Lead Opinion
This is an appeal by Russell A. Campbell, hereinafter called petitioner, from a judgment of the district court of Hennepin county entered pursuant to findings and an order affirming an or-der of the probate court of that county denying his motion to vacate and set aside the appointment of Alfred T. Baker, a physiсian, as general guardian of the person and estate of petitioner’s minor daughter Marguerite M. Campbell.
During 1938, illness and financial reverses found their way into the Campbell home. Both parents became afflicted with tuberculosis. Mr. Campbell’s illness had reached such a stage in March 1938 that he was compelled to quit his employment. Until April 1939 he was confined for treatment at a Veterans Hospital. His wife was similarly afflicted and treated at a sanitarium, but for a lesser period of time. At any rate, over a period of some four months the children were deprived of the society of their parents and were taken care of at the homes of different people. During this time Marguerite had been in four different homes and had attended three different schools because of this situation. About Christmas of 1938, Mrs. Campbell had so far rеcovered as to be able to rejoin her children and reestablish the family relationship. Thereafter petitioner visited the home from time to time but did not reside there until after his discharge from the Veterans Hospital in April 1939. During the parents’ illness, aid had been extended by the Veterans Aid for Dependent Children, augmented by contributions from certain relatives, among others, Dr. Baker and his wife.
The Bakers are childless. Dr. Baker is a practicing physician and surgeon residing at Minneapolis, where he has lived since 1912. In the summer of 1939 the Bakers, accompanied by Mrs. Charles, who is Mrs. Campbell’s sister, and Mrs. Hulburd, who is Mrs. Campbell’s mother, made a trip to Seattle from Minneapolis and visited extensively with the Campbell family. Up to this point there is no dispute in the testimony. As to what is now to be related there is some dispute, found by both trial courts against petitioner, so we shall recite the facts in the light of the evidence found true by the triers of fact.
In the fall of 1939 Marguerite was enrolled as a resident in the Minneapolis schools. This fact was duly communicated to the Campbells. She has made good progress in her schoolwork and has become firmly attached to the Bakers. She has emphatically taken the position that she wants to be with them. Then, too, her testimony discloses that she was and is afraid of her father because he has a “terrible temper”; that he was harsh in his punishmеnt of his children and unkind to his wife; that on more than one occasion she had seen her father strike her mother; and that “many a time mother has had a black eye” caused by her father’s bad temper.
Marguerite was born December 26, 1926, and was past 15 when the case was heard below. She is now a young lady of 17.
From time tо time, commencing in January 1940, Mrs. Campbell wrote Mrs. Baker asking for Marguerite’s return. In the spring of 1941 the parents wrote Marguerite asking her to come back to Seattle; that if the Bakers did not send her back the father would come to Minneapolis to get her. Marguerite wrote her parents
“that it would be for the best interests of said minor to remain with her said guardian аnd the said Bakers in the City of Minneapolis, and to pursue her education in the schools of Minneapolis, Minnesota, rather than to go back with her parents to the City of Seattle and live as a member of their household in Seattle. That said Bakers have in all respects faithfully performed their said agreement with reference to said minor and are ready, able, and willing to carry the same out in the future.”
On appeal to the district court, after a full hearing de novo, the same result was reached. The record is now before us for final adjudication.
Our constitution, art. 6, § 7, provides that the “probate court shall have jurisdiction over * * * persons under guardianship.” As to who are proper subjects for guardianship,' the constitution is silent. However, by legislative enactments going back even to our territorial days, it is clear that our lawmakers have consistently declared, as a matter of public policy, that minors are proper subjects for guardianship. In conformity with long-established statutes and decision law, the legislature in adopting our- probate code, provided (Minn. St. 1941, § 525.54 [Mason St. 1940 Supp. § 8992-129]):
“The court may appoint one or two persons suitable and competent to discharge the trust as guardians of the person or estate or of both of any person who is a minor, * * * provided such person is a resident of the county.”
