Opinion
43473.
ARGUED MARCH 6, 1968.
DECIDED APRIL 2, 1968. REHEARING DENIED APRIL 16, 1968.
Adoption, etc. Richmond Superior Court. Before Judge Kennedy.
Harris, Chance McCracken, Kenneth R. Chance, for appellants.
William C. Calhoun, for appellee.
The trial court did not err in giving full faith and credit to the judgment of a South Carolina court awarding custody of the minor children to the natural mother where it appeared that the South Carolina court, having jurisdiction over the parties and subject matter, refused to recognize an earlier decree of the Georgia court declaring the petitioners to be the adoptive parents because of conclusive evidence showing that the Georgia court acted in reliance upon forged signatures of the father purportedly showing consent and service of process.
ARGUED MARCH 6, 1968 — DECIDED APRIL 2, 1968 — REHEARING DENIED APRIL 16, 1968 — CERT. APPLIED FOR.
This is a second proceeding in Richmond Superior Court by Louis G. Funderburg and Myrtis P. Funderburg, husband and wife, for the adoption of two minor children, Marty Allen Crawford and Melody Anne Crawford. The Funderburgs commenced this action in September 1967, as residents of Georgia, following an adverse decision in South Carolina, commenced against them while residing in South Carolina, refusing to recognize an earlier adoption decree of Richmond Superior Court and restoring the children to the natural mother, which the South Carolina Supreme Court affirmed on September 25, 1967. Wold v. Funderburg (S.C.), 157 S.E.2d 180. The natural parents of the children are John Allen Crawford and Donna Irene Wold, Crawford's former wife, now married to another. Mrs. Wold is the daughter of Louis G. Funderburg by a former wife.
The natural mother placed the children in the custody of the Funderburgs in 1963. On July 6, 1964, a decree of Richmond Superior Court declared the children to be the adopted children of the Funderburgs, and changed their surname from Crawford to Funderburg. The record supporting this decree includes individual statements of consent and acknowledgments purportedly signed by John Allen Crawford and Donna Irene Crawford.
In 1965 the mother challenged and sought to invalidate the 1964 adoption by a petition in equity in Richmond Superior Court, in which she asserted that neither she nor the father consented to the adoption, acknowledged service of process, or waived notice of hearing. The jury made no finding of fact with respect to any papers signed by the father of the children, but did find as a fact that two signatures in the record of the adoption proceedings, "which signatures purport to be the signatures of Donna Irene Crawford, are in fact the signatures of Donna Irene Crawford, who is now remarried and whose present name is Donna Irene Wold," and the court issued a decree on March 31, 1966, declaring her signatures valid.
In April or May of 1966 Mrs. Wold commenced an action in the Juvenile and Domestic Relations Court of Aiken County, South Carolina, naming the Funderburgs, then South Carolina residents, the children, and John Allen Crawford as defendants, and asking the court to "set aside" the adoption decree of the Georgia court and to award custody of the children to her. She alleged (1) that she did not consent, or, if she did sign any consent, her consenting signature was obtained by fraud, and (2) that the signature of the father evidencing consent was forged and that he never consented as required by the law of Georgia.
The Funderburgs denied the allegations and asserted res judicata by reason of the result of the equity suit in Richmond Superior Court in Georgia. The natural father denied any consent to the adoption in Georgia, alleging forgery with respect to his purported signature, and asked the court to declare the Georgia adoption void and to award exclusive custody of the children to the mother.
Notwithstanding Mrs. Wold's testimony to the contrary, the South Carolina trial court found that she did sign a statement of consent, but expressly made no finding as to procurement by fraud, duress, or undue influence, stating such a finding is not necessary for decision. The court did find, however, that John Allen Crawford did not consent to the adoption and that his purported signatures in the record of adoption were not genuine, relying on two letters purportedly written by Crawford showing his refusal, and the expert testimony of a former FBI examiner of questioned documents, who compared known exemplars to the questioned signatures. In its conclusions of law the court, among other things, determined that the adoption decree of the Georgia court, having been obtained without the consent of the father and without jurisdiction over the father, his purported signatures being fraudulent, was void and of no effect. The court declined to give full faith and credit to the Georgia adoption decree, rejected the plea of res judicata with respect to the 1965-1966 equity action as binding on Crawford, who was not a party thereto, or as preventing the maintenance of the action by the mother then pending in South Carolina, and awarded exclusive custody of the children to the mother.
The Supreme Court of South Carolina, in affirming the lower court on appeal, considered two issues — jurisdiction of the lower court of the subject matter, and whether the judgment of the Georgia court barred the plaintiff from maintaining the action in South Carolina under the principles of res judicata and estoppel, and resolved both issues adversely to the Funderburgs. Wold v. Funderburg, 157 S.E.2d 180, supra.
In opposing the second adoption proceeding in the lower court Mrs. Wold asked the court to give full faith and credit to the judgment of the Juvenile and Domestic Relations Court of Aiken County, South Carolina, and thus recognize her right to custody of the children. The parties submitted the case to the court on stipulation, and the Funderburgs appeal to this court from the judgment of Richmond Superior Court giving full faith and credit to the South Carolina judgment and awarding custody of the children to the mother.
