Dees v. McKenna, 22

• Decision Date: 04 March 1964
• Docket Number: No. 22,22
• Citation: 134 S.E.2d 644,261 N.C. 373
• Parties: Lester A. DEES v. Bette Anne Veazey McKENNA (Dees).
• Court: North Carolina Supreme Court

Page 644

134 S.E.2d 644

261 N.C. 373

Lester A. DEES v. Bette Anne Veazey McKENNA (Dees).

No. 22

Supreme Court of North Carolina.

March 4, 1964

William S. Privott, Edenton, and John H. Hall, Elizabeth City, for plaintiff.

Pritchett & Cooke, Windsor, for defendant.

DENNY, Chief Justice.

The question for determination on this appeal is whether or not the court below committed error in ruling that the order entered in the Superior Court of Orange County, California, on 21 June 1963, awarding the custody of the children involved, is res judicata, and that the Superior Court of Chowan County, North Carolina, was without jurisdiction to consider or determine custody of the children involved.

We do not think the jurisdiction of the Superior Court of Chowan County depends on whether or not the California court obtained personal service on the plaintiff herein. However, our investigation of the statutory provisions of Section 410 of the California Code of Civil Procedure, together with the affidavits filed in the California proceeding, leads us to the conclusion that the California court did obtain personal service on the plaintiff herein, defendant in the California action.

Likewise, it would seem that the California court did not lose jurisdiction over these children if they were subject to its jurisdiction at the time of the institution of the action but were removed from the jurisdiction before the California decree was entered. Lennon v. Lennon, 252 N.C. 659, 114 S.E.2d 571; In re Orr, 254 N.C. 723, 119 S.E.2d 880; Maloney v. Maloney, 67 Cal.App.2d 278, 154 P.2d 426.

In In re Orr, supra, the wife was domiciled in North Carolina, the children were residing with her, and the father was domiciled in the State of Florida. The father was personally served in a habeas corpus proceeding brought to determine custody of the children, and the father was ordered not to remove the children from this State. In violation of the order he removed the children from North Carolina. From an order awarding the custody of the children to the petitioner, respondent's wife, he appealed. Rodman, J., speaking for the Court, said: 'Respondent contends his flagrant violation of the lawful order of the court not to remove the children from its jurisdiction deprived the court of the right to hear and determine what would best promote the welfare of those children. The contention is wanting in merit. The right to hear and decide came into being the instant the writ was served on respondent. He could not thereafter deprive the court of the jurisdiction so acquired.'

In the instant case, the order which the California court held was personally served on the defendant (plaintiff herein) in California, contained an express order restraining the plaintiff (defendant there) from removing the children involved from the State of California.

Even so, the jurisdiction of the Superior Court of Chowan County to entertain an action for custody of the children involved depends upon whether or not we are bound to give full faith and credit to the California decree, even if it be conceded that court had jurisdiction and the right to enter the decree which it did enter on 21 June 1963.

In New York ex rel. Halvey v. Halvey, 330 U.S. 610, 67 S.Ct. 903, 91 L.Ed. 1133, the parties were married in 1937 and lived together in New York until 1944. In 1938 a son was born. Marital troubles developed. In 1944 Mrs. Halvey, without her husband's consent, left home with the child, went to Florida and established her residence there. In 1945 she instituted a suit for divorce in Florida. Service of process on Mr. Halvey was obtained by publication, he making no appearance in the action. The day before the Florida decree was granted, Mr. Halvey, without the knowledge or approval of his wife, took the child back to New York. The next day a decree was entered by the Florida court, granting Mrs. Halvey a divorce and awarding her permanent custody and control of the child.

Thereupon, Mrs. Halvey brought a habeas corpus proceeding in the New York Supreme Court, challenging the legality of Mr. Halvey's detention of the child. After hearing, the New York Court ordered '(1) that the custody of the child remain with the mother; (2) that the father have rights of visitation including the right to keep the child with him during stated vacation periods in each year, and (3) that the mother file with the court a surety bond in the sum of $5,000, conditioned on the delivery of the child in Florida for removal by the father to New York for the periods when he had the right to keep the child with him.' 185 Misc. 52, 55 N.Y.S.2d 761.

The ruling was upheld by the Appellate Division, 269 App.Div. 1019, 59 N.Y.S.2d 396, and the Court of Appeals, 295 N.Y. 836, 66 N.E.2d 851. The case was heard in the Supreme Court of the United States on a petition for writ of certiorari, which was granted because it presented an important problem under the Full Faith and Credit Clause of the Constitution, Article 4, Section 1.

