Estate of Marmaduke

On March 17, 1931, respondent was appointed guardian of the person and estate of Elayne Marmaduke, then aged about nine years. On September 16, 1931, J. Morgan Marmaduke, father of said minor (the mother is dead) filed a petition to have such appointment vacated and revoked and to have the custody of said child awarded to him. The superior court held against him and we are considering his appeal. Some legal points are presented, but they all merge into the question of fact upon which the trial was had, to wit: Is appellant, under all of the circumstances obtaining, a fit and proper person to have the custody of the child? Appellant in effect concedes that he must show present conditions *Page 451 to be so much better than those found in the guardianship proceeding as to justify a contrary holding. We shall briefly sketch the court's findings: In July, 1928, appellant was placed on probation for issuing fictitious checks. One of the probation requirements was that appellant remain out of California for ten years and he went to Kansas City, Missouri, taking Elayne with him. Parenthetically we here desire to express our doubts as to the legal rights, and our emphatic condemnation of…

In denying petition for rehearing in this proceeding we think it proper to respond briefly to points raised by petitioner. Petitioner resides in Oklahoma and very shortly before the hearing on his petition to revoke the appointment of the guardian he secured an Oklahoma decree in accordance with finding II of that court, which is as follows: "That Morgan Marmaduke, the petitioner herein, is a fit and competent person, and therefore as the sole parent of said minor is entitled to be appointed the guardian of the person and estate of said minor in this state." [2] There is no question here of giving full faith and credence to a sister state's court decree. The Oklahoma court never had jurisdiction of the person of the minor and the very words of the finding show that it recognized this. *Page 453 A finding by the Oklahoma court upon the evidence submitted to it is not binding upon a California court in any proceeding of which it has jurisdiction. [3] Our opinion plainly states the dates when the acts occurred that influenced the court in its determination that the father was not a fit and proper person to be appointed guardian of the minor. We understood the stipulation made in the…