The single enumeration is that "the court erred in holding that the judgment of the South Carolina court was entitled to full faith and credit so as to bar the petitioners' petition for adoption." The petitioners assert in their brief that "there is basically only one question . . . that being whether the consent to the [original] adoption proceeding that was signed by . . . [the natural mother] is viable and, therefore, binding" on her in the present action, and in this respect they rely on the Georgia statutory provision that "consent [if required as a condition precedent to adoption], when given freely, voluntarily, may not be revoked by the parents as a matter of right." See Code Ann. § 74-403.
If the South Carolina judgment is one which is entitled to full faith and credit we think it automatically disposes of this issue and of the case, for it unequivocally grants exclusive custody of the children to the mother, the father at that time having relinquished his parental rights, and thereby nullifies the effect of any prior inconsistent action by the mother, such as that shown by her consent to adoption previously given in the Georgia proceedings declared invalid. Or stated otherwise, if the petitioners are to be bound by the South Carolina judgment, they must recognize the presently existing right of the natural mother to exclusive custody of the children, and overcome this right by obtaining anew her written consent as a basis for further adoption proceedings. Moreover, recognition of the South Carolina judgment entitles the mother, shown by the petition in the present case to be a resident of Virginia, to remove the children to her home, thereby depriving the Georgia court of any jurisdictional basis for further adoption proceedings.
"A void judgment may be attacked in any court and by any person." Former Code § 110-701. "The judgment of a court of competent jurisdiction may be set aside by a decree in equity, for fraud, accident, or mistake, or the acts of the adverse party unmixed with the negligence or the fault of the complainant." Former Code § 110-710. These laws were repealed by the Civil Practice Act of 1966 (Ga. L. 1966, pp. 609, 691) effective on September 1, 1967 (Ga. L. 1967, pp. 8, 226, 250), but were in full force and effect when the mother commenced the South Carolina proceedings. Furthermore, Code § 110-709 provides that "The judgment of a court having no jurisdiction of the person or subject-matter, or void for any other cause, is a mere nullity, and may be so held in any court when it becomes material to the interest of the parties to consider it."
It conclusively appears from the opinion and judgment of the South Carolina trial court, based on the evidence adduced in the hearing, at which all parties were represented, that the Georgia court, in declaring the Funderburgs to be the adoptive parents of the children, acted in reliance upon forged signatures of the father purportedly showing his consent to adoption and his acknowledged service of process. Under the Georgia statute his consent was an essential prerequisite ( Code Ann. § 74-403) absent any showing that he had abandoned the child or lost custody within the purview of the statute, and nothing appears to indicate that the Georgia court in the original adoption proceeding acted in reliance upon anything other than purported actual consent. Had the truth been known to the Georgia court at the time, it would have precluded the adoption, or had the truth been thereafter demonstrated in a proper proceeding before a Georgia court, it would have necessitated a determination by such court that the decree was a nullity. We think a South Carolina court, having jurisdiction over the parties and the subject matter, as is clearly demonstrated in the record before this court, would have the same power. The opinion of the South Carolina Supreme Court (Wold v. Funderburg, 157 S.E.2d 180, supra) clearly shows the authority of the lower court to exercise equitable and legal powers to inquire into and adjudicate adoption and custody matters, including a collateral inquiry as to fraud in the procurement of the Georgia decree.
In a somewhat analogous situation arising in Georgia, involving an adoption decree of a Tennessee court, our Supreme Court held that "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." McAlhany v. Allen, 195 Ga. 150 (4) ( 23 S.E.2d 676). The McAlhany case cites with approval Brandon v. Brandon, 154 Ga. 661 (4) ( 115 S.E. 115) in which the court stated (at p. 667) that "This brings us to consider the effect of a judgment [of another State] granting a divorce and awarding the custody of children, which was based upon constructive service by publication, without actual notice to the nonresident 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)."
It is also equally clear that the courts of this State will apply the full faith and credit mandate of the Federal Constitution to the judgment of a court of competent jurisdiction of a sister State, awarding custody of a minor child, which is regular on its face and unimpeached for fraud, and that such a judgment may be modified only when it appears that there has been such a change in condition as would authorize the modification of a similar judgment rendered by the courts of this State. Peeples v. Newman, 209 Ga. 53 (1) ( 70 S.E.2d 749); Belden v. Strickland, 218 Ga. 105 ( 126 S.E.2d 670); Ferster v. Ferster, 220 Ga. 319 (2) ( 138 S.E.2d 674). The recognized qualification applies to a condition subsequent and thus limits the enforcement of the previous decree in a prospective sense only, whereas, in the present adoption proceeding, the petitioners, in order to prevail, seek to avoid and go behind the South Carolina decree to meet an essential condition, without any showing of any legal basis whereby the Georgia court can refuse to apply the mandate of the Federal Constitution. The South Carolina decree is regular on its face, shows jurisdiction over the parties, and is unimpeached for fraud. Under these circumstances the trial court properly gave full faith and credit to the judgment of the South Carolina court and in recognition thereof awarded custody of the children to their natural mother.
Judgment affirmed. Pannell and Deen, JJ., concur.