Petition for Writ of Certiorari — Yarborough v. Yarborough

Supreme Court brief1933

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| Sagreme Court of the United Stats

OCTOBER TERM, 1932: 5 !

W. A. YARBOROUGH; Perrrioner,!

SADIE YARBOROUGH, sy Her Guarpian ap Litem, R.

D. BLOWERS, RESPONDENT -’

PETITION FOR WRIT OF CERTIORARI

R. E. Wuirinc,

_Sterien NETTLES,

~ Counsel for Pétitioner::

= Petition for Writ of Certiorari:

INDEX

Subject Index

Summary Statement of the Matter. Sapodead de eae es

Reasons Relied on for the Allowance of ithe Writ. ae

- Prayer for: Writ ..... eer ee i ccaea eels Eka data 2

Appendix-A. Record’ of ‘Georgia Divorce Proceedings...

Appendix B.. Pertinent Provisions of Georgia iniceniia

~~ and Decisions of the Georgia — Construing Such ~

- Provisions

Appendix. hen Pertinent Provisions of South Carolina

Statutes ..... Hen nen ed isene Seenavens gaan

Brief i in + Sangin of Petitiori for Writ of € ertiorari:

eee eee eee

"19.

I. The Opinion of the Court Below 3<...:2- : seep ae

_- I: Jurisdiction. is Evxeoseucsens ae nn eae ane:

III. Statement of the Case . jn ghia tetanus nape etna cheds

a. ? Specifications OE TE iceman Bear ee ae

- V. Argument: por Rae

Summary of Argument eS cas oe eee

Point A. The Decree of the Georgia Court in the

- Divorce Action Between the Parents is an Ad-

; _. judication in Respect of the Matter. of Support

> Sp I ates on sie nos sten cen neee 2

Point B. The Georgia Court Had “Siniealibitlads in,the

Matter of Stipport of the Chifd, and the Decree ™

- of That Court Rendered the‘Issue Res Adjudi-.

‘ cata Within the Jurisdiction of the Full Faith -

and Credit Clause of ‘the.Constitution of the -

United States -..... 56... .- ee eee eee sR ee

en Raa SORE IE RCE Re NEL P age seecvceveceens

: qe

eye

ey,

oer

aes CASESCITED = st

. : *.PacE

Am. Shirety Co. v. Baldwin (Decision of Nov. "14. 1932,—

_ , U.S. Supreme Court Advance Sheets, p. 125, 132) .5; 20, 26 ©

*. Anderson v. Andergon, 74 W. Va., 124, 81 S: E., 705 ..25, 30

_ Anderson-veWatt; ,USS., 694,706. akiieceie ee ee

, - & Barber.v. Barber, 21 ‘in. Ree 5 astute :25

a Bates v. Bodie, 245 U.S: a rata tence nee cces 15, 20, 26 -

oy Brown. v. “Brown, 132 Ga:, 712, 64 S. © (ec ackesen ce. ‘.

‘Coffee v. Coffee, 101 Ga., 787, 28-S. E., 977. ..15; 24, 25, 27, 2B.

Cunningham v. Cunningham. (—Tex., “3 75 A.L.R., 1305;° 3.

MEE, GaRAN ENG) Oboe ca babu Roetiae ane be sein ke ade

es 1 Ring & & Tryst Co. v. Finley, 73 S. C., 423, er

~ £2. OAD cece cece pes cee eeeeneeees Peery 2, 0D.

Flack v. Flack, 180 N. C., 594, 105 S, E.; 268...... aera re

". Gaines v.’ Gaines (Ga.), 150 S. E., 645 ee ee eee 27, 29

_ Gilbert v. Gilbert, 151-Ga., 520, 107.8. E., saad eerer aie 27, “29

|” Haddock 'v. Haddock, 201 U.’S., 562 ..0...eeceeeteeeeees 20

Hooten v’ Hooten, 168 Ga., 86, 147. S. Bs, 3.03.4: fosncee ae

-- Johnson v. johnson, 131 Ga., 606, 62 S. E., 1044........16, 29

+ Lamar v. Micou, 112 U.S., ts eae a

race -o Maver¢, Mayer, 154 Mich:; 386, 19 L. R: A. N, ie ae ae

set Meyer v. Nebraska, 262 U. S., 390, 400 ......0..-...45- a5, ww...

*. Pace v. Bergquist Ca 159.S.: E., CE: 29 .

