Malkin v. Pine

351 Mass. 358 (1966) 220 N.E.2d 914

LEILA MALKIN
vs.
JOHN D. PINE & another, guardians.

Supreme Judicial Court of Massachusetts, Middlesex.

October 7, 1966. November 4, 1966.

Present: WILKINS, C.J., SPALDING, WHITTEMORE, CUTTER, KIRK, SPIEGEL, & REARDON, JJ.

Avram G. Hammer for the respondents.

Edward J. LeCam for the petitioner.

WHITTEMORE, J.

On petition of the mother of a minor child, Carla D. Pine, the Probate Court for Middlesex County by decree of May 27, 1965, revoked its earlier decree, dated September 13, 1963, appointing Carla's paternal grandparents as her guardians with custody. The grandparents have appealed.

We assume that the appellants as guardians have standing to appeal in the interest of their ward and thus to present for review the paramount issue of the child's welfare. See Merrill v. Berlin, 316 Mass. 87 (guardians prevailed on appeal from decree allowing adoption of wards by grandparents who would have all the rights of the deceased parents); Duclos v. Edwards, 344 Mass. 544 (decree removing guardian of children on petition of father, affirmed on guardian's appeal). See also M'Donald v. Morton, 1 Mass. 543 (ward who had been adjudged non compos could appeal from a decree refusing revocation of the guardianship); Ripley v. Brown, 218 Mass. 33, 35 (trustees of a charitable trust declared invalid could appeal). Compare Hirshson v. Gormley, 323 Mass. 504, 506-507 (grandparents whose application for guardianship was denied were not aggrieved persons); Ensign v. Faxon, 224 Mass. 145, 149-151 (guardian of an insane person had no standing to appeal from his discharge on the ground that the ward was no longer insane).

There is nothing in the appellants' contention that the judge failed to give adequate consideration to the effect on Carla of a change in custody. The entire matter was presented in statements of counsel. It appeared that in March, 1963, Carla had been allowed to come from Chicago to her grandparents in Massachusetts until her parents could adjust their marital affairs. The mother, in December, 1963, had obtained a divorce in Cook County, Illinois, and in 1964 had remarried. A good home, adequate earnings, and the new husband's willingness to support the child and assume a father's duties are shown in the report of material facts. "A statement from the Cook County Department of Public Aid was presented stating that they had investigated the petitioner and the petitioner appears to be a warm friendly person and a competent mother." This report "presented" to the judge was, of course, evidence of an appropriate investigation tending to show that the change would not be adverse to Carla's welfare. The decree appealed from shows that the judge gave it weight. The opinion of the grandparents and the statement of an event in 1961, shortly before Carla's birth, neither show nor suggest any error in his so doing. On the report of material facts, both the parent's right and the interest of the child support the decree. Ridgeway v. Cels, 350 Mass. 274, 281-282. Compare Wilkins v. Wilkins, 324 Mass. 261.

Decree affirmed.