*1 In Bank. Oct. F. No. 18876. 1953.] [S. etc., Appellant, v. CITY Minor, BURGE, E. LYNDLE Respondent. FRANCISCO, AND OF SAN COUNTY *3 Millington, O’Sullivan, Dell’Ergo, Mor- F. Weeks & John rissey Appellant. for Clayton Horn, Holm, City Attorney, R. W.
Dion City Attorney, Respondent. for Deputy TRAYNOR, Lyndle J. Plaintiff Burge, minor, by E. bis guardian litem, brought father ad against this action de- city county fendant ages of San Francisco to recover dam- personal injuries by him suffered while he was a passenger street-railway operated on a car by defendant. pleading special
Defendant filed an answer as a defense that plaintiff’s claim had previously compromised by his mother in proceeding under section 1431 of the Probate Code. The issue so separately raised was tried pursuant section 597 of the Code of Civil Procedure. The court con- cluded that the order approving was not subject to collateral attack judgment and entered in favor appeals. of defendant. Plaintiff He concedes that the at- *4 tack is collateral but contends that the juris- court had no approve diction to compromise the on grounds the the that petition for approval compromise of the ap- and the order proving fatally it were failing defective in jurisdic- to recite tional facts and that even if proved these facts could be present the proceeding the record therein discloses that his mother was compromise without We claim.
have concluded that this contention cannot sustained and judgment that the must therefore be affirmed. years old His was at the time of the accident.
Plaintiff previously mother had been divorced. The inter- father and provided “рlaintiff locutory and de- decree [father] joint have and control of the said fendant [mother] personal custody children, defendant, in the and minor with privilege plaintiff has the and to visit said minor the them out at all reasonable times.” and take Plain- children of the minor children mentioned in tiff was one the decree his mother after the divorce. and lived with leading compromise negotiations
All to the were conducted mother plaintiff’s and defendant. Plaintiff’s father between the accident had occurred and that a claim had knew that participate compromise filed, pro- he did not the but compromise ceedings or become aware of the until it after agreed made. Plaintiff’s mother to release his claim had been payment against upon filed with $500. defendant the She petition superior seeking approval court a verified compromise, approved. paid it was Defendant the $500 plaintiff’s present release. executed a The action brought plaintiff majority. was before reached approving com- petition1 and the order
The verified footnotes. Plaintiff contends forth in the promise2 are set compromise, approve failed to outset that at the court “dis- approved grounds recites that it a on order Burge against” defend- minor puted claim for that Iva plaintiff against claim of such a claim is ant and that any was nothing to show there There is defendant. compromise of judicial proceeding approve a for a need plaintiff’s mother have had any of her own that claim “Applica- proceeding entitled against was defendant. compromise approving the Burge for an order tion of Iva by minor, Lyndle Burge.” The veri- disputed entered claim compromise minor ’s was the petition fied recited that it sought, approval was and the order recited claim for which filing petition upon reading of that that it was compromise that the offer was rea- appeared to the court slipshod description Although made a the order sonable. being compromised, when it is read with of the claim that was approved can be that the court petition, there no doubt against plaintiff’s defendant. claim principal contention that the court lacked plaintiff’s It Ordinarily when jurisdiction his claim. general jurisdiction is judgment order or a of a court of an *5 attacked, only evidence collaterally considered Burge (1) respectfully petitioner petition shows: That of Iva 1“The Lyndle age Burge, minor, fourteen, a and that both is the mother of petitioner City County and of San and the minor are residents Francisco. “ against (2) money City disputed That had claim for minor and injuries by County sustained minor when an acci- of San Francisco August 29, 1945, at Duboee and Fillmore Streets dent occurred on in- operated volving #22, by City ‘N’ and a collision of Streetcars and County of San Francisco. “ (3) City County pay to That said and of San Francisco offered compromise ($500.00) Dollars, claim the sum of of said Five Hundred compromise, opinion petitioner which, in is a reasonable and that of compromise said minor if is it will be the best interests of said accepted by this Court. , prays approve compromise petitioner that the Court said "Wherefore, money paid filing any that said to her without the of and direct bond. Burge Iva Petitioner" Burge filing petition 2"Upon reading and the verified for an Iva of disputed compromise approving claim for minor that Iva order Burge City County Francisco, against of it ap has San and compromise reasonable, pearing Court that the offer is to the Hereby hereby hereby Ordered that said be and is "It Is City County Frаncisco, approved, directed to Burge, minor, is and that the said of San pay ($500.00) the sum of Five Iva Hundred Dollars filing any without the a of bond."
