McAlhany v. Allen , 195 Ga. 150 ( 1942 )

1. Where a husband and his wife were divorced by a decree in the State of Florida, and as a part of the decree the custody of their infant son was awarded, with the consent of the husband, to the wife, and where in subsequent litigation in the State of Georgia, between the father and another person who claims to have adopted the child with the consent of the mother after such decree, no statute of the State of Florida is pleaded, the question as to the effect of such award of custody on the rights of the father must be determined by the law of the forum. Trustees of Jesse Parker Williams Hospital v. Nisbet, 189 Ga. 807 (7 S.E.2d 737); Alropa Corporation v. Pomerance, 190 Ga. 1 (1-d) (8 S.E.2d 62); Pink v. A. A. A. Highway Express Inc., 191 Ga. 502 (13 S.E.2d 337, 137 A.L.R. 934).

2. Under the Georgia law, such a decree awarding custody of the child to the mother, but not purporting to sever the parental relation between the child and his father or to determine other rights as between them, would relate only to custody, and would not prevent the father from asserting his natural parental authority in case of a change of circumstances affecting the child's interest. Woodland v. Woodland, 153 Ga. 202 (111 S.E. 673); Glendinning v. McComas, 188 Ga. 345 (3 S.E.2d 562). See State ex rel. Airston v. Bollinger, 88 Fla. 123 (101 So. 282); Mooty v. Mooty, 131 Fla. 151 (179 So. 155); Mehaffey v. Mehaffey, 143 Fla. 157 (196 So. 416).

3. Where, after the decree awarding custody to the mother, she and his father were reunited in lawful marriage, the parental rights of the father would be restored, and he would be entitled to claim the custody to the same extent as if no divorce had ever been granted, provided no other legal obstacle appeared. Glendinning v. McComas, supra; Chapin v. Cummings, 191 Ga. 408 (12 S.E.2d 312).

4. Where, during the interim between such divorce and remarriage, the mother consented in the State of Tennessee for other persons to adopt the child in accordance with the laws of Tennessee, and the child was adopted accordingly through a decree of a court of competent jurisdiction of that State, the full faith and credit clause of the Federal constitution would not require that such decree of adoption be given effect in this State as against the father, where he was not made a party in the adoption case, and was not served, and did not appear and plead or otherwise waive service, or consent to such adoption. Brandon v. Brandon, 154 Ga. 661 (4) (115 S.E. 115); Old Wayne Mutual Life Association v. McDonough, 204 U.S. 8 (27 Sup. Ct. 236, 51 L. ed. 345); Bagley v. General Fire Extinguisher Co., 212 U.S. 477 (29 Sup. Ct. 341, 53 L. ed. 605).

5. Where at the time of such adoption proceedings in Tennessee the father was a resident of Florida, and was not made a party in such case, and had no other connection therewith, except that, after the case had been assigned for trial on a certain day, the judge continued it for five days, and instructed the clerk of the court to notify the father in Florida, by registered return mail, that the cause was assigned for final hearing on the later date specified, such notice, though received by the father, did not have the effect of making him a party, or constitute legal service within the due-process clause of the Federal constitution; and on these facts, without more, the parental rights of the father with respect to the child would not be affected by the adoption decree.

"(a) A judgment of another State without jurisdiction may be collaterally attacked.

"(b) 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 (2-a, b) (76 S.E. 860). See Brandon v. Brandon, supra; Matthews v. Matthews, 139 Ga. 123 (76 S.E. 855); Drake v. Drake, 187 Ga. 423 (1 S.E.2d 573); notes in U.S.C.A., part 2, pp. 356-357.

6. Where after such adoption decree the adoptive mother brought the child into this State, and the natural father also came into this State and instituted habeas corpus against such adoptive mother for recovery of the child, as to which his right of custody had been restored by his remarriage with the mother, and where the other facts were shown to be as indicated in the preceding notes, he was entitled to prevail as against the sole contention of the respondent that the decree of adoption as rendered in Tennessee should be given effect in this State under the full faith and credit clause of the Federal constitution.

