40 A.2d 754 | Conn. | 1944
The parties were formerly husband and wife. Two children, girls, were born of the marriage and at the time of the trial they were respectively eleven and one-half and nine and one-half years old. In 1938 the parties were divorced by a decree of the Supreme Court of New York, in which state they then resided. The divorce judgment gave to each *382 party custody of the children for a portion of the year. Thereafter various proceedings were had in the New York courts with reference to this part of the decree, and it was modified in certain respects. The last modification was by a decree of the Appellate Division of the Supreme Court rendered June 28, 1942, on an appeal from an order made by the Supreme Court on the application of the plaintiff. The decree as modified contained these provisions: The defendant was awarded sole custody of the children; the plaintiff was given the right to have them at her residence during the last half of the Christmas and Easter [school] vacations, for one week-end each month during the school year and during the summer school vacation except for one week in July and one week in August, when they were to be with the defendant; and the plaintiff was given the right to see them at any time while they were with the defendant, in case of their illness or other emergency. The plaintiff remarried in 1941 and thereafter became and is a resident of Connecticut. She brought this action to the Superior Court in order to obtain a judgment which would give her sole custody of the children. They were produced in court at the time of trial. The court gave judgment for the defendant, holding, among other conclusions, that, as no material change in circumstances affecting the welfare of the children could be found, it was without jurisdiction to give the plaintiff relief. From that judgment the plaintiff has appealed.
The trial court states in the finding that the plaintiff, on the trial, conceded that such a material change of circumstances must be shown as a basis for the exercise of jurisdiction by it. This statement is assigned as error, but we do not read the plaintiff's brief as questioning its substantial correctness as a general rule. It is supported by the great weight of authority. *383
Notes, 20 A.L.R. 815, 72 A.L.R. 441, 116 A.L.R. 1299. There is considerable divergence in the opinions as to the reason upon which the rule rests. In our judgment the correct basis is this: An order in a divorce proceeding granting the custody of a minor child of the parties to one or the other determines a relative status; 2 Beale, Conflict of Laws, 120.13; and a judgment having such a result is ordinarily within the constitutional provision that full faith and credit must be given in each state to the judicial proceedings of every other state. Const. U.S. Art. IV, 1; Morrill v. Morrill,
The power of the courts of New York to modify an order concerning the custody of the children of the parties made in a divorce action is found in 1170 of *384
the Civil Practice Act. 6 Gilbert-Bliss Civil Practice of New York, 1943 Sup., p. 101. That section provides that the court shall, in a decree for a divorce, give such directions as justice requires for the custody, care, education and maintenance of any children of the marriage, and, where the action is brought by the wife, for her support, and that the courts may, after final judgment, "annul, vary or modify such directions." As far as material to the issues before us, this section has not been changed since 1895; 2 Stover, N.Y. Ann. Code of Civil Procedure (6th Ed.), p. 1858; and in so far as it involved an order for the support of the wife, its provisions were before us in Sistare v. Sistare,
We have found no decision of a New York court which directly holds that an order for the custody of children, made in a divorce action under the section of the Civil Practice Act in question, is subject to *385
modification only where there has been a material change of circumstances, although that is strongly suggested in Matzke v. Matzke,
Incidentally, we note that if we laid out of consideration the provision of the constitution and approached the question from the standpoint of common law, as a number of courts have done, we would reach the same conclusion. Apart from the constitutional provision, it is the duty of our courts to give effect to a properly rendered judgment of the courts of another state, and to regard as concluded any issues settled by *386
that judgment. Willetts' Appeal,
The trial court has found the facts upon which it based its conclusion that there was no material change of circumstances affecting the welfare of the children which would enable it to grant relief to the plaintiff from the effect of the New York order. In the assignments of error she seeks many changes in and additions to the finding, but as these assignments are not even mentioned in her brief, we treat them as abandoned. Eitingson v. Stamford,
The plaintiff claims that to give effect to a provision in a divorce decree rendered in another state which awarded the custody of the children of the parties would be contrary to the public policy of this state, because by our statute the father and mother of a legitimate minor are constituted joint guardians of the person of the child. General Statutes, 4794. But that provision is qualified by the power given our *388 own courts, in actions between husband and wife, to make orders as to the custody of children of the marriage. General Statutes, 5186. To recognize a direction in a judgment of divorce rendered in another state which determines the custody of the children in no way counters, but rather accords with, the public policy of this state.
We have decided this case upon the theory upon which it was tried and has been presented to us. The conclusions of the trial court justified its denial of relief to the plaintiff. The record suggests, however, several questions not raised by the parties. One of these we note. The finding that there had been no material change of circumstances would not go to the jurisdiction of the court to hear and determine the controversy; but, so far as the record shows, when this action was begun the children were in this state only on a temporary visit to their mother, under the permission given in the order of the New York court, and we are not to be understood as deciding whether under such circumstances the trial court had jurisdiction to render any judgment between the parties determining the right to their custody. See State ex rel. Larson v. Larson, supra, 491; Restatement, Conflict of Laws, 32, 117.
There is no error.
In this opinion the other judges concurred.