In Re Estate of Patterson
J. Kent Robinson, Rolla, for respondent-appellant.
PREWITT, Judge.
Respondent petitioned the Probate Division of the Phelps County Circuit Court to be appointed guardian of the persons and of the estates of Yolanda Y. Patterson, then aged 5 years, and Teneille Y. Patterson, then aged 2 years. Appellant contested the appointments. After a hearing the trial court appointed respondent guardian of the estate and person of both children.
Respondent is the grandmother of the children and has physical custody of them in Phelps County. Her daughter, Cora Ford, was their mother. Respоndent has lived in Phelps County for at least twenty years. She was on vacation from her employment and was visiting Cora Ford and the children in Syracuse, New York on July 19, 1981, when Cora Ford was killed in an automobile accident. Cora Ford was not married at the time the children were conceived and born. Appellant contends that he is the father of the children.
Prior to thеir mother‘s death, the children had lived in Syracuse with her since their birth. Appellant did not live with them at the time of Cora Ford‘s death, but claims to have previously lived with Cora Ford and after their birth with the children. He resides in Syracuse. Respondent testified
Respondent‘s petition was filed slightly over three months after they came with her and they had lived with her over four months at the time of the hearing. The petition recites that one of the reasons for seeking the appointment is to enable the children to bring an action for the wrongful death of their mother.
Appellant asserts in his points relied on that the appointments were erroneous because under the Uniform Child Custody Jurisdiction Act,
The parties have also treated the appointments as guardian of the persons and the appointments as guardian of the estates of the minors together and as not being subject to any different procedures or standards. However, we feel that at least in this situation, the appointments as guardian of the persons must be treated separately from the appointments as guardian of the estates.
The two offices are “distinct” and different persons may be appointed to each office. See Maus, Probate Law and Practice, § 1731, p. 133 (1960);
As a nonresident of Missouri, appellant was not eligible to be appointed by a Missouri court as either a guardian of the person or a guardian of the estate of either child.
We first consider whether respondent should have been appointed as guardian of the estates of the children. Section 475.035.1, RSMo 1978, provides for the appointment of a guardian in the county
Assuming that he was entitled to notice, the notice appellant received was sufficient in a proceeding for the appointment of a guardian of the estate. Section 475.070, RSMo 1978, provides that notice of guardianship proceedings be given a parent as provided in
Respondent was the only person who had applied to be appointed guardian and the evidence indicated she was qualified. There was no contention otherwise. Appellant‘s evidence was all concerned with “custody” of the children and none of it related to who should manage their estates. Even if we assume that appellant qualifies as a “parent“, see
However, because the Uniform Child Custody Jurisdiction Act, at least as adopted in Missouri, applies to appointments for guardian of the person, it does not necessarily follow that because the appointment of respondent as the guardian of the estates of the minors was proper, that the trial court was correct in appointing respondent as guardian of their persons. Although in most respects we can give effect to both chapter 475 and that Act, where there is a conflict, we follow the later. When two acts apply to one subject, the rule is to give effect to both if possiblе, but if any of their provisions are repugnant the later act, even without any repealing clause, operates to the extent of the repugnancy to repeal the first. City of Kirkwood v. Allen, 399 S.W.2d 30, 34 (Mo. banc 1966).
We now discuss appellant‘s contention that he did not receive proper notice of the hearings as it pertains to the appointments of a guardian of the persons of the children. As earlier noted we determined that under chapter 475, RSMo 1978, the notice to appellant was sufficient. However, as the Uniform Child Custody Jurisdiction Act applies to appointments of guardians of the person and as
In her petition respondent alleged that the father of the children “is unknown although one Harry Patterson appears on each of the children‘s birth certificates as fаther.” Following the filing of the petition, the regular judge of the probate division2 set a hearing 28 days later and ordered that appellant receive notice of the hearing. He was served 23 days before the hearing. By written motion appellant sought unsuccessfully to delay the hearing. He did not file an answer.
Section 452.455.2, RSMo Supp. 1982, provides that “any parеnt whose parental rights have not been previously terminated... must be served ... and may within thirty days after the date of service ... file
Respondent contends that until appellant is “judicially determined to be the natural father of the children” he has no greater right than any other person and was not entitled to be treated as a party to these proceedings.
“Parent” as literally interpreted, refers to a natural father or mother, but in law is often limited to only designate a legitimate relationship between a mother, father, and their issue. See 67A C.J.S., p. 160-161. In State ex rel. Canfield v. Porterfield, 222 Mo.App. 553, 292 S.W. 85, 86-87 (1927) “parent” in a Missouri statute was held to only refer to a parent of a legitimate child.
In England it has been held that “parent” in an act of Parliament requiring a parеnt‘s consent to adoption does not include the father of an illegitimate child. “The reason is that the law of England has from time immemorial looked upon ... [an illegitimate child] ... as the child of no known body except its mother. The father is too uncertain a figure for the law to take any cognizance of him except that it will make him pay for the child‘s maintеnance if it can find out who he is.” Denning, Ld.J., Re M., [1955] 2 Q.B. 479 [1955] 3 Week LR 320, 51 A.L.R.2d 488, 490.
However, the trend of recent legislation and court decisions has been toward a more liberal use of the term where illegitimacy is involved and “parent” is often applied in speaking of those who beget an illegitimate child. 67A C.J.S., p. 161. See also 59 Am. Jur.2d, Parent and Child, § 2, p. 84; 31 Words and Phrases, “Parent“, p. 107. We believe that trend should be followed and appellant‘s rights to the children should not be foreclosed solely because he was not married to their mother.
Respondent consulted with appellant before bringing the children to Missouri and has received money from him for their support. He is shown as their father on each child‘s birth certificate. One of respondent‘s witnesses, Cоra Ford‘s cousin, who respondent employs as a baby sitter for the children while she works, testified that Cora Ford told her that appellant was the father of the children. He had been treated as their father and assumed, in part, responsibility for their support.
Whether the father of an illegitimate child is always entitled to a notice under
It may be in the best interest of the children that Missouri courts assume jurisdiction because the children and respondent have a significant connection with this state. Respondent has lived here over twenty years. The children live here and one of them is gоing to school here. There was available in Phelps County substantial evidence concerning the children‘s present care, protection, training and personal relationships. Compare Green v. Green, 87 Mich.App. 706, 276 N.W.2d 472, 474 (1978); Nelson v. District Court, 186 Colo. 381, 527 P.2d 811, 813-814 (1974).
It appears to us on this record that there may be a sufficient basis for the trial court to find that it has jurisdiction to appoint a guardian of the person of each child. However, as appellant did not receive the notice required before the appointment of a guardian of the person, he should be given an opportunity to litigate all issues pertaining to that appointment, so we do not at this time make a final determination that the trial сourt had jurisdiction to make that appointment. We do rule that there was jurisdiction to appoint a guardian of the estates of each child and that respondent was properly appointed to that capacity.
The portion of the order appointing respondent guardian of the estates of each child is affirmed and that pаrt of the order appointing respondent guardian of the persons of each child is reversed and the cause remanded to the trial court for further proceedings to determine if respondent should be appointed guardian of the persons of the children. Appellant is to have thirty days after the issuance of this court‘s mandate to file an answer, and the trial court is to thereafter hold a hearing on respondent‘s
MAUS, P.J., and HOGAN, J., concur.