Yarborough v. Yarborough

Mr. Justice Brandéis

delivered the opinion of the Court.

On August 10, 1930, Sadie Yarborough, then sixteen years of age, was living with her maternal grandfather, R. D. Blowers, at Spartanburg, South Carolina. Suing by him as guardian ad litem, she brought this action in a court of that State to require , her .father, W. A. Yarborough, a resident of Atlanta, Georgia, to make provision for her education and maintenance.' v She alleged “ that she is now ready for college and is without funds and, unless the defendant makes provision for her, will be denied the necessities of life and an education, and will be dependent upon the charity of others.”¹ Jurisdiction was obtained by attachment of defendant’s property. Later he was served personally within South Carolina.

In bar of the action, W. A.. Yarborough set up, among other defenses, a judgment entered in 1929 by the Superior Court of Fulton County, Georgia, in a suit for divorce brought by him against Sadie’a mother. He alleged that by the judgment the amount thereafter to be paid by him for Sadie’s education and maintenance had been determined ; that the sum so fixed had been paid; and that the judgment had been fully satisfied by him. He claimed that in Georgia the judgment was conclusive of the matter here in controversy; that having been satisfied, it relieved him, under the Georgia law,. of all obligation to provide for the education and maintenance of their minor child; and that the full faith and credit clause of the Federal Constitution (Art. IV, § 1) required the South Carolina court to give to that judgment the same effect in this proceeding which it has, and would have, in Georgia.. The trial court denied the claim; ordered W. A. Yarborough to pay to the grandfather, as trustee, fifty dollars monthly for Sadie’s education and support; and to pay $300 as fees of her counsel. It directed 'that the property-held under the attachment be transferred to R. D. Blowers, trustee, as security for the performance of the order. The judgment was affirmed by the Supreme Court of South Carolina. A petition for rehearing was denied, with opinion. 168 S.C. 46; 166 S.E. 877. This Court granted certiorari. 289 U.S. 718.

For sometime prior to June, 1927, W. A. Yarborough, his wife and their daughter Sadie had lived together at Atlanta, Georgia, where he then was, and ever since has been, domiciled. In that month, Sadie’s mother left Atlanta for Hendersonville, N. C., where she remained during the summer. Sadie joined her there, after a short stay at a camp. In September, 1927, while they were at Hendersonville, W,. A. Yarborough brought, in the Superior Court for Fulton County, at Atlanta, suit against his wife for a total divorce on the ground of mental and physical cruelty. Mrs. Yarborough filed an answer and also a cross-suit in which she prayed a total divorce, the custody of the child and “ that provision for permanent alimony be made for the support of the respondent and the minor child above mentioned [Sadie], and for the education of said minor child.” An order, several times modified, awarded to the wife the custody of Sadie and, as temporary alimony, sums “ for the support and maintenance of herself and her minor daughter Sadie.” Hearings were held from time to time at Atlanta. At some of these; Sadie (and also her grandfather) was personally present. But she was not formally made a party to the litigation; she was not served with process; and no guardian ad litem was appointed for her therein.

“ Two concurring verdicts favoring a total divorce to plaintiff having been rendered,” ² a decree of total divorce, with the right in each to remarry, was entered on June 7, 1929; the wife was ordered to pay the costs; and jurisdiction of the case “ was retained for the purpose of further enforcement of the orders of the court theretofore passed.”³ Among such orders, was the provision for the maintenance and education of Sadie here relied upon as res judicata. It was entered on January 17, 1929 (after the rendition of the first verdict), and provided:

“ Parties, plaintiff and defendant, having personally in writing, consented hereto, and their respective counsel of record having likewise consented in writing hereto,

“ It is considered, ordered and adjudged that the following settlement be hereby made the order of the Court, the same being in full settlement of temporary and permanent alimony in said case, and in full settlement of all other demands of every nature whatsoever between the parties.”

Then followed, after describing certain mortgages:

“ It is. considered, ordered and adjudged that said mortgages be, and they are hereby transferred, sold and assigned by the plaintiff, W. A. Yarborough to the defendant, Mrs. Susie B. Yarborough to the extent of One Thousand, Seven Hundred Fifty Dollars ($1,750.00), and the plaintiff, W. A. Yarborough, does hereby transfer, sell and assign said mortgages to R. D. Blowers, of Spartan-burg, South Carolina, as Trustee for Sadie Yarborough, minor daughter of plaintiff and defendant, to the extent of One Thousand, Seven Hundred. Fifty Dollars (11,750.00). . . . The amount to be thus received by R. D. Blowers as Trustee for Sadie Yarborough, minor daughter of plaintiff and defendant, shall be expended by him in his discretion for the benefit of the minor child, including her education, support, maintenance, medical attention and other necessary items of expenditure.

