Dixon v. Dixon

• Decision Date: 11 December 1909
• Citation: 74 A. 995,76 N.J.E. 364
• Parties: DIXON v. DIXON.
• Court: New Jersey Court of Chancery

74 A. 995

76 N.J.E. 364

DIXON

v. DIXON.

Court of Chancery of New Jersey.

Dec. 11, 1909.

Action by William H. Dixon against Josephine T. Dixon. Plaintiff obtained a modification of a decree awarding the custody of children to defendant. Petition by plaintiff to punish defendant for contempt in disobeying the decree as modified. Denied.

See, also, 71 N. J. Eq. 281, 71 Atl. 1133.

R. V. Lindahury and J. Holmes, for petitioner. Gilbert Collins, for defendant.

STEVENS, V. C. This case comes up on petition. The petitioner asks the court to punish the defendant, Mrs. Dixon, for her contempt in disobeying an order, made July 24, 1907, which directed that the two children of petitioner and defendant, whose custody was continued in defendant, should be sent with their nurse to visit their father two months in each year; one month during the summer or early autumn at his country home in Pittsfield, Mass., and one month during the winter at his home in New York City. The petitioner also asks that the general custody of the children be transferred to him.

At the time of the institution of this proceeding by the father, in June, 1905, he was living in New York, and his wife, the defendant, was living separate from him, in New Jersey. The children were then two and three years old. Their custody was awarded to the mother, but the father was given the right to visit them. After that the mother went to Maine, and on the father's application the original order was modified by that of July 24, 1907. Mrs. Dixon's answer to the present application is that the order last mentioned has been superseded by an order in a divorce suit instituted by her in Maine, made on August 30, 1909, awarding the sole custody of the children, pendente lite, to her. The original order of this court was appealed from and affirmed. Dixon v. Dixon, 71 N. J. Eq. 281, 71 Atl. 1133. The second order, made after careful consideration of the question then raised, was acquiesced in and obeyed until the Maine divorce proceeding was instituted. That question was whether this court continued to have Jurisdiction over the children after they had been taken by their mother to Maine. The decision was in favor of the jurisdiction. 72 N, J. Eq. 588, 66 Atl. 597. The question now to be considered is twofold. First, is the order of July 24, 1907, entitled to full faith and credit under the federal Constitution? Second, if it is, does the subsequent order of the justice of the Supreme Court of Maine supersede it?

There can be no doubt that the order of July 24, 1907, is within the protection of that clause of the federal Constitution which declares that "full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state." Discussion is unnecessary, for the decisions are all one way. The rule is that in any controversy between the parents relating to the custody of their children the award made by a competent tribunal is res adjudicata, and cannot thereafter be questioned on the same state of facts. Mercein v. People ex rel. Barry, 25 Wend. (N. Y.) 64, 35 Am. Dee. 653; Matter of Lederer, 38 Misc. Rep. 668, 78 N. Y. Supp. 236; Bleakley v. Barclay, 75 Kan. 462, 89 Pac. 906, 10 L. R. A. (N. S.) 230; Brooke v. Logan, 112 Ind. 183, 13 N. E. 660, 2 Am. St. Rep. 177; Slack v. Perrine, 9 App. Cas. D. C. 128; State v. Baird, 19 N. J. Eq. 481-486; Stetson v. Stetson, 80 Me. 483, 15 Atl. 60. Speaking of a child whom it was awarding to the custody of a mother living in Massachusetts, Danforth, J., in the Maine case last cited, said: "Though she [the mother] may not personally be within the jurisdiction of the court, the subject-matter is, so that the judgment of the court will be valid and binding upon her, and by the provisions of the Constitution of the United States may be enforced against her, though in another state" But the adjudication is an adjudication upon the issue presented, and upon that only. So far as children are concerned, the situation is, or may be, constantly varying. The parent fit to have the custody of his children to-day may, by reason of changed circumstances, become unfit to-morrow. The above rule does not prevent the courts of the state within whose limits the children may be from considering whether a change in the situation may not call for a new disposition. But the changing circumstances must be, obviously, those that affect the children—not those that concern the parents. To illustrate by the case in hand. In her petition, presented to the Maine tribunal, Mrs. Dixon says that she lived with her husband until May, 1904, and that while so living he treated her with extreme cruelty, whereby her health and life became endangered. It is manifest that evidence bearing upon his disposition and upou his conduct towards his wife might have an important bearing upon his fitness to have the custody of his children, either for two months in the year or for any lesser period, and that it must or should have been considered by this court when the order of July 24, 1907, was made. By reason of the effect of the doctrine of res ad-judicata this evidence could not be made the basis of an independent adjudication by another court. If this were not so, the rule established by the decisions to which I have referred would be nullified. But, on the other hand, it is equally manifest that it might be shown that, since the date of the prior adjudication, the father had so conducted himself as to have become unfit to associate With his children; that any association with him would be Injurious to their morals or welfare.

While this court, therefore, as has been decided, may still have jurisdiction, if it sees fit to exercise it, it does not follow that the courts of Maine may not also have jurisdiction, as long as the children are actually present in that state, and it must be conceded that the Maine tribunals are, for the time being, in a position to exercise it more beneficially and effectually than this court can. But. when the mother refuses to allow her children to visit their father, the question for the courts of both jurisdictions is not whether, in view of ail that has occurred at...