48 S.E.2d 822 | Ga. | 1948
Where a final divorce decree awarding custody of minor children has been entered in Georgia, which decree contains no inhibition against removing the children from the jurisdiction of this State, and subsequently to such decree one of the parents to whom custody of a minor child has been awarded establishes residence in a foreign State, such foreign State acquires jurisdiction over any new questions concerning the custody, control, and general welfare of said minor child; and the courts of this State, therefore, have no jurisdiction to entertain a petition brought by the other parent to modify the original decree, so as to deprive the non-resident parent of custody of said child, based upon allegations of unfitness of said non-resident parent to retain such custody.
With respect to the question of continuing jurisdiction, after a decree by a Georgia court has been entered awarding custody of children in a divorce case, it is the general rule that "the duty of the State and the jurisdiction of its courts are continuing, unless and until voluntarily released, or until suchjurisdiction is lost in some way." (Italics ours.) King v.King,
This court, in Milner v. Gatlin,
139 Ga. 109 (2) (76 S.E. 860 ), has in principle passed upon the precise question although under somewhat different circumstances. In that case a divorce was obtained in Texas and the custody of the child of the marriage was awarded by the Texas court to the father, who thereafter moved to Georgia. The mother of the child, still a resident of Texas, brought suit in Texas to modify the original decree on the ground of changed conditions, and succeeded in revoking that part of the original decree awarding custody of the child to the *6 father. The mother thereupon instituted habeas corpus proceedings in Georgia and attempted to set up the reformed Texas decree to establish her right to the custody of said child. On an appeal by the mother, this court said: "Is the [Texas] decree of reformation a valid judgment At the time it was entered the father and the child were domiciled in Georgia, and this fact raises the question of the jurisdiction of the [Texas] court to make the second decree. . . Every State has the right to determine the marital status of its citizens, and the right to make such decision draws to it the right to dispose of all ancillary matters, such as the custody and support of children when the marital relation of the parents is dissolved. And it may be conceded that such a judgment may be modified or amended after the term at which it was rendered, in a proper case, but it does not follow that after a judgment of divorce has been rendered, awarding the custody of a child of the marriage to one of the parties, who thereafter changes his domicile and that of the child by removal to another State, the court still retains absolute control over the res [italics ours] or the parties by virtue of the original judgment, so as to give jurisdiction to authorize a modification on the merits, vitally affecting the domestic status of the non-resident parties. The judgment in this case did not forbid the removal of the child from the State of Texas or the jurisdiction of the court. The father was free to take up a domicile in Georgia at his pleasure, and, there being no inhibition against bringing his minor child to Georgia, the domicile of the father became the domicile of the infant. When the father took up his domicile in Georgia he was entitled to the custody of his infant child in his possession, both on account of the parental relation and the judgment of the Texas court. Whatever right the Texas court may have had to vacate or amend its judgment so as to affect the marital status of the parties, it was without power to fix a new status for the child, who was not within its jurisdiction at the time the judgment of reformation was rendered. The courts of one State have no power to change the status of citizens of another State." The court then ruled that the fact that the father, resident of Georgia, had been personally served would not require a different judgment, and concludes that the Texas court had no jurisdiction over the father *7 or his child, "to affirmatively fix the domestic status of the child after they became domiciled in this State," and "it is for this reason that the latter judgment [of modification] does not come within the purview of the full faith and credit clause of the Federal constitution."
Manifestly, since under the above ruling of the Supreme Court, the Georgia court in this case has lost jurisdiction of theres, that is, as set forth in that decision, it retains no jurisdiction to "fix the domestic status of the child," after it and its parent by becoming domiciled in another State, had become subject to the jurisdiction, rules, and the law of the foreign State governing such matters, the parties themselves could not by consent confer such jurisdiction upon our courts. Therefore the ruling in the above-quoted case controls in principle the question now before us. Manifestly, since it would be an anomaly for the courts of this State to hold that they are authorized to adjudicate under our law the rights of non-residents, while at the same time denying to the courts of other States similar jurisdiction over our own citizens.
The trial court was, therefore, without jurisdiction of the subject-matter of the petition to modify, and thus to deprive the State of Arkansas of jurisdiction over its own citizens. Accordingly, the entire proceeding was nugatory, and it is therefore unnecessary to pass upon any of the exceptions to the order of the trial court refusing to modify said original decree as prayed.
Judgment reversed, with direction that the case be dismissed.Duckworth, Presiding Justice, Wyatt and Candler, Justices, andJudge Lilly concur. Atkinson and Head, Justices, dissent.