“ Upon compliance with this order by the plaintiff, he shall be relieved of all payments of alimony and counsel fees, in said case, except that the payment due under the prior order of Court of the sum of Fifty Dollars ($50.00) for the month of January, 1929, [to Mrs. Yarborough for the support of herself and Sadie] shall be by him paid, in addition to the other amounts hereinbefore named. . . .

“ The provisions of the order, of the Court heretofore entered fixing the times and the places when plaintiff, W. A. Yarborough, shall have the right to visit and have with him, out of the presence of the defendant, the saicl Sadie Yarborough,' minor daughter of' plaintiff and defendant,, are hereby continued in force.”

W. A. Yarborough, complied fully with this order.

By the law of Georgia, it is the duty of the father to provide for the maintenance and education of his child until maturity.⁴ Wilful abandonment of a minor child, leaving it in a dependent condition, is a misdemeanor.⁵ The mere loss óf custody by the father does not relieve him of his obligation to provide for maintenance and education, even where the custody passes to the mother pursuant to a decree of divorce.⁶ If the father fails to make such provision, any person (including a divorced wife) who furnishes necessaries of life to his minor child, may recover from him therefor, unless precluded by the terms of the decree in the divorce suit or otherwise.⁷ In case of total divorce, the court is authorized to make, by its decree, final or permanent provision for the maintenance and education of children during minority, and thus fix the extent of the father’s obligation.⁸ But even if the decree for total divorce fails to include a provision for the support of minor children, they cannot maintain in their own names, or by guardian ad litem, or by next friend, an independent suit for an allowance for education and maintenance.⁹

First. It was contended below in the trial court, and there held, that the provision of the decree of the Georgia court directing the payment to R. D. Blowers, trustee, of $1,750 to be “ expended by him in his discretion for the benefit of the minor child, including her education, support, maintenance, medical attention and other necessary items of expenditure ” was not intended to ^relieve the father from all further liability to support Sadie. This contention appears to have been abandoned. It is clear that Mrs. Yarborough, her husband and the court intended that this provision should absolve Sadie’s father from'further obligation to support her. That the term “ permanent alimony ” as used in the decree of the Georgia court, means a final provision for the minor child is shown by both the legislation of the State and the decisions of its highest court.¹⁰ The refusal of the South Carolina court to give the judgment effect as against Sadie is now sought to be justified on other grounds.

Second. It is contended that the order or decree providing for Sadie’s permanent support is not res judicata because it did' not conform to the provisions of the Georgia law. The argument is that the controlling statute required such an order to be entered after the second or final verdict; and that since the order was entered before the second verdict and was not mentioned in it, the order was unauthorized and is void. The Georgia decisions have settled that, a consent decree or order fixing permanent alimony for a minor child, at whatever stage of the divorce proceedings it may have been entered, has the same effect as if, based upon, and specifically mentioned in, the second verdict of a jury;¹¹ and that such an order, like any other judgment, becomes unalterable after the expiration of the term.¹²

Third. It is contended that the Georgia decree is not binding upon Sadie, because she was not a formal party to the suit, was not served with process and no guardian ad litem was appointed for her therein. In Georgia, as elsewhere, a property right of a minor can ordinarily be affected by legal proceedings only if these requirements are complied with.¹³ But the obligation imposed by the Georgia law upon the father to support his minor child does not vest in the child a property right. This is shown by the fact, among other things, that the minor cannot maintain in his own name, or by guardian ad litem or by next friend, a suit against his father to enforce the obligation.¹⁴ The provision which the Georgia law makes of permanent alimony for the child during minority is a legal incident of the divorce proceeding. As that suit embraces within its scope the disposition and care of minor children, jurisdiction over the parents confers eo ipso jurisdiction over the minor’s custody and support. Hence, by the Georgia law, a consent (or other) decree in a divorce suit, fixing permanent alimony for a minor child is binding upon it, although the child was not served with process, was not made a. formal party to the suit, and no guardian ad litem was appointed therein.¹⁵