‘Rawlings v.- heidi ra Miss., —),7A.L. R., 1259, 1260 34

rae Robison v. Robison, 29 Ga. Aipp., 521, 116 S: E., 19........ 29°

' Sikes v. Sikes, 158 Ga., 406, 123 S. B:, B4 co. 0k ie, |:

Sistare v. Sistare, 218 U. S.,1,10......... rere ae si. %

"“ + State v. Lancaster, 135 S.C., 412, 416-.........:eeeeedeeee 25.

. ‘Thompson v. Ga. Ry. Payver Co., 163 Ga, 598,136. E., 895 2

; rae

| ENCYCLOPEDIAS CITED. Aes

“24 Am. & Eng. Law, 2d-ed., 1052.......5...005 veh t hes gacae Ns 34

46 C. J:, Sec. 50, pp. 1270, 1271 ...... wena nae teeeys wees BH >

+ 7 | Ge

ae?

: May it Please the Court:

» The petition of W. A. Yarborough respectfully shéws’ to

*. = ie oneal Court:

cn oe Mie ato:

; ~~ SUMMARY STATEMENT OF THE MATTER

pbie s action —biought in the Court of oinmon—Pleas for

bi Searutlitig County, ‘State of South Carolina,—involves the

applicability of Article IV,’Section 1, of the Constitution of

the United States, which requires that “full faith and credit |

shall be given in each state to the — acts, records, and

judicial pfoceedings of every other state”.

The defendant, W. A. Yarborough, is a non-resident a

South Carolina, domiciled in Georgia, where lie obtained a

final decree of divorce, of date June 7, 1929, in aproceeding

- brought in the Superfor Court of Fulton County, Georgia. By

decree ‘made in the proceedings; of date January 19, 1929,—

- following,the first jury verdict of divorce obtained on January

yy, 1929; Super: or Court Judge Pomeroy, Atlanta Circuit,

ordered and’ad judged the payment by said W,/A. Yarborough,

|: Of as specified amount,, “in full settlergentnot temporary and

on permanBit alimony in said cause.” The: decreé. required the

transfer of a certain mortgage’ ‘owned - ‘by’ defendant—to the

extent of $1750.00—“to R. D. Blowers, of - Spartanburg, : rhe

‘South ‘Carolina, as ‘trustee for Sadie. Yarborough, minor

|» daughter of plaintiff and defendant,” to be “expended by him ir

~ his discretion for the benefit of the minor child, jncluding her.

education, support, ‘maintenance, medical attention and other

necessary items-of expenditure”. It was made a further pro- . |

vision of the decree that “upon the. -compliance. f this order -

by the plaintiff ¢W. A. Yarborough), he shall b relieved of...

all payments of alimony and counsel fees, .in said, case, except

that the payment: due under the —. order of court, of. the

“):

2 W. A. YarsoroucH v, SADIE YARBORQUGH,

sum of $50.00, for the month of January, 1929’ shall be by him

paid, in addition to the other amounts: hereinabove named”. |

(See “Appendix A” , annexed to this petition, for’

abstract.of the Georgia Court proceedings ; and “Ap. :

pendix B”, annexed. to this petition, for pertinent - 9

Provisions of Georgia statutes ).

* : On August 20, 1929, ‘Sadie oun the minor ik:

ter r of the divorced parents,—at that time about sixteen years

ean he an ___—old, brought thé-present-action,-asa a proceeding in equity, to. - }

| compel the defendant, W. A. Yarborough (the petitioner’ :

~ herein), to pay a monthly allowance for supporting her at the ~

’ home of: her. maternal grandfather at Spartanburg, South

Carolina (where she was living with her divorced mother ). :

‘Jurisdiction’ of the defendant .was obtained by attachment;

and funds belonging to him amounting to $2119.55 were -

attached in the action. Defendant, answering the complaint,

made a general appearance ; setting up the defense, as-a bar to

plaintiff's right of action, that under the judgment’ of the

° : perior Court\of Fulton County, Georgia, he had been required

~ to pay $1750.00 to R. D. Blowers as-trustee, for the permayent

support of his daughter, which payment he had made, and that

such payment operated in full and final discharge of his obli-

gation to support his daughter,and that the decree-in the Geor-

gia Court. was res adjudicata on the matter‘ of support and

. binding o onthe South. Carolina Court, =

ta ; : The case was heard in the Circuit Court (the Court ee:

