In re Brown's Children , 7 Alaska 411 ( 1926 )

REED, District Judge.

By the decree in the divorce proceedings between Anna Brown and Bruce Brown (cause No. 2487-A) in this court, the court, in awarding the custody of the children to the mother, Anna Meyer Brown, especially retained jurisdiction to amend the award on proper showing. This retention of jurisdiction is authorized by section 1305 of the Compiled Raws of Alaska of 1913, which provides for modification of a decree as to custody of children, as well as to other matters, on motion filed in the original action.

I am of the opinion that the better procedure would have been to set up the matters alleged in the petition in the original action, instead of bringing an original petition, which is in the nature of a collateral proceeding to the original action.

However I will consider the petition and the facts alleged therein as if it were filed in that action. The proceedings in the commissioner’s and probate court of Haines precinct would, at first glance, tend to complicate the situation; but, as this court had retained jurisdiction over the custody of the children, any action to divest this court of that jurisdiction over the children would, in my opinion, be void, and could not in any way divest the court of awarding the custody of the children to a proper person.

It appears that the proceedings in the probate court were entirely ex parte, and without any notice whatever to the surviving parent of the children. Section 1719, Compiled Laws 1913, provides that, whenever it becomes the duty of the commissioner to appoint a guardian for a minor, the relatives of the minor shall in all cases be appointed; the nearest relative having precedence. Undoubtedly, under this section, notice should have been given to the father of the children of the application for guardianship before the commissioner could appoint a guardian. In other words, the commissioner should have considered his claims before appointing any guardian, and, having failed to do so, the appointment made by the probate court at Haines is of no effect, and should not be considered.

Considering the merits of the petition, I am satisfied that the prayer of the petitioner should be granted. The testimony is that the father is a fit and proper person to have the care and custody of the children; this testimony is overwhelming, and is in no way denied. He is the nearest relative of the children, and the death of the mother, who was appointed guardian in the divorce decree, so changed the status of the parties that the court is warranted in revising the original decree. It, is the welfare of the children which is to be considered by the court; and I am of the opinion that the welfare of the children will be best served by awarding their care and custody to the father. The grandmother of the children is in poor health, and her condition is such that I am inclined to think it would be imposing a great and almost impossible burden on her to give her the care and custody of these children.

It is therefore ordered that the care, custody, and control of the children, Richard Bruce Brown and June Roberta Brown, be awarded to their father, Bruce Brown, and that the decree of this court in cause No. 2487 — A, Anna Brown v. Bruce Brown, be modified accordingly; the court, however, reserving jurisdiction to modify this order on good cause shown.