Ford v. Ford

Citation123 S.E.2d 33,239 S.C. 305
Decision Date15 November 1961
Docket NumberNo. 17850,17850
CourtUnited States State Supreme Court of South Carolina
PartiesBarbara D. FORD, Respondent, v. Herman A. FORD, Appellant.

Leatherwood, Walker, Todd & Mann, Greenville, Denny, Valentine & Davenport, Richmond, Va., for appellant.

Carter & Hill, Haynsworth, Perry, Bryant, Marion & Johnstone, Greenville, for respondent.

MOSS, Justice.

Barbara D. Ford, the respondent herein, and Herman A. Ford, the appellant herein, were married on March 16, 1952, in Richmond, Virginia. Three children were born of this marriage and they were at the time of the institution of this action seven, five and three years of age, respectively.

The respondent did, on August 10, 1960, commence this action in the Greenville County Juvenile and Domestic Relations Court seeking custody of the three minor children of the marriage. The complaint alleged that the children were residing with the respondent in Greenville County, South Carolina, and that it was for the best interest of the said minor children that their custody be awarded to her. It is further alleged that the appellant had been guilty of misconduct and was an unfit person to have custody of the said children. The answer of the appellant alleges that the appellant and respondent are living separate and apart on account of the misconduct of the respondent. It is further alleged that the respondent is not a fit or proper person to have the custody of the said minor children by reason of her misconduct. The answer further alleges that the appellant is entitled to the custody of the said minor children of the marriage, he being a fit and proper person to have such custody and is financially able to provide for the education, maintenance and support of the said children in a comfortable and desirable home in Sanford, North Carolina.

The answer further alleges that the appellant and respondent separated on August 25, 1959, and the respondent went to the home of her mother in Richmond, Virginia, the children remaining in North Carolina in the custody of the appellant. It is further alleged that on August 27, 1959, that the respondent took the children of the marriage from the State of North Carolina to the home of her other in Richmond, Virginia. It is further alleged that on August 28, 1959, the appellant did, in the Law and Equity Court of the City of Richmond, Virginia, file a petition for a Writ of Habeas Corpus directing the respondent to produce the bodies of the three children before the Court at a time and place to be specified and to do and receive what shall then and there be considered by the Court concerning said children, and that the care, custody and possession of the said children be awarded to the appellant. An Order awarding a Writ of Habeas Corpus was issued by the Law and Equity Court of Richmond, Virginia, on August 28, 1959, directing the respondent to have and produce the bodies of the said children before the Court on September 2, 1959, and to abide the direction of the Court as to the custody of said children. The respondent filed a Return to the Writ of Habeas Corpus alleging that she was a fit and proper person to have the custody of the said infant children. She asked that the Writ be discharged as having been improvidently issued without probable cause.

The answer of the appellant further alleged that during the pendency of the Habeas Corpus proceeding in the Law and Equity Court of the City of Richmond, Virginia, both parties being represented by competent legal counsel, an agreement was reached concerning the children of the marriage. Under the terms of the agreement, the appellant was given custody of the three children with the right to the respondent to have custody of the three children during the summer vacation from school and certain holiday periods. Upon the consummation of the aforesaid agreement reached between the parties, a 'Consent Dismissal' was had of the Habeas Corpus proceeding instituted by the appellant. The Order of Dismissal by the Law and Equity Court of the City of Richmond, Virginia, filed November 18, 1959, was as follows:

'It being represented to the court by counsel that the parties hereto have agreed concerning the custody of the infant children, it is ordered that this case be dismissed.'

The instant case was tried before the Honorable J. Wilbur Hicks, Judge of the Greenville County Juvenile and Domestic Relations Court, and on December 8, 1960, he issued his order awarding the custody of the children to the respondent, with the provision that the appellant 'shall have reasonable visitation rights and these shall include some holidays and school vacation periods and are to be agreed upon by the parties.' The appellant duly excepted to the order of the Judge of the Juvenile and Domestic Relations Court and alleged error, inter alia, (1) That the Judge erred in failing to hold that the agreement previously made between the parties, through their respective counsel, at a time when an action was pending in the Law and Equity Court of the City of Richmond, Virginia, determined the question of custody and was binding upon the parties. It was asserted that the respondent admitted the making of such agreement and acknowledged that she was represented in such proceeding by able and competent counsel. It was further alleged as error that the court failed to hold that the agreed Order of Dismissal of the Law and Equity Court of the City of Richmond, Virginia, was res judicata as to the issue of custody before this Court. (2) That the Judge erred in failing to hold that the said agreement between the parties and the aforesaid agreed Order of Dismissal was binding and res judicata. It was further submitted that the Juvenile and Domestic Relations Court of Greenville County must recognize, in accordance with the full faith and credit clause of the Constitution of the United States, the agreed Order of Dismissal of the Virginia Court and that such was res judicata, unless there was evidence of subsequent misconduct on the part of the appellant or a change of conditions warranting a change of the custody of the children. (3) That the Judge erred in awarding the custody of the children to the respondent and giving the appellant only visitation rights to be agreed upon by the parties.