, Common Pleas for Spartanburg Caunty). on testimoriy taken

be -, «before a Referee; and, on August 22, 1931, Judge Sease, Cir-

‘cuit Judge, filed a decree, holding that the judgment in the

Georgia divorce action should not be construed, or considered,

“port of the child. (R., folios 588-590). The decree allowed

plaintiff $50.00 per ail and turned over the- funds belong- .

ing to the defendant (attached in the action ) to a trustee, to

‘be used in making the monthly payments. (R., folio 597), °

. x x «

e : . bd

as determining the extent ‘of the father’s liability for the sup-

Georgia . mt in the divorce proceedings brought in the Su- .

a W. A, ‘Yannonoivoit v. ‘Sant Vasrhonouane ae

: Pty,

ey ae sell taken’ by. the defendaai’ (they EPctitioner berein) to

the South’ Catolina Supreme Cutty ‘taiged the issue; “The

judgment of ~the Georgia Court* in\ ‘the: divorce suit is ges

adjudicate of the daughter's right. to ‘support from her father."

The pertinient exception’ Com.aagighnients of éseat were:

be 2 Error in not holding ‘that’ “the judgment of the:

* Georgia: court itt the divorce Suit. absdlved the defendant

from further liability for the rt_of. his minor daugh-

ter, the plaintiff herein,.he having made the provision for

her support required by dnadlgment,, Bs

“3. Error in tot: hold#t that : the judgment, of, the

Georgia court in the divgtce’ uit was a bar to this action,

“sbeing res adjidicata ofthis efendant’s- liability ‘to\sup- *.

= port his. minor daught&, "and said judgment being bind-

. * ing om the South Cardhiia courts under -Article IV, a

, Hoof ces United States of Amer- :

it g a that the $1750! 00 provided byt the

< judgment of the Gefrgia court for the support of defend- .

- ant’s daughter ‘g s‘gutirely inadequate to support, educate,

‘and maintain-h irr Ber station in life, and it necessarily

follows, there fuxethat -the father. j is bound both morally *

and legally to 0 sk that skexs properly provided for.’ It is

“respect fully. submitted that the judgment of the Georgia’

court provided $1750:00 for the permanent support of the

‘daughter ; that said judgment was res adjudicata of the |

matter of supports. and that the court below was bound to .

accord that: t; judgment the full faith and credit required by |

Article av. “Section.1, of the Contain of tige United

Statés #f America.”

(RK, fotios 605-60@ and 610-641).

ie Supreme Court of South Carolina, ort Aine 27, "1932,

filed its “decision against defendant, ‘affirming the decree of the

Circuit’ Court on the ground (1) ‘that the Georgia Court, did

not’ rave: jurisdiction of the, minor daughter, to determine -her .

- Tightsias she was not a party to. the action; and (2) that the _

4 =~ W: A. Yarsorous menos Sai YannonoucH “

| _ order ng provision ‘for ‘the support ot: ‘the minor

Os %

tug:

_ daughter was a consent order, _and did not conform to the. pro- .

.: visions, of the Georgia Code in respect to the | matter of fleter-

mining the liability - for the support of the minor chil

A petitioh for rehearing: was filed /by defentent ( (ihe. péti-

tioner herein). ° 61

"The South’ Carolim Gapreme Covet on December 27, 1932,°

ee an order. denying the petition for rehearing on the grourtd

<£1) that the child, Sadie Yarbor gh, ' “« was fiéver personally.

_ within. the jurisdiction of the Superior Court of Fulton Coun- .

‘fn

ty, Georgia, was ‘never served ith any process in that case,

nor was she ever represented therein by guardian ad litem;”’

(from opinion, 168 S. C.,-at page 59); and (2) “that the

Superior Court of ‘Fulton County, Georgia, while acquiring

. jurisdiction of -W. A.’ Yarborough and Susie Yarborough;

never acquired jurisdietion of :the person of the infant, Sadie

_ Yarborough, in a suit for divorce between the: "parents.’ ” The

Court further said: , ) bediaes:

“As: to her that judgment is a nullity; and does not ~

; “render* the issues in the present’ case. between; her and her

father, in the Court of Common Pleas for Spartanburg

ee * County, in the State of South Carolina, res ad judicata.”

i opinion: 168 S.-C., at age-62, )

Reasons Relied on for the Allowance of the Wiit

- 1. The State Court has decided a federal question of sub-

stance not heretofore determined by this Court. The federal:

question* involved in the State Court decision was the appli-

cability of the full faith and credit clause of the’ United States

. Constitutiort to a décreé of the court of another state adjudg-

ing, in a divorce proceeding, the payment of a ‘specified sum -

in lieu of permanent ‘alimony for the support of the child. Was |

such decree binding and effective as an adjudication of the -

‘rights of the minor child so as to:bar subsequent independent

action—in her personal behalf—to compel the father to make

sit

6...

