Markham v. Williams

[509]Opinion

EPSTEIN, J.* This is an appeal from a denial of a joinder motion in a marriage dissolution. The motion was presented by the mother and brother of the petitioning spouse (the wife) seeking custody and visitation rights with respect to the children of the marriage. The appeal lies. (County of Alameda v. Carleson (1971) 5 Cal.3d 730, 736 [97 Cal.Rptr. 385, 488 P.2d 953]; In re Marriage of Meier (1975) 51 Cal. App.3d 120, 122, fn. 1 [123 Cal.Rptr. 822].) We have concluded that the order was proper, and we affirm.

Procedural History

Terry Jane Williams (petitioner) filed a petition seeking dissolution of her marriage to Clayton Williams (respondent) in July 1978. She sought custody of the two minor children of the marriage, spousal support and child support. In her declaration under uniform custody of minors act, she declared that no one other than herself and her husband claimed any visitation or custody right with respect to the children. The court issued a pendente lite order awarding custody to petitioner. The father’s response, filed a few days later, also asked that custody of the children be awarded to petitioner, but asked for reasonable visitation rights. He too, declared that no one other than himself and his wife claimed any custody or visitation rights with respect to the children.

Declarations filed with the court by the parties to this appeal establish that petitioner became critically ill in December 1978, and that she entered a hospital, became comatose and was surviving by means of a life support system. Based on these changed circumstances, respondent petitioned the court, on February 6, 1979, for an order transferring custody to himself. On the same day, petitioner’s mother and brother (claimants) noticed a motion to be joined in the dissolution proceedings. They alleged an “active interest in the childrens’ welfare” and claimed custody and visitation rights over the children based on allegations that respondent father was unfit.

Two days later, on February 8, 1979, petitioner died. On February 27, 1979, the court granted custody to respondent, without prejudice to claimants’ petition. In subsequent papers, respondent sought dismissal of the proceeding on the grounds of petitioner’s death: On May 1, 1979, [510]