The appeal from the order of the Judge of the Juvenile and Domestic Relations Court of Greenville County was heard by the Honorable John Grimball, presiding Judge, on January 9, 1961, at a special Equity term of the Court of Common Pleas for Greenville County, South Carolina.

By an order dated February 25, 1961, the presiding Judge overruled the provision of the order of the Juvenile and Domestic Relations Court of the extent that he awarded the custody of the three minor children jointly to the respondent and the appellant, placing the custody of the said children in the respondent during the normal school year, commencing in September and ending in the early part of June of each year. He awarded custody of the three minor children to the appellant during the normal school holiday months, commencing in the early part of June and ending in the early part of September of each year. This order provided further that the appellant should have the custody and control of the children during the normal Christmas holidays of each school year. It was further provided that during the time that either the respondent or appellant had custody, the other party should be permitted to see or visit with the children at reasonable times and places. The presiding Judge refused to hold as res judicata the custody agreement reached by and between the parties, as a result of which the Habeas Corpus proceeding instituted by the appellant in the Law and Equity Court of the City of Richmond, Virginia, for the purpose of obtaining a custody of the minor children of the parties, was dismissed. He likewise refused to give full faith and credit to the agreed dismissal order of the Virginia Court. Within due time the appellant gave notice of intention to appeal to this Court from the order of the lower Court. The appellant asserts that the trial Judge erred in refusing to hold as res judicata the 'Consent Dismissed' order of the Law and Equity Court of the City of Richmond, Virginia, which was made after the parties to this action had reached an agreement concerning the custody of the infant children here involved.

It is provided in Article IV, Section 1, of the Constitution of the United States, that:

'Full Faith and Credit shall be given in each State to the public Acts, Records, andJudicial Proceedings of every other State. And the Congress may by general Laws prescribed the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.'

In the case of Hamilton v. Patterson, 236 S.C. 487, 115 S.E.2d 68, 70, this Court said:

'* * * Where a judgment rendered by a court having jurisdiction of the cause and the parties is challenged in another State, 'the full faith and credit clause of the Constitution precludes any inquiry into the merits of the cause of action, the logic or consistency of the decision, or the validity of the legal principles on which the judgment is based.' Milliken v. Meyer, 311 U.S. 457, 61 S.Ct. 339, 342, 85 L.Ed. 278. 'Because there is a full faith and credit clause a defendant may not a second time challenge the validity of the plaintiff's right which has ripened into a judgment.' Magnolia Petroleum Co. v. Hunt, 320 U.S. 430, 64 S.Ct. 208, 214, 88 L.Ed. 149, 150 A.L.R. 413.

'This clause of the Federal Constitution U.S. Const. art. 4, § 1 and the Act of Congress which implements it 'require the judgments of the courts of one State to be given the same faith and credit in another State as they have by law or usage in the courts of the State rendering them.' Morris v. Jones, 329 U.S. 545, 67 S.Ct. 451, 454, 91 L.Ed. 488, 168 A.L.R. 656.'

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5 cases
  • Guardianship of Rodgers, In re
    • United States
    • Arizona Court of Appeals
    • October 8, 1965
    ...(1962); Frazier v. Merrill, 237 Ark. 242, 372 S.W.2d 264 (1963); Richter v. Harmon, 243 N.C. 373, 90 S.E.2d 744 (1956); Ford v. Ford, 239 S.C. 305, 123 S.E.2d 33 (1961), reversed on other grouns, 371 U.S. 187, 83 S.Ct. 273, 9 L.Ed.2d 240 (1962); Ogletree v. Crates, 363 S.W.2d 431 (Sup.Ct.Te......
  • Ford v. Ford
    • United States
    • U.S. Supreme Court
    • December 10, 1962
    ...would be unfair to the children and too harsh a rule to follow.' On appeal the Supreme Court of South Carolina reversed. 239 S.C. 305, 123 S.Ed.2d 33 (1961). That court, after a review of certain Virginia cases, 'If the respondent (the wife) here had instituted in the Courts of Virginia the......
  • Sayler v. Parler, 19437
    • United States
    • South Carolina Supreme Court
    • June 7, 1972
    ...requires a recognition of a custody judgment of a sister state. Ford v. Ford, 371 U.S. 187, 83 S.Ct. 273, 9 L.Ed.2d 240; 239 S.C. 305, 123 S.E.2d 33; Kovacs v. Brewer, 356 U.S. 604, 607, 78 S.Ct. 963, 965, 2 L.Ed.2d 1008; N.Y. ex rel. Halvey v. Halvey, 330 U.S. 610, 615--616, 67 S.Ct. 903, ......
  • Ford v. Ford, 18066
    • United States
    • South Carolina Supreme Court
    • May 6, 1963
    ...was entitled to full faith and credit in this State under Article IV, Section 1, of the Constitution of the United States, Ford v. Ford, 239 S.C. 305, 123 S.E.2d 33. The Supreme Court of the United States granted certiorari to consider the question of full faith and credit upon which we bas......
  • Request a trial to view additional results

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