Colombo v. Fleshman

McCOMB, J. This is an appeal by Mr. and Mrs. David E. Fleshman, guardians of Nicholas K. Boulad, a minor, from an order revoking letters of guardianship and granting the custody of the minor to his mother, Mrs. Mary Colombo.

It is to be noted at the outset that respondent, Mrs. Colombo, has failed to furnish this court with any brief or argument in support of the order of the trial judge, but on the contrary has stipulated that the appeal may be submitted on the record and on appellants’ opening brief.

The record discloses that Nicholas K. Boulad, a minor, was born on April 25, 1945; that in June of 1945, the mother, respondent, and the child’s father moved into the home of appellants, bringing the minor with them; that they remained there for four or five weeks and then left; that they left the minor with appellants, and he has been in their custody ever since the first part of August, 1945, with the exception of a period of five weeks.

During this period respondent visited her child only five or six times and stayed on each occasion from 15 to 30 minutes. She has never contributed anything to its support. Appellants, on the other hand, have treated the child as their own. On June 27, 1947, with the consent of respondent, appellants were appointed guardians of the minor and letters of guardianship were issued to them on June 30, 1947. On February [13720], 1948, respondent filed a petition to terminate the guardianship and the matter was heard on March 9, 1948, resulting in an order terminating the guardianship.

Appellants claim that the record fails to disclose any substantial evidence to sustain the trial court’s findings that,

(a) appellants were appointed guardians only temporarily,

(b) petitioner is a fit and proper person to have the custody of her child, and (c) respondent did not abandon her child.

This contention is tenable and is supported by the record.

(a) Respondent left the minor in appellants’ home in June, 1945, and the child remained there continuously with the exception of a five-week period in the fall of 1945, when he was taken to the home of his father and his paternal grandmother. At the end of the five-week period, the grandmother telephoned appellants and told them that she could not take care of the child and asked that they come and get him. One of the appellants testified that he never had any understanding with respondent that she could take her child at any time, and the reason for the guardianship proceedings was that he wanted to have some sense of security in the matter and he did not want any person to take the child from his wife and himself. In respondent’s consent to the appointment of appellants as guardians of her child, she stated that the child had been with appellants since he was four months old; that they had cared for him as they would their own child; and that it was for the best interest of the child that they be appointed his guardians.