That Dr. Baker is a “suitable and competent” person to discharge the trust of guardianship is not questioned, nor is that a matter of doubt. So the only question remaining on this phase is whether Marguerite was a “resident” of Hennepin county at the time of his appointment. That she then was and continually had been physically present within the county over a period of practically two years is clearly shown. She was more than 14 years of age, and, with full knowledge and understanding of the import of guardianship and her own custody by virtue thereof, she deliberately chose to join in, and lent every effort towards, the accomplishment thereof. She came here with the full knowledge of her parents that she was to be in the Baker home as a member of the family. In the language of the trial judge, she came here to “live with the Bakers as their own child; that the Bakers agreed, and the father and mother of Marguerite M. consented, that they should and would provide Marguerite M. with a good education, furnish her with suitable and necessary clothing, medical and dental services
In State ex rel. Board of Christian Service v. School Board,
“* * * It [residence] differs from ‘domicile’ in that ‘residence simрly requires bodily presence as an inhabitant in a given place, while domicile requires bodily presence in that place and. also an intention to make it one’s domicile’ * * *.
“Ordinarily,” we said, “the domicile of an infant is, by law, the same as the father’s, if living. [Citing cases.] And if a guardian is appointed, the domicile remains within thе state of appointment. * * * Generally, the infant has no choice as to his domicile and has no legal power to change it. With respect to residence, the law is more liberal. Where that alone is involved, an infant can acquire one different from that of his domicile or the domicile of his father or guardian. [Citing authorities.]”
We there concluded (
In Restatement, Conflict of Laws, we find this general rule on the subject of Jurisdiction of Courts, p. 116, § 78:
“A state can exercise through its courts jurisdiction over an individual voluntarily within its territory whether he is permanently or only temporarily there.”
And that, p. 121, § 81:
“A state can exercise through its courts jurisdiction over an individual who consents to such exercise of jurisdiction.”
We conclude that Marguerite was a “resident” of Hennepin county when the appointment of Dr. Baker was made, and that the court had jurisdiction over her person and the subjеct matter of her guardianship.
“The principles of law involved are so well settled that they hardly bear repetition. All other things being equal, the natural parents have the paramount right to the care and custody of a child. [Citing many cases.] That right is not absolute, however, and must yield to thе child’s welfare. If its best interests will" be served by granting custody to someone else that will be done. [Citing cases.]”
State ex rel. Feeley v. Williams,
“is now approaching the threshold of womanhood and, from the standpoint of character development, is аt a formative age and place in life. She is the only child in respondents’ home. She is happy. She is contented. She wishes to stay where she is. She is surrounded by mutual affection and subjected to proper training. She is of the age and capacity to form a rational judgment, which receives respectful and serious consideration by us. * * * Were we to subject her to the desired change upon a stern and arbitrary*121 legal reason, she would doubtless feel that she had been subjected to injustice and unnecessary harshness, which might leave scars upon her disposition or character. Such compulsion might tend to lead to friction, unhappiness and unfortunate circumstances.”
Cf. Borg v. Anderson, 73 N. D. —,
True, Marguerite’s claim that she fears her father and thinks he is harsh and unkind to her mother may be imaginary, but, even so (
Minn. St. 1941, § 525.56 (Mason St. 1940 Supp. § 8992-135), provides:
“A guаrdian shall be subject to the control and direction of the court at all times and in all things. A general guardian of the person shall have charge of the person of the ward.”
Under our decisions, such guardian virtually occupies the position of a parent. 3 Dunnell, Dig. & Supp. § § 4107b and 4108; Townsend v. Kendall,
Judgment affirmed.
Concurrence Opinion
(concurring specially).
A careful examination of the record convinces me that the parents of Marguerite Madelon Campbell have treated her with the maximum of love and affection normally extended by parents toward childrеn. It is true that in the past misfortune affected the lives of the parents to some extent, and that for four months in 1938 it was necessary for the minor and other children of the couple to live away from home. The claims of the minor otherwise as to mistreatment by her parents seem without foundation and more or less figments of her imagination. The record discloses a noticeable tendency on her part to exaggerate her claims and dramatize her situation.
It is true, they are in a position to offer more financial and material advantages than the parents, but this in itself does not gоvern the determination of the question here involved. I am convinced that there is no legal basis for the position taken by them here and no legal or moral grounds for depriving the parents of the custody of their daughter. However, the fact that Marguerite, now 17 years old, in her own mind is convinced that the comforts and luxuries she now enjoys are of greater importance than the love and affection of her parents and the love, comradeship, and association of her brother and sisters convinces me that no good would result in now ordering her return to her parents. For that reason, I concur in the majority opinion.