Carter v. Carter , 201 Ga. 850 ( 1947 )

While a decree in another State awarding the custody of a child to the father is conclusive as between the parties to the decree, as to the right and fitness for such custody at that time, yet such a judgment rendered without jurisdiction of the mother may be collaterally attacked without offending the full faith and credit clause of the Constitution of the United States.

(a) The authority of a court to issue and serve process is restricted to the territory where issued, and the court has no power to require persons not within such territory to appear.

(b) In this habeas corpus proceeding brought by a husband against his wife, the trial court was authorized to find that the Domestic Relations Court of Charleston, South Carolina, was without jurisdiction, and since the evidence in the instant case was ample to show that the mother was a proper person to retain the custody of her child, it does not appear that the trial judge abused his discretion in so awarding such custody.

No. 15717. FEBRUARY 6, 1947. Morton M. Carter instituted in Fulton Superior Court, against Mrs. Tommie J. Carter, a habeas corpus proceeding to recover the custody of a minor child. On the trial there was evidence to the following effect: Robert Langston Carter was born in Georgia on October 28, 1941. His mother and father separated on January 15, 1945, while living in Charleston, South Carolina. An older son, not involved in this case, remained with the father. No objection was offered by the father when the mother stated in his presence that she was going to return to Georgia, and that she was going to take the younger child with her. The mother did return with the child to Georgia, where she secured employment and provided for him for more than a year, during which period the father visited the younger son on more than one occasion though he contributed nothing to his support. About the middle of February, 1946, the father without the knowledge or consent of the mother took the child to South Carolina. Some three days later, on February 18, the mother appeared on the scene, demanded her child from a sister-in-law, and immediately returned with him to Georgia. On the same day, the Judge of the Domestic Relations Court of Charleston, in an ex parte proceeding, ordered that temporary custody of the child be given to the father. On February 20, 1946, a named person handed to the mother in Atlanta a copy of a summons from the South Carolina court, which summons contained the statement that, if the mother failed to appear in South Carolina with the child, judgment by default would be taken against her. The mother did not return to South Carolina with the child, and on February 23, the Domestic Relations Court of Charleston ordered that permanent custody of the child be given to the father. In the meantime the mother filed a suit for divorce against the father in Fulton Superior Court; and on May 6, 1946, a judge of the domestic relations court of Fulton County amended a judgment previously rendered on February 20, 1946, by allowing the mother to retain the temporary custody of her minor child, and ordering the father to pay a stated sum weekly for the support of the child, which he paid for some seven weeks. So far as disclosed by this record, there was no exception to any of the above-mentioned judgments. At the conclusion of the evidence in the present case, the trial judge awarded the custody of the child to the mother. The father excepted to this judgment on the grounds that it was contrary to law, contrary to evidence, and without evidence to support it, and because under the pleadings and evidence judgment for the plaintiff was demanded. While a decree in another State awarding the custody of a child to the father is conclusive as between the parties to the decree, as to the right and fitness for such custody at that time (Woodland v. Woodland, 153 Ga. 202,111 S.E. 673), yet such a judgment rendered without jurisdiction of the mother may be collaterally attacked without offending the full faith and credit clause of the Constitution of the United States. Marchman v. Marchman, 198 Ga. 739 (32 S.E.2d 790).

"In all cases where the custody of any minor child or children is involved between the parents, there shall be no prima facie right to the custody of such child or children in the father, but the court hearing such issue of custody may exercise its sound discretion, taking into consideration all the circumstances of the case, as to whose custody such child or children shall be awarded, the duty of the court being in all such cases in exercising such discretion to look to and determine solely what is for the best interest of the child or children, and what will best promote their welfare and happiness, and make award accordingly." Code, § 74-107.

The pleadings and evidence in the present case show that the child was in Georgia in the custody of his mother — where he had been for approximately two years with the exception of two or three days during which the father had surreptitiously taken the child out of this State — at the time the proceedings in South Carolina were instituted. No claim is made that the mother was served in South Carolina.

"The authority of a court to issue and serve process is restricted to the territory where issued, and the court has no power to require persons not within such territory to appear."Milner v. Gatlin, 139 Ga. 109 (2b) (76 S.E. 860);McAlhany v. Allen, 195 Ga. 150 (5b) (23 S.E.2d 676), and cases cited.

Under the preceding rulings as applied to the pleadings and the evidence in this case, the Domestic Relations Court of Charleston was without jurisdiction. In the instant case there was ample evidence to show that the mother was a proper person to retain the custody of her child, and it does not appear that the trial judge abused his discretion in so awarding such custody.

Judgment affirmed. All the Justices concur.