a 2

iv O

W. < NS GH v. Sapte Yannonotion 3 5

an sian for her: éeapgor’’ There. is no Federal a

‘Court decision directly pote of the effect ofdivorce

* court proceedings as. an. adjudication of. the extent of the .

father’s duty toward. a. child ayarded to | the custody . oe 8

mother. .

ee The State Court’ has decided a federal Yestion of me

stance, in a way probably tiot in accord with. applicable deci- « oP .

sions .of ‘this court. “The cases of Sistare”v. py. Sistare 218 U. Ss.

1; Bates v. Bodie 245 U. S.. 520, and American Surety. Cam

pany v. Baldwin (decision of November 14,. .1932—United

States- Supreme Court) advance opinions . (77 L. ed. 3, at page

es 125,—while not conclusively in poing=-are ‘thought to be ap-

~. plicable to control .the determination ot the’ federal question in-. —

_ volved, :and to “compel a different rfling from that ee

in the: State Court.

WHEREFORE, your petitioner pects prays that. a

writ of certiorari be issued out of and under a of, ee ae

| ‘Honorable, Court; directed’-t ‘to the South -Carolfna Supremé

Court, commanding that court to certify and to: send to this

Court for-its review and. determination, on‘a day certain to be »

therein named, a full and ‘complete transcript ofthe record and °

* all proceedings i in the case numbered and entitled.on its docket,

‘No. 290, Sadie Yarborough: by her guardian ad litem, R. D:

‘Blowers, Respondent, vu. W..A. Yarborough, -Appellént, and

that the said jiidgment of the South Carolina Supreme Court

may be reversed by this Honorable Court, and that your peti-

'. tion may ‘have such other, and. further relief in the premises

"as to this Honerable Court ‘may seem meet, Land je; and your,

Dated March an

petitioner will ever'pray. Yep ‘

OW. A: YARBOROUGH? é(

By:*R,, E, WHItING _

“: STEPHEN NETTLES,

‘Counsel for Petitioner.

tae

! : a | r ‘+ - ° eek ; =

6 W. A, YarsoroucH v. SADIE YARBOROUGH

APPENDIX A.

_ Record of Georgia Divorce Proceedings

On September 21, 1927, W. A. Yarborough filed suit die

total divorce against Susie B. ‘Yarborough in the Superior

Court of Fulton County, Georgia. The verified complaint al-

leged that the plaintiff was, and had been for more than twelve.’

months last past, a bona fide resident of Georgia; that -defend-

ant was a resident of Hendersonville, N. €.; that the parties

were married in 1904; that they -had ‘separated in February,

1927; that’ they had one child, Sadie, aged 2; and that the

divorce. Wes sought on the ground of mental and physical —

cruelty and “threats hy defendant . agaitist plaintiff that made -

* him for for iss vy health, and well- -being. area.

(Phe deféndant. wite was served by publication, and on . No-

“Vember 25, 1927, eeind:

* and cros$-bill, the same “heing verified by her affidavit. By her '

answer, she admitted. the formal and denied the. substantial al-~

__Jegations of plaintiff's bill. By‘her cross-bill. defendant alleged

-that she had been a true and affettioriate wife, but that. plain-

tiff~had been -guilty of various acts*

physical and mental

cruélty toward-her, and that’ he was ‘gui

ing the. litigation; “that provision for permanent alimoriysbe

made for the support of respondent.and the minor child above

mentioned and for the education of ‘said: minor child;” and

“that petitioner be required to pay into court a reasonable sum

to defray the’expenses of this action and for counsel feés, and

“that he be required to pay to petitioner such further sums for.

"temporary alimeny for the support of herself and her minor —

ckild; during the pendenty of these ps 4 as may seem °

__ Just to the court.”

-On November 26, 1927, the pw after the wife’ Ss answer ani

~ cross-bill were filed, an order was made requiring the husband = -

-to show. cause on December 4, 1927, “why the prayer of said

ed by counsel and filed an answer ~~

of adultery. Her_-

prayer was for a total divorce; the custody ofthe child; an

injunction against plaintiff s disposing of his property pend-

»/

“S

_ should not be granted.” On January 12, 1

_W. A. pias SapiE YARBOROUGH) 7

e y

answer and cross-bill for temporary a and counsel fees

duction of temporary aliniony. The petition referred to the

‘consent order of January: 12, 1928, “‘for the payment of tem- |

porary alimony and counsel fees in the above stated case, .

whereby petitioner was to pay $125.00 per month for the sup- .

