Summary
In Calkins v. Calkins, 217 Ala. 378, 115 So. 866 (1928), the Supreme Court of Alabama followed the Bort case, and disregarding the decree of a court in Tennessee, awarded the custody of the child to its mother.
Summary of this case from Commonwealth ex rel. Rogers v. DavenOpinion
6 Div. 38.
January 12, 1928. Rehearing Denied April 5, 1928.
Appeal from Circuit Court, Jefferson County; William M. Walker, Judge.
B. Hudson and Douglas Hudson, both of Ft. Scott, Kan., and Vassar L. Allen, of Birmingham, for appellant.
The decree of courts of sister states are entitled to full faith and credit. Haddock v. Haddock, 201 U.S. 562, 26 S.Ct. 525, 50 L.Ed. 867, 5 Ann. Cas. 1; Burns v. Shapley, 16 Ala. App. 297, 77 So. 447. The father is entitled to custody of his child under ordinary circumstances and where there are no intervening causes of overwhelming force to suggest otherwise. Ex parte Rickerson, 203 Ala. 305, 82 So. 769; Bryan v. Bryan, 34 Ala. 516. The decree of a sister state involving custody of children are res adjudicata as to all matters arising prior to and up to the time of the rendering of such decree. Hammond v. Hammond, 90 Ga. 527, 16 S.E. 265; Wilson v. Elliott, 96 Tex. 472, 73 S.W. 368, 97 Am. St. Rep. 928; Bleakley v. Barclay, 75 Kan. 462, 89 P. 906, 10 L.R.A. (N.S.) 230; Lassiter v. Wilson, 207 Ala. 569, 93 So. 598; Kenner v. Kenner, 139 Tenn. 211, 201 S.W. 779, L.R.A. 1918E, 587.
Matt H. Murphy, of Birmingham, for appellee.
Witnesses having been examined orally before the trial court, his conclusion on the facts will not be disturbed unless plainly and palpably erroneous. Hess v. Hodges, 201 Ala. 309, 78 So. 85, L.R.A. 1918D, 858; Joiner v. Watkins, 186 Ala. 211, 65 So. 135; Hackett v. Cash, 196 Ala. 403, 72 So. 52; Hodge v. Joy, 207 Ala. 198, 92 So. 171; Andrews v. Grey, 199 Ala. 152, 74 So. 62; Clark v. Whitfield, 213 Ala. 441, 105 So. 202.
The general effect of the full-faith and credit clause of the Federal Constitution (article 4, § 1), as related to judgments, is that, when the judgment of a court of one state is pleaded in the courts of a sister state as the foundation of a right, and a duly authenticated transcript of the proceedings is offered in evidence to establish such right, such judgment is entitled to the same force and effect as evidence as it has in the state where rendered. Cole v. Cunningham, 133 U.S. 107, 10 S.Ct. 269, 33 L.Ed. 538; 15 R. C. L. pp. 927, 928, § 407, and authorities cited under note 16.
An exception to this general rule is that the status of citizenship of persons within a state is exclusively for that state to determine, and as to such matters the full-faith and credit clause of the Federal Constitution is without influence. Tilt v. Kelsey, 207 U.S. 43, 28 S.Ct. 1, 52 L.Ed. 95; 15 R. C. L. 926, § 404.
Courts of equity, in dealing with the custody of minors, give paramount consideration to the welfare of the child, viewed in the light of the conditions and circumstances surrounding at the time, and as a general rule judgments and decrees of this nature are not res judicata as to facts and conditions subsequently arising, and do not preclude the courts of the state in which they are rendered from further inquiry into the subject as between the same parties. Such seems to be the rule recognized by the courts of the state of Kansas, in which the judgment here pleaded was rendered in a divorce proceeding. In the Matter of Frank B. Bort, 25 Kan. 308, 37 Am. Rep. 255; Kirkbride v. Harvey, 139 Ala. 231, 35 So. 848; Murphree v. Hanson, 197 Ala. 256, 72 So. 437; Burns v. Shapley, 16 Ala. App. 297, 77 So. 447. Such judgment is entitled to no greater weight than this in the courts of a sister state under the full-faith and credit clause of the Constitution. Cole v. Cunningham, supra; 15 R. C. L. 940, § 417, and authorities there cited.
In the Kansas case just cited, the court, speaking through Mr. Justice Brewer:
"We understand the law to be, when the custody of children is the question, that the best interest of the children is the paramount fact. Rights of father and mother sink into insignificance before that. Even when father and mother are living together, a court" of equity "has the power, if the best interests of the child require it, to take it away from both parents, and commit the custody to a third person. In other words, a court of chancery stands as a guardian of all children, and may interfere at any time, and in any way, to protect and advance their welfare and interests. Now, in a divorce suit, the court is limited to the question, Which of the two parents is the better custodian of the children? The decision only determines the rights of the parties inter sese. But in this proceeding the question is: What do the best interests of the children require? Shall they be given to either party, Or shall the court place the custody with some other person?" In the Matter of Frank B. Bort, supra.
This holding is in accord with our decisions. Kirkbride v. Harvey, 139 Ala. 231, 35 So. 848; Burns v. Shapley, 16 Ala. App. 297, 77 So. 447; Sparkman v. Sparkman, ante, p. 41, 114 So. 580.
Burns v. Shapley, supra, differentiates itself from the case at bar. There the appellee had invoked the jurisdiction of the court of a sister state and procured a decree committing the custody of the children in question to him on condition that he keep them within the jurisdiction of the court. Immediately upon obtaining their custody and in contempt of the decree he removed them from that jurisdiction into this state. This fact being brought to the court's attention, the decree was modified, committing the custody of the children to the appellant, and without change of condition or circumstances affecting the welfare of the children, habeas corpus was brought by the appellant to recover the custody of the children, for the purpose of returning them to the state of their domicile from which they had been unlawfully removed. It was there held, in view of these circumstances, that the courts of this state, as a matter of comity would not inquire into their future welfare.
The petitioner, no doubt recognizing that the decree of the Kansas court is not controlling in this proceeding for the reasons before stated, does not seek to have it enforced according to its terms, but prays:
"That the court would enter its order and decree placing the care and custody of said child in the hands of your petitioner for such time and upon such conditions as the court may deem wise," etc.
To state the question otherwise, the proceedings in the divorce action and the several decrees of the Kansas court as to the custody of the child are not pleaded as the foundation of a right to have the child's custody committed to the petitioner, to insure the child's welfare, but the proceeding is, in effect, one to compel the defendant to allow the child to visit his father, who is seriously affected with heart trouble and partial paralysis, that is likely to cause death at any time. This picture is sufficient to provoke sympathy and should appeal strongly to the mother to allow this son to visit his father, but such consideration cannot enter into or be allowed to control the solemn judgments and decrees of courts of justice.
The case was presented to the trial court on record evidence and testimony given ore tenus, and the question presented was one of fact — Was it for the best interest of the child, in view of the conditions and circumstances of the parents, that his present status be disturbed?
The record evidence is not controlling, and, after careful consideration of the whole we are not able to say that the decree of the learned chancellor is not well grounded.
Affirmed.
SOMERVILLE, THOMAS, and BOULDIN, JJ., concur.