613 in determining judgment whether the order or is void is proceeding record in which it was entered. If the jurisdictional record is fact, silent as to the existence of a presumed. that fact will be (Guardianship Hall, 31 Cal.2d of 157, ; Fargo 164 P.2d City Wells & Co. v. San [187 396] of Francisco, 37, 25 40 ; ) Thompson Cal.2d P.2d [152 625] cf. Cook, 564, 569, 20 Cal.2d 573 P.2d It 909]. [127 held, however, proceeding wholly statutory a is law, court, unknown to the common ordi narily general jurisdiction, onе of special juris is a court of proceeding, diction for jurisdictional and if facts do appear not of record in such proceeding, pre there is no sumption (Estate regularity. of Sharon, 447, 179 Cal. ; 457-458 P. 49 C.J.S., Judgments, p. 840; [177 Es 283] cf. Kay, tate 30 1].) Cal.2d 220-221 P.2d If [181 presumption applicable, however, failure of the record in proceeding such a jurisdictional recite a fact judgment “does void, not make the for extrinsic evidence is prove admissible fact, except such where some statute makes the record the рroof.” (Estate exclusive mode of Sharon, supra, p. 179 458.) Cal. at general is the rule that statutory authority without It parent, such, cannot or release his child’s (See cause of action. 500; 103 A.L.R. 629.) Am.Jur. held, has been however, proceedings under section It 1431 are presumption entitled to the of regularity. (Rico v. Nasser Realty Co., Bros. Cal.App.2d 878, 882 861].) Plaintiff, relying on the case, supra, Sharon contends that the Rico case was erroneously decided. Defendant, on hand, the other contends that Fargo the Hall cases, аnd Wells supra, are controlling. is unnecessary, It however, to resolve these jurisdictional contentions if the facts are established *6 the extrinsic evidence. 1431, section to establish the of the mother Under disputed compromise claim, shown, a minor’s must be dead, (1)
if the is that the father father not and mother are living separate apart; (2) or mother the has the care or cus tody minor; (3) compromise approval of the the has the of superior county the court of the where the resides; minor (4) petitiоn writing seeking and a in approval verified of the compromise been filed with such court. hearing petition
Plaintiff contends that a on the is also required. present Plaintiff and his mother in testified the proceeding present that neither was when court the order testimony no compromise made and that was
approving the injuries the fairness his or relating to the extent of was taken mo granted defendant’s compromise. The trial court of the Al appears. testimony. No error this strike tion to hear a ordinarily practice3 to hold be better though it would (Rico require it. testimony, the statute does ing and take 881.) 878, Cal.App.2d Realty Co., supra, 58 v. Nasser Bros. Cal.App.2d 652 Berry Chaplin, 74 relies on Plaintiff however, proceed contrary There, the 442], for a rule. The court 196a of the Civil Code. ing was under section if 1431 were deemed point out section careful to was 2 Arm (see by child under section 196a apply to actions a attempt Law, p. 1084), had been Family no strong, California thereunder, the claim since the child’s made to approvаl the verified claim for of parent never filed a had (74 Cal.App.2d at required by 1431. compromise as section hearing intimated a would p. Insofar the court 660.) 1431, proceeding under section necessary had the case unnecessary to the decision the the statement was Realty Co., supra. contrary v. Nasser Bros. and to Rico approving com- petition and the order The verified (3) (4) were requirements and above promise disclose that (1) the father and mother were met, but do not disclose (2) apart the mother had the care living separate or or that evidence, however, plaintiff. of Extrinsic estab- and mother were divorced and were lished that the father compromise. controlling apart of living the time at remains, therefore, proved is whether it was also question that custody” plain- had that the mother then the “care or question must first determine what tiff. To answer that we custody.” Legislature “care or meant the terms 1939, section 1431 of provided Until the Probate Code disputed claim of minor could cоmpromised by only “his father is dead or has deserted or aban- (33 14, 28(c) Superior Court Eules Cal.2d effective Janu 3Rule case) provides: ary “Upon behalf of 1949, this which was after person petition, compromising hearing of the the claim on incompetent incompetent and the minor or shall the minor good dispenses unless for cause the court with such inbe attendance may require presence testimony appearance. personal The court examining relating attending physician, as well as other evidence claim, injury, care, the nature extent the merits parties hospitalization.” Attendance of the and the treatment taking *7 today mandatory is even and a can of evidence testimony attendance, if, in such dis still cretion of effected without good taking judge, cause is shown. As to the trial “may” permissive. testimony, is of the word course wording under of the doned him.” It was held that this when compromise a claim section the mother could not parents divorced, the mother had were (In (1937), 24 re Parrino custody of the minor.
