Ferster v. Ferster
| Decision Date | 28 September 1964 |
| Docket Number | Nos. 22657,22658,s. 22657 |
| Citation | 220 Ga. 319,138 S.E.2d 674 |
| Parties | Charles B. FERSTER v. Marilyn B. FERSTER. Marilyn B. FERSTER v. Charles B. FERSTER. |
| Court | Georgia Supreme Court |
Syllabus by the Court
1. Neither the motion to dismiss or the assignment of error in the cross bill complaining of the substitution of the stenographic report of the evidence after tender of the bill of exceptions is meritorious since the certificate of the trial judge clearly states a brief of evidence was presented and the reason why the substitution was made.
2. The mandate of Art. IV, Sec. 1 of the United States Constitution (Code § 1-401) requires courts of Georgia to give full faith and credit to a judgment of a Maryland court. This is true although it is shown that the Supreme Court of that State has such judgment under review.
3. Where a father in a divorce decree is awarded custody of the minor children, and the mother is enjoined from removing them from the State, it is error for the court to award her custody when in defiance of the court and disregard for the rights of her husband under the court decree she surreptitiously carried them out of the State, together with the fact that she is residing in the same State as the man with whom she committed adultery in the State where the decree issued.
This is the second appearance of this case in this court, the previous ruling in Ferster v. Ferster, 219 Ga. 543, 134 S.E.2d 600, having been on the refusal of the lower court to grant full faith and credit to a temporary order of a Maryland court awarding temporary custody of minor children to the father.
The case involves a petition for habeas corpus by a father to obtain custody of his minor children from the mother, the children having been awarded to him by a Maryland court. A cross action was filed by the mother alleging unfitness, abandonment, lack of jurisdiction of the Maryland court, and that the welfare of the children demands that they remain with the mother. After a hearing, the lower court ruled that the legal custody had been in the father by reason of the decree of the Maryland court, both parties are fit and proper persons, but 'the court finds as a matter of fact that there has been a material change of circumstances' since the final decree and 'under all facts and circumstances, including but not limited to the fact that the children are all of tender age this material change of circumstances does in fact affect the welfare of the children.' The court, after finding legal custody in the father, merely granted him visitation rights, and the exception is to this final judgment.
Edenfield, Heyman & Sizemore, William H. Major, Jack P. Turner, Atlanta, for plaintiff in error.
Hewlett & Ward, Cullen Ward, Florence Hewlett Dendy, Atlanta, for defendant in error.
1. The certificate of the trial judge reflects that the bill of exceptions, including a brief of evidence, was tendered in the time provided by law but returned to counsel because he, the trial judge, 'preferred to have such transcript of the oral testimony prepared by the court reporter rather than briefed by counsel,' hence any delay in the review of this case is due to the preference of the trial court, and there is no merit in the motion to dismiss the bill of exceptions. Nor is there any merit in the cross bill raising the same question in the lower court.
2. 'Full Faith and Credit shall be given in each State to the public Acts, Records, and Judicial Proceedings of every other State.' Code § 1-401 (Constitution of the United States, Art. IV, Sec. 1). This provision of the Constitution is unambiguous, and it embraces all public acts, records and judicial proceedings. As applied to judgments it includes all. But this does not authorize a State court to enter any judgment that might or can conflict with a judgment of a court of another State. For illustration, this court accorded full faith and credit to the judgment of the Tennessee court in so far as could be done without conflicting with it in Cureton v. Cureton, 132 Ga. 745, 65 S.E. 65. There the judgment awarded separate maintenance to the wife and children of $40 per month, but it expressly retained jurisdiction in the chancellor and authorized him to change or suspend the monthly payments. The Georgia court awarded the wife and children $720 representing accrued and unpaid monthly payments of $40 but declined to award her judgment for future $40 monthly payments since they were, by the terms of the judgment, left to the discretion of the chancellor. Following that decision, this court in Ferster v. Ferster, 219 Ga. 543, 134 S.E.2d 600, refused to enforce a temporary judgment of the Maryland court awarding custody of the children here involved because that judgment was expressly made subject to the further order of that court, and there was no evidence to show that a further order of the court had not issued. We did not disobey the plain mandate of the Constitution, we accorded full faith and credit, but we respected the express reservation in the judgment and refused to render any judgment in conflict therewith. To accord full faith and credit does not require the remotest degree of contradiction but instead, full respect for all the terms of the judgments, including all reservations of jurisdiction to change or amend.
But the judgment with which we are now concerned is unconditional, without reservation of jurisdiction and is unqualifiedly final. Undoubtedly, if the English language has any meaning whatever, this judgment comes squarely under the above quoted language of the Constitution. It is and must be given full faith and credit as demanded by the Constitution. But in addition to the solid constitutional reason for so respecting this judgment, there is another valid reason, which is comity. It would be an unwarranted affront to...
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