This is аn appeal from an order appointing a guardian of the person of the respondent, Louise Elizabeth Kerr, a minor of thе age of eighteen years.
She is the daughter of Andrew L. and Leonora Kerr, who in September, 1923, were divorced. By the terms of the divorce decree the care and custody of respondent, then four years old, was awarded to her mother, but she was maintained and educated out of a monthly allowance paid by her father. Subsequently each parent married again, the mother having become Mrs. Wallace. For a considerable period prior to 1936 the relations between the mother and daughter were at timеs extremely unpleasant; at other times, as shown by certain letters and communications written by respondent to her mother, they werе on affectionate terms. In June, 1936, they went to New York on a visit, during which several violent quarrels took place between them. According to respondent’s testimony, her mother repeatedly called her vile names, accused her of gross misconduct, and of bеing a thief, struck her and otherwise abused and mistreated her. Finally respondent wired her father in San Francisco to send her allowance directly to her, which he did; and following a violent quarrel with her mother, as a result of which, so respondent claimed, her mother prеvented her from taking the train, she boarded an airplane and flew back to San Francisco, where she took up her residenсe with friends; and on January 11, 1937, being then past eighteen years of age, she filed a petition in the superior court for the appоintment of a guardian of her person, whom she nominated in the petition. Mrs. Wallace filed objections to the granting of respondеnt’s petition; and after a hearing in which both parents participated and gave testimony, the court announced that while there was no question about the fitness of respondent’s nominee to act as guardian, it believed that for reasons which it elaborated upon, it would be advisable to select someone else, *441 and that it would appoint Mrs. Mary Conway Kohler as such guardian. Immediately following such announcement respondent and her nominee gave their consent thereto, and on April 21, 1937, a formal order of аppointment was entered to that effect, from which Mrs. Wallace has taken this appeal.
The first point appellant urges for reversal of the order is that the court herein was without jurisdiction to hear or determine the guardianship proceeding instituted by rеspondent, her contention in this behalf being that where as here a decree of divorce is granted wherein provision is made for the custody of a minor child, the court in which such decree is rendered thereafter and at all times retains exclusive jurisdiction over the matter of the custody of said child. The casé of
Collins
v.
Superior Court,
Aрpellant’s second point is that the court erred in appointing Mrs. Kohler guardian without first having taken testimony as to her fitness and qualifications. It appears, however, that such testimony was wholly unnecessary for the reason that Mrs. Kohler was an attorney and an offiсer of the court, namely, a referee of the juvenile court, and her qualifications and fitness to act as such guardian were wеll *442 within the knowledge of the presiding judge. Moreover, at no time after the court indicated it would appoint Mrs. Kohler did appellаnt intimate that she was not a fit and proper person to be so appointed, nor did appellant at any time make any objection to the appointment on that ground or offer to produce any evidence with respect- thereto. In view of the foregoing circumstances, there is no ground upon which it may be held on appeal that the court abused its discretion in making such аppointment.
Finally, appellant contends that she was denied the opportunity of refuting the accusations made against her as to her unfitness to act as respondent’s custodian, or to produce witnesses to prove her fitness. The record shows, however, that the court’s finding that she was unfit was based largely upon facts disclosed by her own testimony, which are amply sufficient to sustain the trial сourt’s adverse finding on that issue; consequently any testimony she may have offered to show her fitness would only have added to the confliсt already existing. Moreover and in any event, it is the established law of this state that a child over fourteen years of age may nominаte his own guardian, and that such nominee, if approved by the court, must be appointed. (Prob. Code, sec. 1406, formerly sections 1748,1750, Code Civ. Proc.;
Guardianship of Kirkman,
There is nothing in any of the cases cited by appellant which in our opinion conflicts with the views hereinabove expressed.
The order appealed from is affirmed.
Tyler, P. J., and Cashin, J., concurred.