The United States Supreme Court held that, under the Florida law the decree could be modified "on altered conditions shown to have arisen since the decree, or because of material facts bearing on the question of custody and existing at the time of the decree, but which were unknown to the court * * *.'

'The result is that custody decrees of Florida courts are ordinarily not res judicata either in Florida or elsewhere, except as to the facts before the court at the time of judgment. * * *

'Respondent did not appear in the Florida proceeding. What evidence was adduced in that proceeding bearing on the welfare of the child does not appear. But we know that the Florida court did not see respondent nor hear evidence presented on his behalf concerning his fitness or his claim 'to enjoy the society and association' of his son. * * * It seems to us plain, therefore, that under the rule of Meadows v. Meadows [78 Fla. 576, 83 So. 392], * * * the Florida court would have been empowered to modify the decree in the interests of the child and to grant respondent the right of visitation, if he had applied to it rather than to the New York court and had presented his version of the controversy for the first time in his application for modification.

'So far as the Full Faith and Credit Clause is concerned, what Florida could do in modifying the decree, New York may do. * * * But a judgment has no constitutional claim to a more conclusive or final effect in the State of the forum than it has in the State where rendered. * * * Whatever may be the authority of a State to undermine a judgment of a sister State on grounds not cognizable in the State where the judgment was rendered (Cf. Williams v. State of North Carolina, 325 U.S. 226, 230, 65 S.Ct. 1092, 1095, 89 L.Ed. 1577, 1581, 157 A.L.R. 1366), it is clear that the State of the forum has at least as much leeway to disregard the judgment, to qualify it, or to depart from it as does the State where it was rendered.'

In the foregoing case the Court expressly reserved decision on the question whether the Florida court had jurisdiction over the Halvey child after his removal from that State before the custody decree was entered. It appears that the Supreme Court of the United States has not expressly decided that question, notwithstanding the numerous State decrees holding that where the State court once obtains jurisdiction it retains it, even though the child be removed from the State before the entry of the custody decree. Lennon v. Lennon, supra; In re Orr, supra; Maloney v. Maloney, supra. In the Halvey case, Frankfurter, J., in a concurring opinion, said: 'Since the jurisdiction of the Florida court in making the custodial decree is doubtful, New York was justified in exercising its power in the interest of the child.'

In Stack v. Stack, 189 Cal.App.2d 357, 11 Cal.Rptr. 177, upon a motion made on behalf of the father to modify a former decree awarding custody of the child to the mother, the Court said: 'The only 'rule' consistently applied is that the court may modify or vacate its order 'at any time.' Civ.Code, § 138; cf. Exley v. Exley, supra, 101 Cal.App.2d , 835, 226 P.2d 662.

'The mother's principal reliance is upon the change of circumstances 'rule.' As we have seen, it is no longer a rule, if it ever was one.'

In the case of Frizzell v. Frizzell, 158 Cal.App.2d 652, 323 P.2d 188, the Court said: 'Questions of custody, support and education of children are addressed to the sound discretion of the trial court. * * *

'The rule that there must be a showing of 'changed circumstances' has no application where the trial court has modified a decree. That rule only applies where the trial court has refused to modify a decree and it is contended an abuse of discretion occurred. To show such abuse there must be a showing of changed circumstances. Kelly v. Kelly, 75 Cal.App.2d 408, 171 P.2d 95; Dotsch v. Grimes, 75 Cal.App.2d 418, 171 P.2d 506.'

In the case of Urquhart v. Urquhart, 196 Cal.App.2d 297, 16 Cal.Rptr. 469, the Court said: 'The change of circumstances rule is no longer a rule even if it ever was one. The only rule consistently applied is that the court may modify or vacate its order at any time. Civ.Code, § 138; Stack v. Stack, 189 Cal.App.2d 357, 11 Cal.Rptr. 177.' See also Stewart v. Stewart, 41 Cal.2d 447, 260 P.2d 44.

In Peterson v. Peterson, 64 Cal.App.2d 631, 149 P.2d 206, the Court said: 'In custody cases the underlying principle, paramount to all others, is the welfare and best interest of the child. * * * Therefore an application for a modification of an award of custody must be addressed to the sound legal discretion of the trial court, * * * subject only to the qualifications contained in section 138 of the Civil Code.'

Section 138 of the Civil Code of California, in pertinent part, reads as follows: 'In actions for divorce or for separate maintenance the court may, during the pendency of the action, or...