Yarborough v. Yarborough
| Decision Date | 27 June 1932 |
| Docket Number | 13436. |
| Parties | YARBOROUGH v. YARBOROUGH. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Spartanburg County; T. S Sease, Judge.
Action by Sadie Yarborough, by guardian ad litem, etc., against W A. Yarborough. From the judgment in favor of plaintiff defendant appeals.
Affirmed.
Stephen Nettles, of Greenville, for appellant.
Lyles & Daniel, of Spartanburg, for respondent.
This is one of those unlovely cases in which the dissensions of parents find their worst results in the unhappiness and hardships of the children born of the unhappy union.
W. A Yarborough and Susie Blowers were married at Spartanburg, S. C., September 3, 1904. They had one child, who is the plaintiff in this action. In 1927 Mr. and Mrs. Yarborough separated; he lived in Atlanta, Ga., and she and the child in Hendersonville, N.C. September 21, 1927, he brought suit in the superior court of Fulton county, Ga., seeking a total divorce from his then wife. She appeared, answered, and filed a cross-bill praying that a total divorce be granted her.
By a consent order of date November, 1927, W. A. Yarborough was required to pay to his wife, as temporary alimony, $125 per month, and for support of the child $75 per month. By an order of date February 29, 1928, this amount was reduced to $100 per month, and by an order of December 7, 1928, this sum was reduced to $50 per month for the months of December, 1928, and January, February, and March, 1929, and thereafter to be restored to $100 per month.
January 17, 1929, the first verdict was rendered in favor of a total divorce between the parties. On the same day Judge Pomeroy passed an order by the terms of which W. A. Yarborough was required to pay to Susie Yarborough $1,750 and to R. D. Blowers, as trustee for Sadie Yarborough, $1,750; "Upon the compliance with this order by the plaintiff he shall be relieved of all payments of alimony and counsel fees."
By the provisions of the order the child remained in the custody of her mother, but it was directed that her father should have the right to see her at the times and under the conditions set out in the order.
The payments were made after some delay.
July 7, 1929, the second and total divorce verdict was rendered. The same day Judge Pomeroy passed an order granting to each party a total divorce with the privilege of remarrying. Two months thereafter W. A. Yarborough remarried.
August 10, 1930, Sadie Yarborough, a minor, brought this action by her guardian ad litem, against her father demanding of him the lump sum of $1,000 and $125 per month thereafter for her support and maintenance.
By his answer defendant sets up as a bar to this action the provisions of the order of the superior court of Fulton county in the divorce suit, by which he was required to pay to R. D. Blowers as trustee of Sadie Yarborough, plaintiff in this action, the sum of $1,750, as permanent alimony for her (which payment he made); he further pleaded that the matter of his liability for the support and maintenance of his daughter during minority has been finally and completely adjudicated by the judgment of the superior court of Fulton county, Ga., which judgment is binding on the courts of this state under article 4, § 1, of the Federal Constitution; and that matter is now res adjudicata.
Further answering the defendant alleged that the superior court of Fulton county obtained full and exclusive jurisdiction of this plaintiff in the divorce suit between her parents, as well as the matter of his obligations to support her, and if she has any present claim against him it can only be heard in that court, and the court in which the action is brought is without jurisdiction to entertain the action.
Further answering the defendant alleged that he is now, and at the time of the order for the payment of the $1,750 for alimony was, a man of very moderate means, and that the said sum was and is reasonable provision for the maintenance and support of plaintiff.
Further answering, defendant alleges that by the terms of the order of the Georgia court he was given the right to see his daughter at intervals; that on the occasion of his last visit she was so bitter, insulting, and disrespectful in her attitude and language, and wrote him such a painful and uncalled for letter, that in spite of his affection for her, he has not persisted in trying to see her; and he alleges that if he were otherwise liable to support her he should not be called on to do so in these circumstances.
Further answering, defendant alleges that he has remarried; that if she will enter his house as a dutiful daughter, he and his wife will welcome her, and so long as she maintains that attitude will support her to the best of his ability.
The issues thus joined were referred to the master to take the testimony; upon the report thereof the case was heard by Judge Sease. August 21, 1931, his honor filed his decree, from which this appeal comes to us.
The defendant was a resident of the state of Georgia. Jurisdiction was obtained in the court of Spartanburg county by the attachment of certain property in this state and Spartanburg county which defendant owned, and by serving him personally with the summons and complaint, in the county of Spartanburg.
Judge Sease found the issues made by the pleadings against the contentions of the defendant and held that the sum of $50 per month was a fair and just allowance to plaintiff for her education, maintenance and support. He ordered further that R. D. Blowers, plaintiff's maternal grandfather, be appointed trustee to receive and handle the moneys ordered to be paid to plaintiff, the trustee to give bond in the sum of $2,000. He ordered, further, that the sums of money in the hands of the clerk of court, and on deposit to the joint credit of the attorneys for the parties to the proceeding be paid to the trustee when he qualified, from which fund the trustee shall expend for the maintenance, support, and education of the plaintiff not exceeding $50 per month, unless a further order of the court be obtained. He allowed plaintiff's attorneys a fee of $300 to be paid by the trustee from the funds ordered to be turned over to him.
From this decree defendant appeals by ten exceptions which charge error to the trial judge in relation to the effect of the judgment of the Georgia court in the divorce suit between defendant and plaintiff's mother as a bar to this action, and as rendering the issues in this case res adjudicata; error in not sustaining the plea to the jurisdiction of the South Carolina court; error in not holding that plaintiff's conduct toward him absolved him from any obligation to support her; error in holding that the $1,750 paid to plaintiff under the order of the Georgia court was en tirely inadequate for the support, maintenance, and education of plaintiff; error in ordering the attached funds to be turned over to Blowers as trustee, instead of permitting defendant to furnish bond, to secure the monthly payments to plaintiff; error in holding that the case was heard by agreement of counsel without a jury.
Appellant's counsel states the issues for argument to be:
I. "The judgment of the Georgia Court in the divorce suit is res adjudicata of the daughter's right to support from her father."
II. "Plaintiff's conduct towards her father, as well as her attitude at the trial, made it inequitable, under the circumstances of the case, to require him to provide for her further support."
Respondent's counsel have not contested the contention of appellant's counsel that the judgment of the superior court of Fulton county is binding upon the courts of this state under section 1, article 4, of the Constitution of the United States. Therefore we confine our consideration of that judgment to an analysis of its provisions in order to determine whether that court had jurisdiction of this plaintiff and whether its order determined and decided the issues made in the present case, and thus rendered them res adjudicata.
Let it be borne in mind that plaintiff, an infant, was not a party to the action between her parents for divorce, in which the judgment relied upon by defendant, was rendered, in that she had never been served with any summons and complaint. No guardian ad litem had been appointed to represent her. Defendant relies upon section 2981 of the Georgia Civil Code 1926, which was introduced in evidence, and which is in these words:
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Cribbs v. Floyd
... ... Van ... Matre v. Sankey, 148 Ill. 536, 36 N.E. 628, 23 L.R.A ... 665, 39 Am.St.Rep. 196; and see Yarborough v ... Yarborough, 290 U.S. 202, 54 S.Ct. 181, 78 L.Ed. 269, 90 ... A.L.R. 924, overruling Yarborough v. Yarborough, 168 ... S.C. 46, 166 S.E ... ...
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