‘port ‘and maintenance of the said Mrs. .Susie B. Yarborough, ©

_ and $75.00 per month for the support, maintenance and edu-

. cation of their minor daughter, Sadie Yarborough,” and set-

out certain grounds on. which he asked the court’ for “a re- ~

/ --—-@yction in said alimony-to the sum.of $100.00 per rhonth,” and

that the total fee of defendant’s attorneys be fixed at $100.00.

This petition also stated that Mrs. Yarborough was refusing to

let him see his daughter except. in her presence, and he asked

to be allowed to visit his daughter,-and to have her with him

at specified times apart from her mother. A rule to show causé

issued, and a hearing was had before the court on April 17,

1928, on the portion of the petition praying for the ‘privilege

of: seeing his daughter; and on the same day the ‘following

order was passed: a a,

- “It is therefore, considered, ordered and ‘adjudged that

“the plaintiff be and he is hereby allowed the privilege, of

‘him, out of the presence of the defendant, ‘on the second

and fourth week-ends of each month, from the close of.

- school hours Friday. until Sunday night of said week

ends, during school terms, and at like times duririg vaca- \

__. tion; at which times the plaintiff shall be entitled to take :

said minor daughter on pleasure trips of reasonable -dis-

; a. consent order

'. Was entered, requiring the plaintiff to “pay to the defendant, =

Susie.B. Yarborough, by the 10th day of each month the sum |

of $125.00 per month as temporary alimony for her support,.

a 5.00 per. month for the support of the minor child, Sadie

; a gr further order of the court or the final:

_ ‘disposition of this case.” Plaintiff was also ordered to pay de- _

fendant’s attorneys $100.00 “on account of attorney’s fees.”

‘On Febriary-29, 1928, the plaintiff filed a petition for re- ~

visiting his said minor daughter, and of having her-with

c™

8 W. A. YARBOROUGH 7 v. SADIE YARBOROUGH :

‘tance returning her punctually at. the conclusion of the

alloted time.”

On June 8, 1928, the defendant filed an answer to so much

‘ .of the plaintiff's petition as sought a reduction in alimony and. .

counsel fee, in which she alleged that plaintiff had not paid the

$100.00 attorney's fee theretofore ordered by the Court, and

that plaintiff “is in default in ‘the payment of alimony in ac-

cordance with the-previous order of this court in the sum of .

$100.00 for the month of March, $100.00 for the month of .

~ April, $100.00 for the month of May, and $200.00 for the

month of June.” She asked that the petition be denied, that

she have judgment for the above sums, and that the plaintiff ‘

_be ad judged i in’ contempt. : :

On June 9, ‘1928, the osetia order, omitting caption, was

made:

“The fentguiig matter coming on to be heard upon the

plaintiff's petition for reduction of alimony, and liinita-

tion of attorney's fees, and after ‘the. introduction of evi-~

dence by plaintiff and defendant thereon, and after liear-

ing from counsel for both plaintiff and defendant: cd

“Tt is considered, ordered and adjudged that ‘the order ~

-of this Court dated January 12th, awarding alimony and

attorney’s fees to the defendant, Mrs. Susie. B. Yar-

borough, be and the same is hereby revoked, and in lieu

thereof, it is considered, ordered and adjudged that <4

and after the passage of this order the plaintiff, W.

Yarborough, pay to the defendant, Mrs.’ Susie B. “

- borough, for the support and maintenance of herself. and

the minor daughter, Sadie Yarborough, the: total: sum of

One Hundred Dollars ($100.00) per month, :to continue

‘until the further order of the Court in the premises, the

first payment hereunder to be made for the current month .

of June, 1928, and that the plaintiff pay ‘to. defendant’s ©

attorneys, Messrs. Jones, Evins, “Moore and Powers and

Ralph Williams, a total fee of ‘One Hundred Dollars

($100.00 ) against which shall be credited all sums. hereto-

fore paid during the pendency of said case, to said attor- .

iP)

(W. A. YARBOROUGH 2. Sapte YARBQROUGH 9

| neys, which shall bein full of the plnintift’ s Obligation to -

pay defendant’ s counsel in said litigation, said fee to be

paid on or before October Ist, 1928.

