Brandon v. Brandon , 1922 Ga. LEXIS 441 ( 1922 )

Hines, J.

(After stating the foregoing facts.) This case was a habeas-corpus proceeding brought by Katie Brandon, his divorced wife, against Paul Brandon, for the custody of their minor child, Harold Brandon, who was, at the time of the filing of the wife’s petition for the writ, in the custody of the father. Both husband and wife were reared in this State. They were married in Tennessee in 1912. For a number of years they lived in Georgia; and their only child, the subject-matter of this controversy, was born in this State. The parents afterwards moved to Ohio, and lived there about five years. About two years ago they separated, the wife continuing to dwell in Ohio, and the husband coming back to Georgia, and bringing with him the child. The child remained in this State until August or September, 1921, when the wife came to Georgia and took the child back to Ohio .with her. The circumstances under' which she did this do not appear from the evidence. On getting back to Ohio, the wife, in September, 1921, instituted an action for divorce against the husband. The ground. for divorce seems to have been that the husband had been “guilty of gross neglect of duty.” The application for divorce is not in the record; but the decree recites that the court found that the husband had been guilty of gross neglect of duty, and that by reason thereof the wife was entitled to a divorce. Shortly after the institution of the divorce action, and in September, 1921, the husband went to Ohio, and, while the wife was away from home at work, took this child and brought him back to Georgia, where he was when the wife was granted a decree of divorce and was awarded the custody of this child in this action, in December, 1921, the decree being based upon service by publication.

What force and effect should that portion of this decree, by which the custody of this child was awarded to the mother, have in this State ? Does -it conclude the father, if nothing has transpired since its rendition to make the mother an unfit person to have its custody? Where husband and wife were domiciled in this State, ancffthe husband left the wife and acquired in good faith, after a lapse of five years, a domicile in another State, where he obtained a judgment of divorce based upon-constructive, and not actual, service of process on the wife, this court held that such judgment was not entitled to obligatory enforcement in Georgia, under the full-faith-and-credit clause of the United States Constitution (Civil Code of 1910, § 6672) ; but that under the general law governing the comity of nations, in a proper case, the judicial proceedings of another State will be enforced in this State, provided they do not involve anything immoral, are not contrary to public policy, or are not violative of the conscience of this State. Joyner v. Joyner, 131 Ga. 217 (62 S. E. 182, 18 L. R. A. (N. S.) 647, 127 Am. St. R. 220). So where a total divorce was granted by an Alabama court, and by the decree the custody of the only child was given to the mother, the effect was to put the mother, as to the control of the child, in the place of the father, and make her custody legal; and this court held that habeas corpus at the instance of the father for the possession of the child, on the ground that the child was illegally 'detained, and that the mother was not a ñt and proper person to. rear it, would not lie. Hammond v. Hammond, 90 Ga. 527 (16 S. E. 265). In that case both parents resided in Alabama at the time the divorce was granted, and no change in their status (apparently) had taken place before the institution of the habeas-corpus proceeding. The principle that a decree of divorce, awarding the custody of the children of the parties, rendered by a court of another State having jurisdiction of the subject-matter and of the parties, should be given full effect in another State, is sound. Bennett v. Bennett, Deady (U. S.) 299 (Fed. Cas. No. 1318); Hardin v. Hardin, 168 Ind. 352 (81 N. E. 60); Wilson v. Elliott, 96 Tex. 472 (73 S. W. 946, 75 S. W. 368, 97 Am. St. R. 928); Kentzler v. Kentzler, 3 Wash. 166 (28 Pac. 370, 28 Am. St. R. 21); Morrill v. Morrill, 83 Conn. 479 (77 Atl. 1); Re Davis, 25 Ont. 579; State ex rel. Hahn v. King, 109 La. 161 (33 So. 121); Bidwell v. Bidwell, 139 N. C. 402 (52 S. E. 55, 2 L. R. A. (N. S.) 324, 111 Am. St. R. 797); Wakefield v. Ives, 35 Iowa, 238; Dubois v. Johnson, 96 Ind. 6; Umlauf v. Umlauf, 27 Ill. App. 375; Jennings v. Jennings, 56 Iowa, 288 (9 N. W. 222); State ex rel. Nipp v. District Ct., 46 Mont. 425 (128 Pac. 590, Ann. Cas. 1916B, 256); Anderson v. Anderson, 74 W. Va. 124 (81 S. E. 706); Ex parte Boyd (Tex. Civ. App.), 157 S. W. 254; Mylius v. Cargill, 19 N. M. 278 (142 Pac. 918, L. R. A. 1915B, 154, Ann. Cas. 1916B, 941); 9 R. C. L. 477, § 293; Milner v. Gatlin, 139 Ga. 109 (76 S. E. 860).

But such decree can not anticipate changes which may occur in the condition of the parents, or in their character and fitness for the care of their children. A decree in a divorce suit, granted by a court having jurisdiction of the subject-matter and of the parties, and awarding the custody of a child to one parent, is at best but prima facie evidence of the legal right to the child’s custody: but is not conclusive in habeas-corpus proceedings where neglect or mistreatment of the child, or unfitness of the parent since the date

of the decree, is involved. Williams v. Crosby, 118 Ga. 296 (45 S. E. 282); Barlow v. Barlow, 141 Ga. 535 (81 S. E. 433, 52 L. R. A. (N. S.) 683); Milner v. Gatlin, 143 Ga. 816 (85 S. E. 1045, L. R. A. 1916B, 977); Gillens v. Gillens, 148 Ga. 631 (97 S. E. 669).

