Ford v. Ford, 18066

• Decision Date: 06 May 1963
• Docket Number: No. 18066,18066
• Citation: 242 S.C. 344,130 S.E.2d 916
• Court: South Carolina Supreme Court
• Parties: Barbara D. FORD, Respondent, v. Herman A. FORD, Appellant.

Page 916

130 S.E.2d 916

242 S.C. 344

Barbara D. FORD, Respondent, v. Herman A. FORD, Appellant.

No. 18066.

Supreme Court of South Carolina.

May 6, 1963.

Leatherwood, Walker, Todd & Mann, Greenville, Denny, Valentine & Davenport, Richmond, 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. Three children were born of this marriage, having been born in June 1953, March 1955, and March 1957, the child born in 1955 being a girl and the other two boys. The controversy here is over the custody of these three children.

It appears that the parties, in 1959, were domiciled in Sanford, North Carolina, where they lived in a comfortable rented home and were in the course of planning the construction of their own home. On August 25, 1959, as a result of an adulterous affair on the part of the wife which would have entitled the husband to an absolute divorce under the law of this state, as well as that of most, if not all, other jurisdictions, the parties separated and the wife went to the home of her mother in Richmond, Virginia, the children remaining in North Carolina in the custody of the husband. On August 27, 1959, the wife took the children from North Carolina to the home of her mother in Richmond, Virginia, without the permission of the husband.

The first litigation between these parties concerning the custody of these children took place in Richmond, Virginia, when the husband, on August 28, 1959, filed in the Law and Equity Court of Richmond, Virginia, a petition for habeas corpus alleging that the wife had the children and that she 'has recently been guilty of acts which were not only of the nature that would justify the petitioner seeking a divorce from her, but which render her unfit to have custody of said children.' It was further alleged that the husband was a fit and proper person to have such custody and the best interests of said children would be promoted by them being forthwith returned to his care, custody and control. The wife answered the petition alleging that she was a proper person to have custody of the children and asking that the writ of habeas corpus be dismissed.

Thereafter, negotiations took place between the parties, both being represented by able counsel, and they agreed that the husband was, with minor exceptions, to have custody of the children during the school year and that the wife was to have custody during summer vacations and on some holidays. When notified of this agreement, the Richmond Court entered an order dismissing the case upon the representation that the parties had agreed concerning the custody of the infant children. Thereafter, the wife, by her adulterous conduct having forfeited her right to live in the marital domicile in Sanford, North Carolina, and be supported by her husband, came, in January 1960, to Greenville, South Carolina, where she rented an apartment and, after completing a course at a business college, obtained employment and went to work to support herself.

On or about June 20, 1960, the husband, pursuant to the agreement entered into in Richmond, delivered, or caused to be delivered, the children to the wife in Greenville. On or about July 13, 1960, she sought to commence proceedings against the husband with respect to the custody of the children in the Juvenile and Domestic Relations Court of Greenville County, but did not succeed in obtaining service on the husband, and thereafter, on August 10, she caused to be served upon the husband process when he came to Greenville for the purpose of communicating with his children about the recent death of his mother. The wife in her complaint alleged that she was a proper person to have custody and that her husband was not. She did not mention in her complaint the Richmond litigation, the agreement entered into, or any change of condition whatsoever subsequent to the agreement and dismissal of the suit in Richmond.

The husband, by way of answer, charged that the wife was not a fit and proper person to have custody of the children because of her adulterous conduct during the summer of 1959, and further asserted that the husband was a fit and proper person to have the custody. As a further defense, the husband alleged that the wife had violated and breached the agreement made between the parties with reference to the custody of the children, and had also violated the duly issued order of the court in Richmond, Virginia, made pursuant to said agreement. The case came on for trial before the judge of the Juvenile and Domestic Relations Court of Greenville County on October 24, 1960, and on December 8 the judge filed an order in which he concluded that it was to the best interests of the children that their custody and control be awarded to the mother. He rejected the husband's argument that the order of dismissal in the Virginia court should be treated as res judicata. On appeal the Court of Common Pleas concluded that the best interests of the children required that the wife have custody during the school months and the husband during the other parts of the year, in effect, inverting the arrangement previously made in the parents' agreement. The Circuit Court further held that the court was not bound by the dismissal in the habeas corpus proceedings in Virginia, which was based on the parents' agreement.

On appeal, this court reversed the holding of the lower court and held that the 'dismissed agreed' order of the Virginia Court entered in the habeas corpus proceeding against the wife upon agreement as to custody constituted a judgment on the merits barring subsequent action for the same cause and was res judicata in Virginia where rendered, and accordingly, 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 based our decision. 369 U.S. 801, 82 S.Ct. 642, 7 L.Ed.2d 549. Thereafter, this case was argued orally before such court on November 15, 1962, and was decided on December 10, 1962. The Supreme Court held that under the Virginia law an order by which a father's habeas corpus proceeding seeking custody of his minor children is dismissed, upon agreement of the parties concerning the custoy of the children, is not res judicata and South Carolina was not required to give full faith and credit to such order. Accordingly, our decision was reversed and remanded to us, the court saying:

'We hold that the courts of South Carolina were not precluded by the Full Faith and Credit Clause from determining the best interests of these children and entering a decree accordingly. In holding otherwise, the South Carolina Supreme Court was in error. The case is reversed and remanded to that court for further proceedings not inconsistent with this opinion.' Ford v. Ford, 371 U.S. 187, 83 S.Ct. 273, 9 L.Ed.2d 240.

The appeal now before us relates only to the provision of the decree with respect to the custody of the three children of the parties to the action. The appellant husband asserts the lower court erred in awarding the custody of the three minor children to the wife during the normal school year, the opposite of the agreement previously made between the husband and wife, setting forth several assignments of error with respect thereto.

We have held in numerous cases that the welfare of the children, and what is for their best interest, is the primary, paramount, and controlling consideration of the court in all controversies between parents over the custody of their minor children. Koon v. Koon, 203 S.C. 556, 28 S.E.2d 89; Powell v. Powell, 231 S.C. 283, 98 S.E.2d 764; Moore v. Moore, 235 S.C. 386, 111 S.E.2d 695; and Ex Parte Atkinson, 238 S.C. 521, 121 S.E.2d 4. Our statute, Section 31-51 of the 1952 Code, puts the father and mother upon parity with respect to the legal right of custody of their children and, further expressly provides, as all of our pertinent decisions hold, that the welfare of the children is the first consideration of the court.

The difficulty is not in the recognition of the foregoing principles, but in the application thereof to the facts of a given case, and determining what is for the best interests of the children involves a consideration of all of the circumstances of the particular case and, usually, many factors. Before proceeding to apply the aforesaid principles to the instant case, it is, of course, appropriate to set forth in detail the facts disclosed by the record at the time of the trial.

The children were in the actual custody of the husband in the home in Sanford, North Carolina, those of school age being in school there. In the home the husband had, in addition to a servant, a very competent lady of excellent repute, a Mrs. Perry, aged 52, who lived in the home and cared for the children. Mrs. Perry had raised two fine children of her own, and, in addition to caring for the children of the parties, operated a kindergarten which she had been operating for some time before taking the position with the husband in this case. The husband had a substantial position in the tobacco industry and a very adequate income. During two months of the year his work hours were from 7:30 in the morning until 5:30 in the afternoon, and the rest of the time the husband set his own hours, and usually got home from work around 2:30 in the afternoon, never later than 4:30 or 5, after leaving home in the morning at 8:30.

Prior to the estrangement of the parties, the husband had been called upon to travel considerably in his work, but had been successful in eliminating most of his travel so that he could be at home with the children. The new home which the parties were...