awarded 549].) decision in the Parrino Cal.App.2d 128 The prompted Legislature case in 1939 to reexamine section 1431 of the Probate Code. It amended provide the section to against that a claim of a minor person a third may be com promised by “his if father, or his father is dead or the living separate of said minor are apart or and his custody mother then has care or of said minor then his only mother.”4 The amendment not met the situation of the authority Parrino case but extended the mother’s in other respеcts. problem The Parrino case could have been bymet simply adding phrase to the old the words “or other custody Instead, reasons5 mother has of him.”
Legislature complete new*phrase. substituted The language phrase only of the new covers not broad a case of any desertion or abandonment but case where the father and living separate apart,6 are whether the reason desertion, abandonment, agreement parties therefor be Furthermore, by using “custody” or divorce. the wоrd Legislature if the mother made clear that and father living separate apart, has are the mother custody, minor, if whether she she has custody by virtue of the father’s abandonment of his custody, to take
family, inability or refusal virtue awarding custody. her of a court order joint custody
An award of with the not, father would give however, be sufficient to the mother authority to com though living Even promise. apart, are both en custody unless one is unable titled or refuses to take custody family or has abandoned his or her Code, (Civ. 197), § sole or unless the child has been awarded to 4A similar amendment was made 1939 to section 376 of the Code Procedure, (Cf. Espinosa of Civil but was removed 1949. v. Haslam (1935), Cal.App.2d 479].) 213 [47 P.2d Code, 5Under section 197 of the Civil the mother is entitled to family, the father dead or has abandoned his or is unable or refuses custody. to take language probably suggested by Code, 6This was Civil section ‘‘ provides: father, such, which husband superior has no regard mother, care, to those of the wife and custody, education, to the marriage, and control of the сhildren of the while such husband and wife apart separate live from each other."
616 Cal.App. 567, 574 (Watkins Clemmer,
one of them. awards decree that 303].) A divorce custody as it was right to joint custody leaves the parents gives together and they living marriage when were during the divorce. before the he or she had greater than neither a com means 1431 therefore in section Custody as used custody. plete exclusive “custody” only word Legislature used Had the be no custody” there could “care of the words instead authority to com the mothеr’s meant to limit doubt that it meant to custody. Had it has in which she promise to cases au mother’s custody condition to the both care and make “and” have used the word compromise it would thority to “care of the words “or.”7 The addition of the word instead legislative purpose a clear therefore to indicate or” seems has in which she authority to cases limit the mother’s not to custody. ’ ‘1 ’ suggested that the words care or were added It has been already custody only for has not to statute which cases court, adjudicated, because of the difficult to relieve been legal questions may involved, that the neces of factual and having mother has sity of to determine whether or not the necessary In custody of the minor. such cases it is estab minor, if the only lish mother has care of the but that the already has custody adjudicated, and the mother has compro custody, she has no not been awarded mise, though she the care of the minor. even Under if his interpretation, this even the father has not abandoned willing family and is ablе and and the mother take custody, not therefore she does have nevertheless com promise if has the of the minor. If she she care the reason custody, however, previous adjudication does not have is a custody, of she cannot she has the minor. Thus in “care” care some cases would be con trolling, it would be immaterial mother did not “custody” of the minor. In other have cases would controlling, immaterial it would be the mother minor. had “care” legislative history Assembly 1082, amending 7"The Bill No. section deliberately indicates the statute was written in the
disjunctive. introduced, provided As bill the mother could com ‘ ‘ promise a claim of a minor father dead or the of said living separate apart custody.” and his child are then has finally passed provided, bill ‘‘if his father is dead or the living separate apart of said minor are and his mother than has custody.” (Changes by italics.) care or indicated
617 limiting statute, however,
