Phillips v. Phillips

SPENCE, J. This is an appeal from an order granting a motion for change of venue in a guardianship proceeding. Bertrice Phillips, the mother of Deanne Phillips, a minor of the age of four years, filed her petition in the Superior Court of the City and County of San Francisco for appointment as guardian of said minor. The court directed that notice of the hearing be given to Donald E. Phillips, the father of said minor and to Mary Phillips, the paternal grand-, mother of said minor, who are respondents herein. At the commencement of the hearing, respondents’ counsel stated that he desired to make a motion for a transfer to Kern County. Counsel for petitioner objected to the hearing of [833]the motion upon several grounds. The court ordered the motion submitted and proceeded to hear the testimony presented by the petitioner and by respondents upon the merits of the petition. At the close of the testimony, the matter was argued and submitted. Thereafter, the court failed to pass upon the petition upon the merits but made its order granting the motion for change of venue. Petitioner appeals.

Appellant contends that the trial court erred in granting the motion and in failing to pass upon the petition upon the merits. We are of the opinion that this contention must be sustained. Respondents concede that there is no authority for the making of a motion for change of venue in a guardianship proceeding and- upon the oral argument, they conceded that their motion was “ill conceived and ill considered.” But they argue that regardless of any irregularities, the order should be affirmed under section 4% of article VI of the Constitution. This argument is baséd upon the claim that the superior court in San Francisco had no -jurisdiction and that the superior court in Kern County had exclusive jurisdiction to appoint a guardian for said minor and that therefore any error in ordering the transfer to Kern County was not prejudicial to appellant.

The facts upon which this argument is based are undisputed and may be briefly stated. In 1941, appellant and Donald B. Phillips, her husband, together with their minor child were residing in Kern County. In November, 1941, appellant obtained an interlocutory decree of divorce from Donald B. Phillips in the superior court of that county. Said decree, in accordance with the agreement of the parties, provided, “That the custody of the minor child, Deanne Phillips, should be award (sic) to Bertrice Phillips, defendant and cross-complainant. That the immediate care and control of said minor child, shall be in Mrs. Mary Phillips, grandmother of said minor child. That defendant and cross-complainant, Bertrice Phillips, shall have the right to visit said minor child, and to have the right to take said minor child to her home on certain holidays, like Thanksgiving, Christmas and also the right to have the child with her for a couple of days at a time, not exceeding six days in any one month.” Thereafter, the minor lived with Mary Phillips at the latter’s home in Kern County until October 18, 1942.