Lead Opinion

OPINION.

ALLEN, J.

(after stating the facts as above). — At the outset we are confronted with the question as to the effect to be given to the decree of the Superior Court of Massachusetts, of November 19, 1918, as modified by the decree of that court of December 12, 1919. There is some conflict of authority in regard to the extraterritorial effect of a judgment or decree awarding the custody of children upon a divorce of their parents. However, the general rule, supported by the great weight of authority, appears clearly to be, that if a judgment or decree touching the custody of children is rendered by a court of competent jurisdiction in one state, such court being possessed of jurisdiction of both the subject-matter and the parties, such judgment or decree is res adjudicada as to all matters occurring up to the date of the rendition thereof, and is entitled to full faith and credit in any other state of the Union, unless it be subject to impeachment for fraud in the procuring thereof.

*238 In 9 R. C. L. p. 477, Sec. 293, it is said:

“The authorities are in conflict on the question as to the extraterritorial effect of a judgment awarding the custody of children upon a divorce of the parents. Some cases hold-that while the judgment is res judicata in the state of its rendition, and elsewhere so far as the parents are concerned, it is not res judicata as to the right of some other state where the children may subsequently be, to determine the custody of the chilr dren as their welfare may require. Other authorities, on the other hand, sustain the proposition that where a decree of divorce fixing the custody of the children of the marriage is rendered in accordance with the laws of another state by a court of competent jurisdiction, such decree will be given full force and effect in other states so long' as the circumstances attending the adoption of the decree remain the same. A majority of the cases seem to hold that in the absence of fraud, or want of jurisdiction affecting its validity, a judgment divorcing a husband and wife and awarding the custody of 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 the decree has no controlling effect in another state as to facts and conditions arising subsequently to its rendition, and that courts of the latter state may, in proper proceedings, award the custody otherwise than in accordance with the original decree, upon proof of matters subsequent to the decree, which justify such inconsistent award in the interest of the welfare 'of the children. It is clear that whatever may be the rule adopted, a foreign decree or order is not a bar to a subsequent proceeding looking to its modification because of altered conditions since the time of its rendition, and where such altered conditions make a modification desirable and for the better welfare of the child.”

We are of the opinion that under Section 1 of Article IV of the Constitution of the United States, fulJ *239 faith and credit must be given to the original decree of the Superior Court of the Commonwealth of Massachusetts, not only as a decree of divorce dissolving the bonds of matrimony previously existing between petitioner and respondent, but as an adjudication concerning the custody of the children, and the fitness of each parent thereof, in respect to all matters pertaining’ thereto up to the time of the rendition of said decree. This view we find to be supported by the great weight of authority in this country. See Milner v. Gatlin, 139 Ga. 109, 143 Ga. 816; Wilson v. Elliott, 96 Tex. 472, 73 S. W. 946, 75 S. W. 368, 97 Am. St. Rep. 928; Hardin v. Hardin, 168 Ind. 352; Wakefield, v. Ives, 35 Iowa, 238; People ex rel. Allen v. Allen, 40 Hun 611, 105 N. Y. 628; State ex rel v. District Court et al. 46 Mont. 426, Ann. Cases 1916-B 256; State ex rel v. Giroux, 19 Mont. 149; Mylius v. Cargill (N. M.) 142 Pac. 918, L. R. A. 1915-B and note.

In note to Mylius v. Cargill, supra, L. R. A. 1915-B, p. 154, it is said by the annotator:

“While, as stated in the earlier note, there is some apparent conflict in the cases which pass upon the extraterritorial effect of a judgment awarding the custody of children upon a divorce of the parents, the better rule, and one supported by, or with which are reconcilable, a majority, at least, if not most, of the .cases, seems to be that, in the absence of fraud or want of jurisdiction affecting its validity, a judgment divorcing a husband and wife and awarding the custody of 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, as held in Mylius v. Cargill; the decree has no controlling effect in'another state, as to facts and conditions arising subsequently to its rendition, and the courts of the., latter state may, in proper proceedings, award the custody otherwise than in accordance with the original decree, • upon proof of matters subsequent to the decree, which justify' such incon *240 sistent award in the interest of the welfare of the children, which should be the predominant consideration at all times and under all circumstances.” '

The authorities there cited, and others to which we have referred above, abundantly support the annotator’s conclusion. Indeed, as said in State ex rel v. Giroux, supra, “this must be the result, otherwise the court of the state in which a controversy should arise subsequent to the date of the decree, would sit as a court of review of the action of a court of a sister state, having the same jurisdiction, thus according neither faith nor credit to its findings as to the fitness of the custodian selected by it.”

