Goldmann, Collester and Mintz. The opinion of the court was delivered by Goldmann, P.J.A.D.
John J. Moran, as caveator, appeals from a County Court, Probate Division, judgment appointing Frieda L. Newberry guardian of the person and property of infant Sean Moran. John is Sean's paternal uncle; Frieda is his maternal grandmother. The circumstances that led up to this case were tragic.
Sean, then about two years old, was living with his parents, Paul and Patricia Moran, in Hollywood, Florida, when, on January 1, 1970, the father shot and killed the mother and then shot himself, dying the next day after unsuccessful surgery. Grandmother Frieda, then 46, and her third husband Harold Newberry, then 49, were visiting with the Morans at the time. After the shooting Frieda phoned the paternal grandmother, Marie Moran, in Ohio and told her what had happened. Marie said she could not come to Florida. After Paul died, Frieda again spoke to Marie who told her to make funeral arrangements; Frieda later got a call from an Ohio funeral home to ship Paul's body there.
Frieda testified that at the time in question she had talked over the phone from Florida to three or four of the Moran brothers and sisters in Ohio, but none of them came to Florida. Frieda told Marie and the Moran kindred that she was going to take the child to New Jersey. There was no objection. Frieda left Florida with Sean on January 6 and came to Cinnaminson, N.J., where she resided until recently. (Following the grant of guardianship to her, she and her husband, together with Sean, moved to Birmingham, Alabama.)
Frieda had her Florida attorney apply to the Florida court for guardianship of Sean, but was unsuccessful because he was told that since Frieda resided in New Jersey, the application should be made in this State.
Frieda subsequently filed a complaint with the Burlington County Surrogate for guardianship of Sean's person and property. Notice was given Marie, the paternal grandmother. John Moran filed a caveat against the grant of guardianship, with the result that an order issued directing the parties in interest to show cause before the Burlington County Court why letters of guardianship should not issue to Frieda. Shortly thereafter Marie, the paternal grandmother, waived any right she might have to guardianship, and prayed that the application of her son John, Sean's natural uncle, be approved. Frieda and her husband, as well as John and his wife, testified at the plenary hearing.
On this appeal John J. Moran claims that Sean was domiciled in Florida; Florida law should therefore be applied, the Burlington County Court should have refused jurisdiction, and he be qualified as guardian by virtue of his being Sean's next-of-kin.
Frieda contends that the appeal should be dismissed for mootness or for practical reasons of comity because Frieda and Sean are no longer domiciled or resident in New Jersey. We are not attracted to this argument. The judgment here under review was handed down by a court which had jurisdiction over the parties and the res , Sean then being present and resident in New Jersey.
We find equally unpersuasive John's argument that the County Court should have refused jurisdiction because Sean was a domiciliary of Florida at the time the matter was heard and the judgment entered. 1 Restatement, Conflict of Laws 2d, § 22, comment (i) (1971), states that where a child's parents are dead and no guardian of his person has been appointed, the child should acquire a domicile at the home of a grandparent or other person who stands in loco parentis to him and with whom he lives -- and the cases so hold.
Absent some compelling reason to the contrary, the child's domicil should be in the place to which he is most closely related. The child
should therefore have a domicil at the home of the person who stands in loco parentis to him and with whom he lives even though this ...