Kovacs v. Brewer

• Decision Date: 26 May 1958
• Docket Number: No. 200,200
• Parties: Aida S. KOVACS, Petitioner, v. George A. BREWER, Sr
• Court: U.S. Supreme Court

356 U.S. 604

78 S.Ct. 963

2 L.Ed.2d 1008

Aida S. KOVACS, Petitioner,

v George A. BREWER, Sr.

No. 200.

Argued April 3, 1958.

Decided May 26, 1958.

Mr. Louis Haimoff, New York City, for petitioner.

No appearance for respondent.

Mr. Justice BLACK delivered the opinion of the Court.

On January 17, 1951, a New York court granted George Brewer, Jr., a decree of divorce from his wife, now Aida Kovacs. Custody of their five-year-old daughter, Jane, was awarded to George Brewer, Sr., the paternal grandfather, pending discharge of Brewer, Jr., from the Navy. As contemplated by the decree, the grandfather removed the child to his home in North Carolina where she has since resided. In November 1954 the mother asked the New York divorce court to modify its decree and award her custody of the child. Although the father and grandfather presented affidavits through counsel challenging the mother's claim, the court granted custody to her. In modifying its decree the court apparently relied, in part, on findings that the grandfather was ill with heart trouble and diabetes and that the living accommodations which he was able to provide for the child were not as suitable as those then offered by the mother.

The grandfather refused to surrender the child, but the mother took no steps to enforce her custody award until February 1956—14 months after the decree had been modified. At that time she brought the present action in a North Carolina state court to secure the child.¹ She offered a certified copy of the New York decree and asserted that it was 'entitled to full faith and credit in the courts of North Carolina except as to matters showing changed circumstances since the date of such decree.' The father and grandfather again challenged her right to the child. They presented numerous affidavits attesting to facts which they argued demonstrated that the child's best interests would be served by leaving her in North Carolina with the grandparents. Many of these facts and been presented to the New York court at the time the divorce decree was modified, but new evidence was also offered concerning the child's surround- ings, her school and church experiences and her life in general, particularly with reference to the period that had elapsed between the time when the divorce court modified its decree and the date of the North Carolina proceedings.²

After hearing the case on affidavits, stipulations and the pleadings, the trial court made numerous findings. Among other things, it determined that for more than a year immediately preceding the hearing the grandfather had required no medical care for heart or diabetic ailments and was able to work and to properly care for his granddaughter. The court also found that a 17-year-old stepson, who had been residing in the grandfather's home at the time the New York decree was modified, had moved from the home thus leaving more space for the remaining occupants and giving the grandfather a better opportunity to provide for the grandchild. On the basis of these and other findings the trial court concluded that it was 'not bound by or required to give effect to the decree of the Court of the State of New York made in 1954' and that the welfare of the child demanded that she remain under the grandfather's custody in the environment to which she had become accustomed.

On appeal the North Carolina Supreme Court approved the trial court's findings, and without specifying any particular reason upheld its 'conclusion of law.' The court then went on to declare, seemingly as an alternative ground of decision, that the New York decree was not binding because the divorce court had no jurisdiction to modify its original custody award after the child had become a resident and domiciliary of North Carolina. 245 N.C. 630, 97 S.E.2d 96. We granted certiorari to consider the claim that the North Carolina courts had failed to give full faith and credit to the judicial proceedings of another State. 355 U.S. 810, 78 S.Ct. 27, 2 L.Ed.2d 28.

In this Court the petitioner, Mrs. Kovacs, contends (1) that the New York divorce court had jurisdiction to modify its decree by awarding her custody of the child, (2) that in any event the question of jurisdiction was res judicata in the North Carolina courts because both the father and grandfather had appeared in the New York proceeding, and (3) that the North Carolina courts failed to give the custody decree, as modified, the faith and credit required by the Federal Constitution and statute.³ She argues that the North Carolina courts were obligated to give the custody decree the same effect as it had in New York, a question which we reserved in New York ex rel. Halvey v. Halvey, 330 U.S. 610, 615 616, 67 S.Ct. 903, 906—907, 91 L.Ed. 1133. As presented, the case obviously raises difficult and important questions of constitutional law, questions which we should postpone deciding as long as a reasonable alternative exists.⁴