7. Under the preceding rulings as applied to the pleadings and the evidence in the habeas-corpus case, the judge did not err in awarding custody of the child to the natural father as against the adoptive mother.

8. Under the facts of the case, it is unnecessary to determine what effect, if any, should have been given to such judgment of adoption, as to the father, if he had been made a party in the cause but had not consented to the adoption; and since neither the natural mother nor the adoptive father was a party to such habeas-corpus case, no ruling can properly be made and none will be made as to the effect of such adoption judgment upon the rights of the mother with respect to whether it was obtained through fraud in relation to jurisdiction, or otherwise. See Durden v. Durden, 184 Ga. 421 (191 S.E. 455); Barnett v. Barnett, 191 Ga. 501 (13 S.E.2d 19); Adams v. Adams, 191 Ga. 537 (13 S.E.2d 173); In re Knott, 138 Tenn. 349 (197 S.W. 1097); Redmond v. Wardrep, 149 Tenn. 35 (257 S.W. 394); Carnes v. Henderson, 10 Tenn. App. 166; Magevney v. Karsch, 167 Tenn. 32 (65 S.W.2d 562, 92 A.L.R. 343).

Judgment affirmed. All the Justices concur.

No. 14307. DECEMBER 3, 1942. Charles R. Allen applied for the writ of habeas corpus against Mrs. Cleo P. McAlhany, for recovery of a child of whom he was the natural father, but who was claimed by Mrs. McAlhany on the ground that he had been lawfully adopted by her and her husband through proceedings in a court of competent jurisdiction in the State of Tennessee. The judge, after hearing evidence, awarded the child to the applicant, and the respondent excepted. The sole question for determination is whether the judgment of adoption in Tennessee should have been accepted and applied by the judge under the full faith and credit clause of the United States constitution. Code, § 1-401.

After the case reached this court, counsel for the parties, complying with rule 17 (178 Ga. viii), filed with the record the following:

"Agreed statement of facts. "This case involves the custody of a child, Charles R. Allen Jr., also known as Charles R. McAlhany, referred to hereafter as the child. The child is the natural child of Marguerite Allen and Charles R. Allen, and was adopted under an order of the county court of Maury County, Tennessee, by M. R. McAlhany and his wife, Mrs. Cleo McAlhany. The case involves the effect that is to be given by the courts of Georgia to this Tennessee adoption decree; and this is a habeas-corpus action brought by the natural father, Charles R. Allen, hereinafter referred to as the petitioner, against the adoptive mother, Mrs. Cleo McAlhany, hereinafter called the respondent.

"The child involved is a boy three years old, who was born to the petitioner and his wife, Marguerite Allen. When the child was a year and a half old, the wife of the petitioner, Marguerite Allen, brought a suit for divorce in the Florida courts against the petitioner. As a part of the proceedings, the petitioner agreed to give the custody of the child to his wife. In accordance therewith, the Florida court as a part of the divorce decree awarded the ``care, custody, and control of the minor child' to Marguerite Allen, the decree being dated April 24, 1941.

"Subsequently, in June, 1941, the mother and the child visited a sister of the natural mother in Macon. While in Macon, as a result of correspondence and telephone conversation with the respondent, the mother of the child agreed to go with the child to Columbia, Tennessee, to the home of the respondent, with the understanding that the child was to remain there six months, at the end of which time the parties were to agree as to whether the child was to remain with the respondent and her husband, or to be returned to the natural mother.

"Shortly after going to Tennessee the natural mother and the respondent, Mrs. McAlhany (the sister of the natural mother), changed the terms of the original agreement. There was a contradiction in the testimony in the habeas-corpus action, between the natural mother and the adoptive mother, as to what thereafter transpired. The natural mother testified that Mrs. McAlhany did not wish to wait the six-months period, but desired to adopt the child, and that if there was a remarriage between the natural mother and the child's father, that respondent would want him to be with the natural parents and would give him back. She stated that, based upon this agreement, she testified in the Tennessee court in the adoption hearing. Mrs. McAlhany, the respondent, denied that there was any such agreement with reference to remarriage. She also testified that there was no persuasion on her part, but that the natural mother voluntarily made the offer, stating that she had made her decision, and that she did not wish to wait the six-months period. She further testified that when the Tennessee judge questioned the natural mother he propounded to her questions concerning the possibility of her remarriage to the father of the child, and that even then it was her wish, according to her testimony in open court, that the proposed adoptive parents should continue to have the child, regardless of her remarriage, or, even in the event of the death of Mrs. McAlhany, she desired her brother-in-law to have the child.

