was called for hearing the petitioner offered for filing an amended petition which contained the additional allegation that the minor would have an estate of $5,000 conditioned upon the appointment of petitioner as guardian of her person and estate, and that it was both necessary and convenient that the court appoint petitioner as such guardian. The court permitted the filing of the amended petition and proceeded with the hearing. A written agreement was introduced, dated December 1, 1943, wherein Mrs. Fawn A. Thompson, the petitioner’s mother, promised the petitioner, on condition that the latter was appointed guardian of the person and estate of the minor, that she would pay the minor a total sum of $5,000, $500 thereof on the execution of the agreement (payment of which was in evidence) and $500 annually until the entire sum was paid. The agreement contained provisions purporting to give it the binding force of a judgment.