Griffin v. Griffin

• Decision Date: 03 February 1920
• Parties: GRIFFIN v. GRIFFIN.
• Court: Oregon Supreme Court

187 P. 598

95 Or. 78

GRIFFIN v. GRIFFIN.

Supreme Court of Oregon

February 3, 1920

Department 2.

Appeal from Circuit Court, Yamhill County; H. H. Belt, Judge.

Habeas Corpus by Bertram S. Griffin against Emma A. Griffin for the custody of Vivian Griffin and Bernice Griffin, minor children. Writ dismissed, and custody awarded to defendant mother, and the plaintiff father appeals. Affirmed.

This is a proceeding in habeas corpus for the custody of two minor children. The trial court dismissed the writ and awarded the custody of the minor children to the mother, Emma A. Griffin. Bertram S. Griffin, the father, appeals.

The parties were married in the state of California May 8, 1904. Two children, Vivian Griffin, now about 13 years of age, and Bernice Griffin, now about 11 years of age, were born of this union. April 15, 1913, Emma A. Griffin commenced a suit for divorce against her husband, the appellant herein, in the superior court of the state of California for the county of Del Norte. On August 18, 1913, an interlocutory decree of divorce was entered in the cause, and in such interlocutory decree the two children were awarded to the mother, with permission to the father to visit them at certain times. May 20, 1914, both parties being present in court and represented by their respective attorneys, a hearing was had on the application of the appellant herein for a modification of the interlocutory decree of divorce, and on May 29, 1914, a decree was entered in the divorce action modifying the original interlocutory decree, and in the modification it was, among other things, provided:

"That the care, custody, and control of said children * * * shall remain with the mother, except as otherwise herein provided. * * * The said children shall not be removed from nor leave the jurisdiction of this court [Del Norte county Cal.] until their majority, unless upon the written permission of this court. * * * The father has the absolute right to have said children or either of them by himself any place he wishes in Del Norte county, Cal.," at certain times therein specified; and then certain regulations were provided about notice to the mother. "If either of the children become sick or ill or injured, the father must be immediately notified," and he shall have the right to visit them, unless the attending physician refuses the visits; "that the final decree of divorce (if ultimately granted in this manner) shall have incorporated within it the above conditions as stated unless a further modification thereof shall take place before said final decree is made."

June 12, 1914, Mrs. Griffin obtained written permission from the judge of the California court and took the children to McMinnville, Or. The written order of the judge reads thus:

"The plaintiff above mentioned is granted permission to remove Vivian Griffin and Bernice Griffin, minor children of the above parties, from the jurisdiction of this court, but to return them to their present place of abode in good time for the opening of the grade school in Crescent City for the 1914 fall term."

November 24, 1914, the judge of the California court made an order requiring the children to be returned to the jurisdiction of the court, and this order was served on the respondent in the state of Oregon. In January, 1915, the appellant filed a petition in the California court for an order modifying the modification of the original interlocutory decree of divorce so far as it pertained to the custody of the children, and January 30, 1915, service of this petition and a citation was attempted to be made on the respondent in Yamhill county Or., which service was proven by the certificate of the sheriff of Yamhill county. The citation required Mrs. Griffin to appear and answer the petition within ten days after service thereof. The record does not show that any notice of the proceeding was given to Mrs. Griffin's attorney of record. The citation was served upon her parents in Del Norte county, Cal. A hearing was had by the court in the absence of respondent, and an order for a second modification of the interlocutory decree was made on February 25, 1915, in which the care, custody, and control of the children was ordered given to the father, for the reason that Mrs. Griffin and the children had not returned to the state of California. July 9 1915, the superior court made its final decree, in which the last modification was referred to.

Walter L. Tooze, Jr., of McMinnville, and Oscar Hayter, of Dallas for appellant.

James E. Burdett, of McMinnville (Rollin Laird, on the brief), for respondent.

BEAN, J. (after stating the facts as above).

In November, 1916, this appellant commenced this proceeding for the custody of the children, which he claims was awarded to him by the final decree in the divorce case in California. The proceedings in the divorce action in California were pleaded and properly authenticated and brought into the record; also several sections of the statute of California are produced and contained in the record, a portion of which we will hereafter notice.