The no more admits of limiting “care” to some of “cus cases care than it does of tody” custody. may actually some cases of The to child be by stranger taken care of in an institution or or relative and yet custody it, including right the mother have of to care, by family its virtue of the father’s of his abandonment custody. inability or his or refusal to In take such a case right compromise, the mother would have the Leg to since the “custody” islature did not limit to derived from a nothing court order. There is in the statute to indicate that “custody” meaning, has a double in in cases which it is
necessary to establish before a can be approved interpreted is to be meaning custody as however derived, purpose but for the rendering of “care or” mean ingless, interpreted it is meaning custody to be as derived from a court order when there is such an order. Had the Legislature give meant “care” “custody” to either alter meanings native or to controlling make either in some cases others, and not in placed it would have said so. It these words in the by statute unmodified other words suggest that would they equal were not of force or applied were not to be disjunctive in all liberty cases. We are not at to re expand strict and application at will the of these words or to meanings seek hidden accomplish purpose them to does appear not on the face of the statute from legis its history. lative Plaintiff contends that custody” “care or mean same thing and Legislature therefore give did not to a minor’s claim in cases ‘ ’’ which she does not custody. have or, words care how ever, were deliberately added, regarded and cannot super fluous, if a reasоnable give construction thereof will effect to them preserve all the other words of the statute.
Custody parental rights embraces the sum of with respect rearing child, including of a its care. It in right cludes the earnings (Civ. the child’s services and Code, 197) and the to direct his activities and make § health, education, regarding control, decisions his care and religion. (Lerner Court, Superior 38 Cal.2d 681 ; Armstrong, see Family Law, California 321] p. 954.) rights These are exercised both in an (Civ. Code, 197) undivided home and differences between § ordinarily them are resolved home at without necessity When the are invoking tbe aid of a court. apt to apart, however, there are living separate any opinion respect with frequent differences
only frequent custody, resort to courts involved in but the matters *10 may conclude a court In such cases for their settlement. regard due for the of the child and the best interests that require other be parents that one or the interests may that It conclude complete of the child. given unjust, unable like Solomon would be and such action may sum of custodial child, it carve out the carve the parent. by Thus rights to be exercised each rights, certain to award practice in divorce cases for the court it is common parents “physical cus custody” one or both and “legal right with or without the of visitation tody” parent to one custody may physical or be awarded parent, other in the usually relative. Decisions made person, a to a third final, necessarily rights are not awarded exercise of the subject (Civ. Code, to mоdification. are the court’s orders 334], Cooney Cooney, 25 205 138; Cal.2d § cited.) cases and practice in mind Legislature this had We believe the custody.” By “custody,” words “care or used the when it rights in custody or involved cus complete all the it meant commonly been called By it meant what tody. “care” rights in custody” involved or the custodial “physical Legislature was The control of the child. physical care may fathers and mothers many cases also aware pro no divorce other have been living apart thеre where custody. may It be un adjudicating ceedings he whether or not is or uncertain the father known where Armstrong, 2 custody. (See rights to Cali his has forfeited cases, In if seq.) such Law, p. et Family fornia necessary there child, it is not the care mother has complete she has his judicial determination also be separate or parents living are Thus, custody. physical custody of the care or mother has apart, and the may or claims even she may his child, she custody. complete have not also living apart present case, the were In the de divorce mother. Under the lived with his the child “joint custody and control” but parents had cree the custody.” There can no doubt “personal had custody gave physical her personal the award child, she had Having the care of the child. and care of the authority under section 1431 of the Probate Code to com- promise question. the claim judgment is affirmed.
