Barrett v. Barrett

• Decision Date: 14 August 1973
• Docket Number: No. 19676,19676
• Citation: 198 S.E.2d 532,261 S.C. 111
• Court: South Carolina Supreme Court
• Parties: James D. BARRETT, Respondent, v. Mary Ann BARRETT (Bowser), Appellant.

Page 532

198 S.E.2d 532

261 S.C. 111

James D. BARRETT, Respondent, v. Mary Ann BARRETT (Bowser), Appellant.

No. 19676.

Supreme Court of South Carolina.

Aug. 14, 1973.

Watkins, Vandiver, Kirven, Long & Gable, Anderson, for appellant.

Abrams, Bowen & Townes, Greenville, for respondent.

BUSSEY, Justice:

This is an appeal from a clearly erroneous order of the Greenville County Family Court ordering a change of the permanent custody of the children of the parties hereto. The parties were long time residents of Ohio but separated some time in 1970, the respondent husband returning to Greenville which was his early childhood home. On April 22, 1971, the Court of Common Pleas of Cuyahoga County, Ohio, granted the appellant wife a divorce from her husband on the ground of 'gross neglect of duty'. At the time, the parties had three children, Deborah, age 10; Andrea, age 8; and Franklin who was nearly 2. The parties agreed that the wife would have the care, custody and control of the minor children, but the husband to have the temporary custody of them during the summer vacation, with the stipulation that he should come to Cleveland to pick up the children and return them no later than one week prior to school registration. Such custody agreement was incorporated in the divorce decree and the husband was ordered to pay the wife $15.50 per week for the support of each child, plus all necessary medical expenses.

On or about June 27, 1971, the husband went to Cleveland, got the children and took them to Greenville for the summer vacation. Instead of returning the children to Cleveland at the end of the summer in accordance with the agreement and divorce decree, the husband, on August 25, 1971, instituted this action seeking temporary and permanent custody of the three minor children. The record is not clear, but inferentially, an ex parte order was issued granting the husband temporary custody.

The wife was never personally served with any notice of pleadings whatsoever, and the children not being returned, she came to Greenville and sought the aid of the sheriff, seeking to regain her children on the strength of the Ohio decree, and through the sheriff's office learned of the instant proceeding.

A hearing on the husband's petition for permanent custody was not held until June 20, 1972, and not until November 3, 1972 did the court issue its order granting the permanent care, custody and control of the children of the parties to the respondent.

In the fairly recent case of Sayler v. Parler, 258 S.C. 514, 189 S.E.2d 294 (1972), we held as follows:

'. . . the judgment of a court of one state as to custody of children, after a hearing on the merits, must in the absence of fraud or want of jurisdiction be given the same full effect in every other state, as to the facts before the court at the time such judgment was rendered. Of course, such judgment is not entitled to any greater force or effect elsewhere than in the state of rendition and does not prevent a change in custody by another court based upon a subsequent and substantial change of condition.'

In Ohio, the doctrine of res judicata applies to that portion of the divorce decree that grants custody, and the...