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In re Wilmot's Guardianship

Supreme Court of Arizona

October 20, 1952

In re WILMOT'S GUARDIANSHIP.
v.
WILMOT McGOWAN

Affirmed.

McQuatters & Stevenson, of Flagstaff, for appellant.

No appearance for appellee.

Udall, Chief Justice. Stanford, De Concini, and La Prade, JJ., concurring. Note: Justice PHELPS took no part in the consideration or determination of this appeal.

OPINION

Udall, Chief Justice.

[74 Ariz. 345] Virginia Elizabeth McGowan has appealed from an order dated April 14, 1951, dismissing her petition for letters of guardianship of her daughter, Juanita Elizabeth Wilmot, a minor.

The appellant and Dean Kirby Wilmot, appellee, contracted marriage in the state of Tennessee and the above-named minor was the sole issue of this marriage. Marital troubles having developed, the wife, on November 12, 1948, procured an uncontested divorce in the Circuit Court of Shelby County, Tennessee. The decree awarded the appellant the custody of said five-year-old minor, with the father being required to furnish support in the sum of $ 20 per month.

During the 29-month period between the divorce and the entry of the order herein appealed from, the parents carried on a bitter legal fight in the courts of both Tennessee and Arizona over the custody of their daughter. Both of the parties remarried in the interim. No property rights are involved. At the time of the hearing now in question appellee and his present wife maintained their residence in Memphis, Tennessee. The appellant, who was then pregnant, was living with the said minor, her husband and the first child of this, her second marriage, at Bridgeport, Yavapai county, Arizona.

It would serve no useful purpose to recite the various hearings had and the modifications and remodifications of the decree of the Tennessee court, nor of the several orders obtained in the superior court of Yavapai county, Arizona. Only let it be said that they resulted in the custody of the minor being shifted back and forth between the parents. In the various hearings the minor was usually present and the parties were either present in person or represented by counsel, hence neither party now challenges the jurisdiction of either court to enter its orders in the matter. Nor is there any conflict arising out of the exercise of this dual jurisdiction. Evidently the superior court of Yavapai county considered the Circuit Court of Tennessee, in the proceedings for modification of the divorce

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decree filed therein, was the proper tribunal for determining rights of the parties hereto as to the custody of said child.

At the opening of the hearing on petition for guardianship, counsel for appellant frankly stated:

"* * * The purpose of the proceedings is to have her (the mother) appointed guardian between now and the time she can get to Tennessee and [74 Ariz. 346] have this hearing. The child at this time ...

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