Gibson, J., Shenk, J., Edmonds, J., C. Schauer, J., and Spence, J., concurred.
CARTER, J. I dissent. At the time arose, this matter section 1431 of the Probate provided, part, Code that when a minor has disputed claim for damages father, “his or if his father is dead living of said separate apart minor are *11 his mother then custody has care or of said minor then his mother, shall right have the compromise, to or execute a not (Emphasis added.) covenant to sue. . .”.
Although it appear did in petition the mother’s approval of the of the in claim, settlement minor’s or the court’s order of approval, dead, that the father was or that the parents living child’s separаte apart, were or or that she the custody had care or child, of extrinsic the evidence parents showed that the by were divorced and that court decree, they given joint legal custody were “personal” with custody in the mother.
A majority of this
has determined
court
the words
custody”
“care or
Legislature
give
were intended
the
to
authority
disputed
the mother
to
a
claim if she
the
custody
had
care of the child whether or not she had
of
him. “The addition of the words ‘care or’ seems therefore
legislative purpose
to indicate a clear
not to limit the mother’s
authority
custody.”
to cases in which
holding,
she has
This
course,
of
nullity
awarding
makes a
of
joint
the court order
custody
physical,
personal,
to both
with
custody
or
separated,
one of
divorced, parents,
them. With
it is
impossible
personal custody
for both to have
of the child—
since,
pointed
majority
one must have it
opinion,
as
out
the
the court cannot
. .
“like Solomon .
carve the child.” We
(Lerner
Superior
have held
Court,
father the mother had yet it held that because compromise and to authority. care, did have the in her she person of the child living are out, when pointed As I have heretofore be with one of the child must separate apart, person custody gives joint giving them other the decree or the but before had control than either greater neither divorce. opinion that the use of the words “care
I am of the custody” by Legislature was intended to take care giving order where there was no court situation or where the mother had the care of one, both, parents father had abandoned or deserted child because the in- family his whereabouts were unknown. Under majority, mother, having physical terpretation child, could a claim for custody and care of the legal had been awarded him sole week, child for a if she had the care of the father or even example, custody in father. For end, with sole or a week custody, how- not have “If the reason she does it is said adjudication custody, she cannot com- ever, previous is a *12 the minor. Thus has the care of prоmise even she controlling, and it would would be in some cases ‘care’ custody of the not have mother did immaterial controlling, and ‘custody’ would be In other cases minor. had ‘care’ of the the mother would be immaterial it formal has been no appears me that if there minor.” It parent custody, and one adjudication of the care of the it, minor, the other has abandoned is a because matter petition or, for easily approval; on the other established formally adjudicated, hand, custody has that matter parent custody, If legal one had also be established. child, temporary had the care and the other one hardly having temporary care would be the one authorized to might far-reaching which have a compromise a claim effect interpretation, It is said that under this future. on child’s even if separated are the father has not aban- if the child, ready and is able to take but doned adjudicated mother, having to the custody has not been she child, may compromise his claim. the matter Since care of living separate apart in the appear should could, (Prob. Code, 1431), approval the court petition § require settlement, the father’s consent approving before parent greater thereto since neither has a than the other. “custody”
The words “care” and were used in the dis- junctive to take care of two different situations and to inter- pret I they interpreted them as think should give would effect nullity to both words and would not make a out of a awarding court order one, both, parents. As the majority interprets them, “custody” the word nothing means if the mother has the “care” of the minor.
Since seems clear to me that the mother had no minor, the claim of the I would reverse the judgment. In No. 5483. Bank. Oct.
[Crim. 1953.] PEOPLE, Respondent, ORTEGA, THE v. FLORENTINO
Appellant. *13 Ellery Cuff, Defender, E. Public and Noel Martin, B. Deputy Defender, for Appellant. Public Brown, Attorney
Edmund G. General, Miller, and Elizabeth Deputy Attorney General, for Respondent.
EDMONDS, court, sitting J. The trial jury, without a Ortega guilty found Florentino of murder in degree the first and of three of robbery, counts and concluded that he was