Fourth. It is contended that the order for permanent alimony is not binding upon Sadie because she was not a resident of Georgia at the ..time it was entered. Being a minor, Sadie’s domicile whs Georgia, that of her father;¹⁶ and her domicile continued to be in Georgia until entry of the judgment in question. She was not capable by her own act of changing her domicile.¹⁷ Neither the temporary residence in North Carolina at the time the divorce suit was begun,¹⁸ nor her removal with her mother to South Carolina before entry, of the judgment, effected a change of Sadie’s domicile.¹⁹ It is true that, under the Georgia Code, a minor may acquire a domicile apart from the father if he has “ voluntarily relinquished his parental authority.” But the mere fact that the parents were living separately at the time the suit for divorce was brought and that Sadie was with her mother, does not establish such relinquishment.²⁰ Compare Anderson v. Watt, 138 U.S. 694, 706. The character and extent of the father’s obligation, and the status óf the minor, are determined ordinarily not by the place of the minor’s residence but by the law of the father’s domicile.²¹ Moreover, this is not a case where the scope of the jurisdiction acquired by the Georgia court rests upon the effectiveness of service by publication upon a nonresident. Mrs. Yarborough filed a cross-bill, as well as an answer; and in the cross-bill prayed' “ that provision for permanent alimony be made for the ” support and education of Sadie. Thus the court acquired complete jurisdiction of the marriage status and, as an incident, power to finally determine the extent of her father’s obligation to support his minor child.²²

Fifth. The fact that Sadie has become a resident of South Carolina does not impair the finality of the judgment. South Carolina thereby acquired the jurisdiction to determine her status and the incidents of that status. Upon residents of that State it could impose duties for her benefit. Doubtless, it might have imposed upon her grandfather who was resident there a duty to support Sadie. But the mere fact of Sadie’s residence in South Carolina does not give that State the power to impose such a duty upon the father who is not a resident and who long has been domiciled in Georgia.²³ He has fulfilled the duty which he owes her by the law of his domicile and the judgment of its court. Upon that judgment he is entitled to rely.²⁴ It was settled by Sistare v. Sistare, 218 U.S. 1, that the full faith and credit clause applies to an unalterable decree of alimony for a divorced wife. The clause applies, likewise, to an unalterable decree of alimony for a minor child.²⁵ We need not consider whether South Carolina would have power to require the father, if he were domiciled there, to make further provision for the support, maintenance, or education of his daughter.

Reversed.

1 There was no suggestion that plaintiff would be destitute or become a public charge. Indeed, her grandfather testified that he was able and willing to provide $125 a month for her education and maintenance (the amount sought by plaintiff), if her father was unable to do so.

2 § 2944 of the Georgia Civil-Code (1910) provides: “ Divorces may be granted by the superior court and shall be of two kinds—total or from bed and board. The concurrent verdict of two juries, at different terms of the court, shall be necessary to .a total divorce.”

3 Custody of Sadie had been awarded to the mother; and it had been ordered that the father be “ allowed the privilege of visiting his said minor daughter, and of having her with him, out of the presence of the defendant, on the second and fourth week-ends of each month, from the close of school hours Friday until Sunday night of said week ends, during school terms, and at like times during vacation; at which times the plaintiff shall be entitled to take said minor daughter on pleasure trips of reasonable distance returning her punctually at the conclusion of the allotted time.”

4 Georgia Civil Code (1910), § 3020.

5 Georgia Penal Code (1910), § 116; Jackson v. State, 1 Ga. App. 723; 58 S.E. 272.

6 Brown v. Brown, 132 Ga. 712, 715; 64 S.E. 1092.

7 Brown v. Brown, 132 Ga. 712; 64 S.E. 1092; Hall v. Hall, 141 Ga. 361; 80 S.E. 992; Hooten v. Hooten, 168 Ga. 86, 90; 147 S.E. 373; Garrett v. Garrett, 172 Ga. 812; 159 S.E. 255; Pace v. Bergquist, 173 Ga. 112, 114; 159 S.E. 678.

8 The order for permanent alimony for the child is a matter distinct from that for permanent alimony for the wife. See Johnson v. Johnson, 131 Ga. 606; 62 S.E. 1044. The applicable sections of the Georgia Civil Code (1910) annotated are: “§ 2981. Alimony for children on final trial.—If the jury, on the second or final verdict, find in favor of the wife, they shall also, in providing permanent alimony for her, specify what amount the minor children shall be entitled to for their permanent support; and in what manner, how often, to whom, and until when it shall be paid; and this they may also do, if, from any legal cause,' the wife may not be entitled to permanent alimony, and the said children are not in the same category; and when such support shall be thus granted, the husband shall likewise not be liable to third persons for necessaries furnished the children embraced in said verdict who shall be therein specified.”

