154 Ga. 661 | Ga. | 1922
(After stating the foregoing facts.) This case was a habeas-corpus proceeding brought by Katie Brandon, his divorced wife, against Paul Brandon, for the custody of their minor
What force and effect should that portion of this decree, by which the custody of this child was awarded to the mother, have in this State ? Does -it conclude the father, if nothing has transpired since its rendition to make the mother an unfit person to have its custody? Where husband and wife were domiciled in this State, ancffthe husband left the wife and acquired in good faith, after a lapse of five years, a domicile in another State, where he obtained a judgment of divorce based upon-constructive, and not actual, service of process on the wife, this court held that such judgment was not entitled to obligatory enforcement in Georgia, under the full-faith-and-credit clause of the United States Constitution (Civil Code of 1910, § 6672) ; but that under the general law governing the comity of nations, in a proper case, the judicial proceedings of another State will be enforced in this State, pro
But such decree can not anticipate changes which may occur in the condition of the parents, or in their character and fitness for the care of their children. A decree in a divorce suit, granted by a court having jurisdiction of the subject-matter and of the parties, and awarding the custody of a child to one parent, is at best but
of the decree, is involved. Williams v. Crosby, 118 Ga. 296 (45 S. E. 282); Barlow v. Barlow, 141 Ga. 535 (81 S. E. 433, 52 L. R. A. (N. S.) 683); Milner v. Gatlin, 143 Ga. 816 (85 S. E. 1045, L. R. A. 1916B, 977); Gillens v. Gillens, 148 Ga. 631 (97 S. E. 669).
This brings us to consider the effect of a judgment granting a divorce and awarding the custody of children, which was based upon constructive service by publication, without actual notice to the non-resident defendant. This court has held that such a judgment will not be regarded as a conclusive adjudication of the disposition of the child, where the evidence shows that the judgment was obtained by fraudulent representations in order to confer jurisdiction upon the court rendering the judgment; and that such judgment can be collaterally attacked. Matthews v. Matthews, 139 Ga. 123 (76 S. E. 855); Solomon v. Solomon, 140 Ga. 379 (78 S. E. 1079).
This brings us to1 consider the effect of such a decree upon the right of the father to the custody of his minor child, when the child was not in the State whose court rendered the same, at the time of its rendition, but was with the-father in this State at such time. If this child had been residing with the mother in Ohio at the time of the rendition, in that State, of the decree of divorce in favor of the mother upon constructive service, such decree might be binding and conclusive upon the father in this habeas-corpus proceeding brought by the wife in this State to secure the custody of the child from the father. Wakefield v. Ives, 35 Iowa, 238. It has been held that action for divorce is a proceeding in rem, so far as it affects the status of the parties and the custody of their minor children within the jurisdiction of the court, and that service of the summons by publication is good. Estate of Newman, 175 Cal. 218, 7 Am. St. R. 146. Where, however, the child was living with the father in this State at the time of the rendition of the decree of divorce, awarding the child’s custody to the mother, the court was without jurisdiction to award the custody of the child to the mother, such decree being based upon service by publication alone on the father. Kline v. Kline, 57 Iowa, 386
But it may be said that at the time the wife started her divorce suit in Ohio this child was with her in that State, and for that reason the court had jurisdiction of the child. The child’s presence in that State was only temporary, and such temporary, residence of the child did not give the Ohio court jurisdiction. Lanning v. Gregory, 100 Tex. 310 (99 S. W. 542, 10 L. R. A. (N. S.) 690, 123 Am. St. R. 809).
The father of a' child born in wedlock is its natural guardian, and as such was formerly entitled to its custody and control. Taylor v. Jeter, 33 Ga. 195 (81 Am. D. 202). Now he has no such prima facie right. Ga. Laws 1913, p. 110. The domicile of a minor is that of his father. Jackson v. So. Flour &c. Co., 146 Ga. 453 (91 S. E. 481). The appointment, by the probate court of Chambers County, Alabama, of a guardian for two minors residing at the time in this State was void, because the court had no jurisdiction of their persons. Boyd v. Glass, 34 Ga. 253 (89 Am. D. 252). So the Ohio court had no jurisdiction of the person of this minor, and so much of the divorce decree as awarded its possession to the mother is void for want of such jurisdiction. Lack of jurisdiction may be shown as to the subject-matter, or the person, or, in proceedings in rem, as to the res. McCauley v. Hargroves, 48 Ga. 50 (15 Am. E. 660); Davis v. Albritton, 127 Ga. 518 (56 S. E. 514, 8 L. R. A. (N. S.) 820, 119 Am. St. R. 352). So we are of the opinion that the decree of the Ohio court, so far as it sought to award the custody of this child to the mother, was not binding upon the father, and did not prelude him from asserting his legal right to the child’s custody. As the court below held that this decree was conclusive upon the father, and did not award the custody of the child upon a general consideration of the welfare of the child, we feel constrained to reverse the judgment awarding the child to the mother.
In view of the above ruling, the court below erred in rejecting evidence offered by the father to show his good character, his
When the court below announced its decision, awarding the child to the mother, who resides in Ohio, and who was temporarily in Georgia to attend the trial of this proceeding, counsel for the defendant requested the court to pass such order of supersedeas as would preserve the status, until the decision could be reviewed. This the court refused, and error was assigned on this ruling. “ The policy of the law is against allowing the status to be changed until the final termination of a case in the court of last resort.” Gustoso Cigar Mfg. Co. v. Ray, 117 Ga. 565 (43 S. E. 984). The proper practice, in a case where irreparable injury may result, by carrying the judgment instantly into effect, is, upon notice being given to the court that a bill of exceptions wall be filed, to allow a reasonable time for this to be done, before the judgment is carried into effect. Lindsey v. Lindsey, 14 Ga. 657. The court erred in permitting the immediate execution of its judgment awarding the custody of this child, pending appeal, to the mother who lived out of this State. Page v. Page, 166 N. C. 90 (81 S. E. 1060).
Judgment reversed.