We are not, of course, precluded from making an award of custody inconsistent with a foreign decree, based upon matters arising subsequent thereto, if the best interests and welfare of the children, which is the paramount consideration, should warrant such course. Touching this matter, however, the evidence does not show that anything has occurred since the modification of the decree of the Superior Court of the Commonwealth of Massachusetts, of date December 12, 1919, whereby it has been made to appear that the petitioner had in any wise become an unfit or improper person to have the custody of his children; nor, indeed, do any facts appear, since said modification of date December 12, 1919, making it appear that it would no longer be to the best interests of the children that they be placed in the custody of their father for the alternate periods as provided by the original and the -modified decree. It is true that this petitioner removed from the state of Massachusetts to the state of Connecticut, soon after the original divorce decree, and that on June 5, 1919, he remarried, in the state of Connecticut, within less than two years after the granting of the divorce; whereas Section 21 of Chapter 152, Rev. Stat. of Massachusetts (1902), introduced in evidence, provides that “ after a decree of divorce has become absolute * •* * the party from whom the divorce was granted shall not *241 marry within two years after the decree has become absolute.” This provision is penal in its nature and has, we think, no extraterritorial effect. Under the decisions of the Courts of Massachusetts, it appears that petitioner’s marriage in Connecticut, did not subject him to prosecution in Massachusetts under this statute. (See Commonwealth v. Lane, 113 Mass. 458, 18 Am. Repts. 509; West Cambridge v. Lexington, 1 Pick. 506-510, 11 Am. Dec. 231.) But aside from this, the authenticated record of the proceedings in the Superior Court of the Commonwealth of Massachusetts, shows that in making application for the said modification of the original decree, this respondent set up the facts concerning petitioner’s removal to Connecticut, his remarriage there, and the other matters occurring subsequent to the entry of the original decree, here set up by respondent, and the record shows that this petitioner was interrogated concerning the same, and evidence touching these matters was before the court in that proceeding; but nevertheless, the court refused to modify the decree so as to give this respondent the sole and exclusive custody of said children, modifying it only as to the place where the children were to be delivered to this petitioner, ordering that they be delivered to him “forthwith.”

As to the fitness of respondent to have the care and custody of her said children, it is sufficient to say that in our judgment this record does not warrant us in holding that respondent is in any wise unfit to have such custody. On the contrary, though she may have acted unwisely in respect to the matter rehearsed here in the briefs, we are satisfied from all the testimony, including that of respondent, and her demeanor as a witness, that respondent, who appears to have always borne an excellent reputation, is a woman of good moral character, a kind and affectionate mother, having deeply at heart the welfare and proper rearing of these children. Our decision herein proceeds upon the ground that the decree of the Commonwealth of Massachusetts *242 in and for the County of Hampden is entitled to full faith and credit in this jurisdiction; and that the evidence discloses no ‘such changed circumstances or conditions as to warrant us in declining to grant the relief sought by petitioner. The wisdom of that, decree, providing that the custody be shifted from one parent to the other yearly, may well be doubted; but this is not a matter for our determination. Passing over the matters which were before the Superior Court of Massachusetts at the time of the entry of its decree of .December 12, 1919, nothing, we think, appears in the evidence to afford any sound reason for denying to petitioner the relief sought. He, too, has great afféction for his children, and it appears that they have been by no means estranged from him; and there is no ground to suspect that they will receive other than a father’s loving care while in his custody.

It is therefore ordered and adjudged that the said minor children, Theodore Bradford Leete and Plelen Ames Leete, be by respondent forthwith delivered over into the custody of the petitioner.

Reynolds, P. J., concurs; Becker, J., concurs in part and dissents in part in a separate opinion to be filed by him.

SEPARATE OPINION.

Addendum

BECKER, J.

I concur in so much of the opinion as sets out the law applicable to the case in hand, but in light of section 2510, Revised Statutes of Missouri,-1909, relating to the duty of courts in any proceeding in habeas corpus with reference to awarding custody of children, and the changed conditions shown by the record to have been brought about since the modification of the decree of December 12, 1919, I am of the opinion that the welfare of the children would best be '■conserved by giving their custody to the mother, with the right to the father, at his option, to have their cus-*tody each year during the school, vacation period, approximately June 15th to August 31st.