“ § 2982. Judgments, how enforced.—Such orders, decrees, or verdicts, permanent or temporary, in favor of the children or family of the husband, may be enforced as those in favor of the wife exclusively.”

9 Sikes v. Sikes, 158 Ga. 406; 123 S.E. 694; Hooten v. Hooten, 168 Ga. 86; 147 S.E. 373. Compare Maddox v. Patterson, 80 Ga. 719; 6 S.E. 581; Humphreys v. Bush, 118 Ga. 628; 45 S.E. 911.

10 See note 7. Also Coffee v. Coffee, 101 Ga. 787; 28 S.E. 977; Johnson v. Johnson 131 Ga. 606, 608, 609; 62 S.E. 1044; Gilbert v. Gilbert, 151 Ga. 520, 523; 107 S.E. 490; Gaines v. Gaines, 169 Ga. 432, 434, 435; 150 S.E. 645.

11 Coffee v. Coffee, 101 Ga. 787, 790; 28 S.E. 977: “In the present case, the parties dispensed with a jury trial’ upon the question of allowance of permanent alimony, and by Consent invoked a decree of the court .fixing the allowance upon the terms stated in the decree. This’ consent having been approved- by the court in which the cause was pending after grant of the divorce, the court loses control over the subject, and the decree stands as other judgments against the husband.”

12 See Wilkins v. Wilkins, 146 Ga. 382; 91 S.E. 415; Gilbert v. Gilbert, 151 Ga. 520; 107 S.E. 490; Gaines v. Gaines, 169 Ga. 432, 433; 150 S.E. 645. The decree for the child’s custody is, however, subject to modification at any time. Brandon v. Brandon, 154 Ga. 661; 115 S.E. 115.

13 Groce v. Field, 13 Ga. 24; Hill v. Printup, 48 Ga. 452, 454.

14 See cases in note 9.

15 Compare Kell v. Kell, 179 Iowa 647, 650; 161 N.W. 634; Snover v. Snover, 10 N.J.Eq. 261, 262; Marks v. Marks, 22 S.D. 453, 457; 118 N.W. 694; Wells v. Wells, 11 App.D.C. 392, 394.

16 Compare Georgia Civil Code (1910), § 2992; Jackson v. Southern Flour & Grain Co., 146 Ga. 453; 91 S.E. 481; Civil Code (1910), § 2184.

17 Jackson v. Southern Flour & Grain Co., 146 Ga. 453; 91 S.E. 481.

18 McDowell v. Gould, 166 Ga. 670, 671; 144 S.E. 206.

19 Compare Taylor v. Jeter, 33 Ga. 195.

20 Hunt v. Hunt, 94 Ga. 257; 21 S.E. 515.

21 MacDonald v. MacDonald, 8 Bell & Murray (2d Series) 830; Coldingham Parish Council v. Smith, [1918] 2 K.B. 90. Compare Irving v. Ford, 183 Mass. 448; 67 N.E. 366; Blythe v. Ayres, 96 Cal. 532; 31 Pac. 915.

22 Schroeder v. Schroeder, 144 Ga. 119; 86 S.E. 224. Compare State v. Rhoades, 29 Wash. 61, 68; 69 Pac. 389; Anderson v. Anderson, 74 W.Va. 124; 81 S.E. 706; State ex rel. Shoemaker v. Hall, 257 S.W. (Mo.) 1047; Laumeier v. Laumeier, 308 Mo. 201; 271 S.W. 481; Laumeier v. Laumeier, 237 N.Y. 357; 143 N.E. 219; 242 N.Y. 501; 152 N.E. 401.

23 It appeared that W. A. Yarborough, having married. again, invited Sadie to his home in Atlanta and offered to maintain her there. She refused.

24 To the effect that in civil law countries and the many jurisdictions which have adopted the civil law- th'e duties of support are determined by the nationality or the domicile of the obligor, see Bar, International Law: Private and Criminal (Tr. Gillespie, 1883, §§ 102, 105); Fiore, Le Droit International Prive (4th ed. French tr. Antoine, 1907) §§ 627-629; Makarov, Précis de Droit International Privé (1933) 409-410; Lapradélle-Niboyet, Repertoire de Dróit Interna,tional (1929) Article: “Aliment” §§ 17-23.

Compare Home Insurance Co. v. Dick, 281 U.S. 397.

25 Compare Cowles v. Cowles, 203 App. Div. (N.Y.) 405; 196 N.Y.Supp. 617.