This brings us to consider the effect of a judgment granting a divorce and awarding the custody of children, which was based upon constructive service by publication, without actual notice to the non-resident defendant. This court has held that such a judgment will not be regarded as a conclusive adjudication of the disposition of the child, where the evidence shows that the judgment was obtained by fraudulent representations in order to confer jurisdiction upon the court rendering the judgment; and that such judgment can be collaterally attacked. Matthews v. Matthews, 139 Ga. 123 (76 S. E. 855); Solomon v. Solomon, 140 Ga. 379 (78 S. E. 1079).

This brings us to1 consider the effect of such a decree upon the right of the father to the custody of his minor child, when the child was not in the State whose court rendered the same, at the time of its rendition, but was with the-father in this State at such time. If this child had been residing with the mother in Ohio at the time of the rendition, in that State, of the decree of divorce in favor of the mother upon constructive service, such decree might be binding and conclusive upon the father in this habeas-corpus proceeding brought by the wife in this State to secure the custody of the child from the father. Wakefield v. Ives, 35 Iowa, 238. It has been held that action for divorce is a proceeding in rem, so far as it affects the status of the parties and the custody of their minor children within the jurisdiction of the court, and that service of the summons by publication is good. Estate of Newman, 175 Cal. 218, 7 Am. St. R. 146. Where, however, the child was living with the father in this State at the time of the rendition of the decree of divorce, awarding the child’s custody to the mother, the court was without jurisdiction to award the custody of the child to the mother, such decree being based upon service by publication alone on the father. Kline v. Kline, 57 Iowa, 386 (10 N. W. 825, 42 Am. R. 47); Rodgers v. Rodgers, 56 Kan. 483 (43 Pac. 779); De la Montanya v. De la Montanya, 112 Cal. 101 (44 Pac. 345, 32 L. R. A. 82, 53 Am. St. R. 165); Seeley v. Seeley, 30 App. D. C. 191 (12 Ann. Cas. 1058); Harris v. Harris, 115 N. C. 587 (20 S. E. 187, 44 Am. St. R. 471); People v. Hickey, 86 Ill. App. 20 (5),

But it may be said that at the time the wife started her divorce suit in Ohio this child was with her in that State, and for that reason the court had jurisdiction of the child. The child’s presence in that State was only temporary, and such temporary, residence of the child did not give the Ohio court jurisdiction. Lanning v. Gregory, 100 Tex. 310 (99 S. W. 542, 10 L. R. A. (N. S.) 690, 123 Am. St. R. 809).

The father of a' child born in wedlock is its natural guardian, and as such was formerly entitled to its custody and control. Taylor v. Jeter, 33 Ga. 195 (81 Am. D. 202). Now he has no such prima facie right. Ga. Laws 1913, p. 110. The domicile of a minor is that of his father. Jackson v. So. Flour &c. Co., 146 Ga. 453 (91 S. E. 481). The appointment, by the probate court of Chambers County, Alabama, of a guardian for two minors residing at the time in this State was void, because the court had no jurisdiction of their persons. Boyd v. Glass, 34 Ga. 253 (89 Am. D. 252). So the Ohio court had no jurisdiction of the person of this minor, and so much of the divorce decree as awarded its possession to the mother is void for want of such jurisdiction. Lack of jurisdiction may be shown as to the subject-matter, or the person, or, in proceedings in rem, as to the res. McCauley v. Hargroves, 48 Ga. 50 (15 Am. E. 660); Davis v. Albritton, 127 Ga. 518 (56 S. E. 514, 8 L. R. A. (N. S.) 820, 119 Am. St. R. 352). So we are of the opinion that the decree of the Ohio court, so far as it sought to award the custody of this child to the mother, was not binding upon the father, and did not prelude him from asserting his legal right to the child’s custody. As the court below held that this decree was conclusive upon the father, and did not award the custody of the child upon a general consideration of the welfare of the child, we feel constrained to reverse the judgment awarding the child to the mother.

In view of the above ruling, the court below erred in rejecting evidence offered by the father to show his good character, his fitness to have the custody of the child, and his financial ability to maintain and educate him.

When the court below announced its decision, awarding the child to the mother, who resides in Ohio, and who was temporarily in Georgia to attend the trial of this proceeding, counsel for the defendant requested the court to pass such order of supersedeas as would preserve the status, until the decision could be reviewed. This the court refused, and error was assigned on this ruling. “ The policy of the law is against allowing the status to be changed until the final termination of a case in the court of last resort.” Gustoso Cigar Mfg. Co. v. Ray, 117 Ga. 565 (43 S. E. 984). The proper practice, in a case where irreparable injury may result, by carrying the judgment instantly into effect, is, upon notice being given to the court that a bill of exceptions wall be filed, to allow a reasonable time for this to be done, before the judgment is carried into effect. Lindsey v. Lindsey, 14 Ga. 657. The court erred in permitting the immediate execution of its judgment awarding the custody of this child, pending appeal, to the mother who lived out of this State. Page v. Page, 166 N. C. 90 (81 S. E. 1060).

Judgment reversed.

All the Justices concur.