Whatever effect the Full Faith and Credit Clause may have with respect to custody decrees, it is clear, as the Court stated in Halvey, 'that the State of the forum has at least as much lee-way to disregard the judgment, to qualify it, or to depart from it as does the State where it was rendered.' 330 U.S. at page 615, 67 S.Ct. at page 906. Petitioner concedes that a custody decree is not res judicata in New York if changed circumstances call for a different arrangement to protect the child's health and welfare.⁵ In the courts below the question of changed circumstances was raised in the pleadings, considerable evidence was introduced on that issue, and the trial court made a number of findings which demonstrated that the facts material to the proper custody of the child were no longer the same in 1956 as in 1954 when the New York decree was modified. And though it is not clear from the opinion of the North Carolina Supreme Court, it may be, particularly in view of this background, that it intended to decide the case, at least alternatively, on that basis. Under all the circumstances we think it advisable to remand to the North Carolina courts for clarification, and, if they have not already decided, so they may have an opportunity to determine the issue of changed circumstances. Cf. State of Minnesota v. National Tea Co., 309 U.S. 551, 60 S.Ct. 676, 84 L.Ed. 920; Spector Motor Co. v. McLaughlin, 323 U.S. 101 105, 65 S.Ct. 152, 154, 89 L.Ed. 101. If those courts properly find that changed conditions make it to the child's best interest for the grandfather to have custody, decision of the constitutional questions now before us would be unnecessary. Those questions we explicitly reserve without expressly or impliedly indicating any views about them.

The judgment of the Supreme Court of North Carolina is vacated and the cause is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

Judgment vacated and cause remanded with directions.

Mr. Justice FRANKFURTER, dissenting.

At stake in this case is the welfare of a child. More immediately the question before us is what restriction, if any, does the Constitution of the United States impose on a state court when it is determining the custody of a child before it. The contest here for the child's custody is between her mother and her grandparents: a mother whom a New York court, in divorce proceedings while the child was present in New York, did not find to be a suitable custodian, and the grandparents, living in North Carolina, to whom the New York court decreed the custody of the child and with whom the child, now twelve years of age, has lived happily for the last six and one-half years. A second New York decree, rendered while the child was in North Carolina, awarded her custody to the mother. A North Carolina court, after a full hearing, with all the relevant parties, including the child, before it, has found that the child's welfare precludes severance of the child's custody from the grandparents.

The facts are these: Petitioner and George Brewer, Jr., son of respondent, were married in New York City in 1945. A child, Jane Elizabeth, was born to them in 1946. In 1950 Brewer, Jr., instituted a divorce action against petitioner in New York, and on January 17, 1951, the New York court granted him a divorce. Finding that 'the best interests of the child' so required, that court awarded custody of Jane Elizabeth to respondent until Brewer, Jr., should be discharged from the Navy, at which time he might assume sole custody. The child was at that time both domiciled and resident in New York. After the decree was rendered petitioner went into hiding with the child. Respondent secured control of the child by writ of habeas corpus after she was found in September 1951 and took her to his home in North Carolina, where the child has been living with respondent and his wife until the present time. Brewer, Jr., the child's father and respondent's son, is still in the Navy.

In 1954, after having married one Kovacs, petitioner applied to the New York court for a modification of the divorce decree so that custody of the child be awarded to her. In December 1954 the New York court, through a judge other than the one who had rendered the original decree, awarded to petitioner custody of the child, who was not before the court but in North Carolina, on the ground that '(t)he accommodations and surround(ing)s of the mother are acceptable for the welfare of the infant and would be more desirable for an eight year old girl, whose bringing up belongs to her mother.'

Respondent refused to deliver the child to petitioner as directed by the New York decree. In February 1956 petitioner brought this suit in a North Carolina court, seeking to have respondent compelled to surrender custody of the child to petitioner and to have custody awarded to petitioner by the court. After a full hearing on the merits of the question of the child's proper custody, at which petitioner, respondent,...