The first and one of the important questions in the case is as to the effect of the decree in the divorce action in the state of California. This embraces the inquiry as to what the legal provisions of that decree are. Decrees awarding the custody of minor children, the issue of a marriage, rendered at the time of a divorce, can hardly anticipate the changes which may occur in the condition of the parents, or their habits and character and their fitness and ability to care for the children and provide for their nurture and education. Such changes, and other sufficient reasons, may render it necessary for the good of the children that their custody be changed. Hence most of the statutes on the subject in the states of the Union authorize the court to vary or modify its decree in this respect. A decree fixing the custody of a child is, however, final when the conditions existing at the time of its rendition remain the same, and should not be changed except when conditions have become different since the decree, and then only for the best interests of the child. 9 R. C. L. 476, § 291; Merges v. Merges, 186 P. 36; Rowe v. Rowe, 76 Or. 491, 149 P. 533; Karren v. Karren, 25 Utah, 87, 69 P. 465, 60 L. R. A. 294, 95 Am. St. Rep. 815; Hardin v. Hardin, 168 Ind. 352, 81 N.E. 60; People ex rel. Allen v. Allen, 40 Hun. 611; Id., 105 N.Y. 628, 11 N.E. 143; Wilson v. Elliott, 96 Tex. 472, 73 S.W. 946, 75 S.W. 368, 97 Am. St. Rep. 928, followed upon appeal in 32 Tex.Civ.App. 483, 75 S.W. 368; nett v. Bennett, Deady,

299, F. Cas. No. 1318.

There is some conflict in the authorities on the question as to the extraterritorial effect of a judgment awarding the custody of children upon a divorce of the parents. A majority of the cases seem to hold, and we think this is in consonance with the better reason, that in the absence of fraud, or want of jurisdiction affecting its validity, a judgment dissolving the bonds of matrimony between a husband and wife and awarding the custody of the children of the marriage should be given full force and effect in other states as to the right to the custody of the children at the time and under the circumstances of its rendition, although such a decree has no controlling effect in another state as to facts and conditions arising subsequently to the date of the decree, and the courts of the latter state may in proper proceedings award the custody otherwise than pursuant to the original decree, upon proof of matters subsequent to the decree which justify such change in the award in the interest of the welfare of the children. 9 R. C. L. 477, § 293; Mylius v. Cargill, 19 N.M. 278, 142 P. 918, L. R. A. 1915B, 154, and note, Ann. Cas. 1916B, 941; Re Alderman, 157 N.C. 507, 73 S.E. 126, 39 L. R. A. (N. S.) 988, and note page 990; Seeley v. Seeley, 30 App. D. C. 191, 12 Ann. Cas. 1058; Re Bort, 25 Kan. 308, 37 Am. Rep. 255.

A judgment or decree of a court of one state awarding the custody of minor children in a divorce case is not res judicata in a proceeding in a court of another state, except as to facts and conditions before the court upon the rendition of the former decree. As to facts and conditions arising subsequently to such an award, the decree has no extraterritorial force, and the courts of other states are not bound thereby. A decree of a court of one state ordering the custody of a child is not binding upon the courts of another state under the full faith and credit clause of the federal Constitution after the child has become domiciled in the latter state. Such a decree as to a child has no extraterritorial effect beyond the borders of the state of its rendition. The courts of the second state will not remand the child to the jurisdiction of another state, especially where it is against the true interests of the child. The reason given for this rule is the fact that the children are the wards of the court, and the right of the state rises superior to that of the parents. Therefore, when a child changes his domicile from one state to another and becomes a citizen of the second state, he is no longer subject to the authority and supervision of the courts of the first state. 15 R. C. L. p. 940, § 417.

The same rule appears to be applied where the writ of habeas corpus is used, not strictly as a writ of liberty according to the original meaning of the term, but only indirectly and theoretically as such, and as a means of ascertaining and adjudicating the rights of conflicting claimants to the care and custody of a minor child. 12 R. C. L. 1255, § 73; Cormack v. Marshall, 211 Ill. 519, 71 N.E. 1077, 67 L. R. A. 787, 1 Ann. Cas. 256, and note; Brooke v Logan, 112 Ind. 183, 13 N.E. 669, 2 Am. St....