"The Tennessee court records, copies of which were introduced in the case at bar, showed that M. R. McAlhany and the respondent filed a petition for the adoption of the child on August 11, 1941. The petition recited the usual facts, and in addition thereto stated that the child's parents were divorced and the exclusive custody of the child was vested in the mother by the Florida decree. It further recited that the father of the child would not be able to assist the mother in the maintenance, education, and support of the child; and further recited that the proposed adoptive parents had been in contact with the father of the child, and had been advised by him that he ``approves or consents to the adoption of the child.' This adoption petition was signed on August 11, 1941, by the natural mother, stating that she had read over and knew the contents of the petition and gave her consent to the adoption.

"The natural father of the child testified, in this connection, that he had received the notice from the Tennessee court requesting that he sign a consent to the adoption, but that he had not consented to the adoption. On September 14 or 15, he learned from a telephone conversation with the natural mother that she intended to send a telegram to Mrs. McAlhany, asking that the adoption decree be not made final. This telegram was sent on September 15, 1941, and read, ``Do not make final papers on Bobby. Letter follows explaining. Love.'

"When the adoption case came on in the Tennessee court on September 15, the court passed an order reciting that there was some doubt as to whether or not the father of the child sought to be adopted knew of the fact that the cause was set for a hearing on that date; and on motion by the proposed adoptive parents the cause was continued until September 20, 1941, and the clerk of the court was instructed to notify the father by registered mail return-receipt that the cause was assigned for final hearing on September 20, 1941. This notice was received by the natural father, but he testified that as he had been advised that the telegram had been sent that he therefore did not take any further steps. The father had previously engaged the services of a Florida lawyer for the purpose of preventing the adoption of the child; but no steps were taken in the Tennessee action, by either the natural mother or the natural father, to prevent the adoption proceedings being made final.

"Prior to a final order of the adoption being taken, the telegram from Mrs. Allen to Mrs. McAlhany was presented to the Tennessee court, but, according to the testimony of the respondent, the presiding judge stated that as the mother had signed the petition and had appeared in open court and given her testimony, the court could not legally recognize anything done by the mother outside of the court.

"The final order of adoption, dated September 25, 1941, recited ``Personal notice to Charles Robertson Allen Sr., father of the minor, of the filing of this petition and the date and place of the final hearing thereon.'

"The order of adoption also contained the usual provisions granting the adoption, changing the child's name, and giving to the child full rights of inheritance from the adopted parents.

"Subsequently, on October 19, 1941, the Allens remarried. The contention was made by the respondent that the Allens acquiesced in the adoption by letters which were introduced in evidence. One of these letters contained an enclosure that had been written by the petitioner, but which had not been mailed by him.

"The child remained with its adoptive parents, and was brought to Savannah in June, 1942, at the time that the respondent, Mrs. McAlhany, come to Savannah because of the illness of her mother. The Allens likewise came to Savannah at the same time; and thereupon the natural father of the child, the petitioner, brought a habeas-corpus action in the city court of Savannah against the respondent, Mrs. McAlhany. Petitioner contended that the adoption proceedings in Tennessee were not valid; whereas the respondent answered and alleged that the Tennessee decree was a judgment of competent jurisdiction of a court of a sister State to the State of Georgia, and, as such, entitled to full faith and credit in the instant proceeding. After hearing evidence and argument, the trial court passed an order dated July 1, 1942, in which it construed the Tennessee statute of adoption and recited the other facts mentioned herein, and held that since the father never consented, and the mother withdrew her consent before the final decree, that the decree of adoption in Tennessee should be declared a nullity; and awarded the custody of the child to the petitioner. The foster mother appeals from this ruling."