“It is further ordered that all unpaid alimony which ins ,

-accrued heretofore under the Court's order of January.

12th, 1928, be, and the same is hereby cancelled and the

oy plaintiff i is ‘relieved from the obligation to pay the same.

Ordered further, that in the event, of. the failure ‘of the |

defendant to comply with the Court's order dated the. .

day of April, 1928, allowing the plaintiff the privilege of

_ visiting his. said minor daughter, Sadie. Yarborough, at

times and places specified in said order, that the plaintiff -

_ shall have the right upon due proof of the. facts, and after

hearing thereon, to an order relieving him of all ae

tion to pay alimony under this ‘order.

“This 9th day of June, 1928..

(Signed) “Joun D. HuMPHRIEs,

Judge Superior Court,

- Atlanta Circuit.”

On October 24, 1928, plaintiff filed another petition in: which

he referred to the order of June 9, 1928, in which the court

passed upon “petitioner's application to reduce the monthly

payments of alimony,” and also referred to the-last paragraph

_of said order, regarding plaintiff's right to be relieved from

the payment of any. alimony to his wife, if she did not permit

him to see his daughter, as provided in the previous order of

the court. The petition then went on to recite that defendant

had prevented petitioner from seeing his daughter in accord-

ance with the order of the court; that she had attempted to

extort money from him by threatening to prosecute him crim-

inally.on a false charge, and failing to obtain: the money, she

“had, on July 17, 1928, sworn out a warrant against him in |

“Spartanburg, S. C,, charging him with having fraudulently

obtained her signature to an assignment to the insurdncé com- —

_ pany of an insurance policy in which she was: the beneficiary

by representing to her that he was. in dire need of-funds when

ca: :

<a ~

10 ° W.A. Yarsoroucu v. SADIE YARBOROUGH

he was not, and that he had cashed the check obtained from”

the insurance company, which was payable to their joint order, »

and converted the proceeds to his own use; that the truth was

that the money was realized-by surrendering a policy of insur-

_ance on his life, as he could not carry .it longer, and that’ he

paid over the money .to his wife in cash or used it in paying .

extravagant bills she had created without his knowledge or. ;

corsent ; that she had caused his arrest on the warrant an¢ his a

confinement in jail in Atlanta-until he waived extradition. and

went to Spartanburg and made bond; that, while. he had

managed to pay the alimony provided by the order of June 9,

1928, the expense his wife had subjected him to in connection

with the warrant had exhausted his funds ‘and made it im-

- possible for him further to keep up the ‘alimony payments ; and

that his wife had in her possession an automobile of his, and

he desired it sold and the proceeds paid to his wife on’ account

of future alimony payments. The prayer of the* petition was

fot the reduction of “said-alimony-payments until petitioner

- has had an. opportunity to meet the other expenses forced

upon him by the defendant’; that the automobile be sold, and

“that the court order all further payments of alimony,.in so

far as they are ‘for the support of the defendant, indefinitely

withheld until sufficient guarantees are ghade that petitioner

will be allowed to enjoy regular visits with his said minor

daughter without the presence of the defendant.”

On December 7, 1928, the following mi omitting caption,

was filed: =

“The petition of plaintiff for a 5 seduasion of alimony .'

. payments, for the sale of an automobile, and for changes —

in the order permitting plaintiff to visit his - minor

daughter, which said petition was filed October 24th,

1928, coming on for a hearing, updn hearing evidence and

argument on behalf of both plaintiff and the defendant, it

is considered, ordered, adjudged and decreed as follows:

“The court declines to interfere with the possession

and ownership by defendant.of the automobile referred to

in said petition. The court declines to make any change in

i oh eT ah lela

Ww. A. YaRsonoucH v. Sapte YarboroucHy ae

+ eine permitting plaintiff to see his minor esiien: wad ;

finds that defendant has partly complied with said order —

of ‘court, It is orderéd that the amount of alimony due

by plaintiff to defendant be reduced for the months of

_ December, 1928, January, February, and March, 1929,: . .

to the sum of Fifty~Dollars ($50.00) per month for °

these four montlis, but that beginning with the nionth of

"April, 1929, said reduction shall cease atid said payments

shall be One Hundred Dollars ($100. 00) per month as

- before the passage of this order.

_ “The defendant having testified and the plaintiff, W. A. |

Yarborough, having als testified that the plaintiff has

loaned out the sum of Five\T housand Dollars ($5,000.00)

secured by first loans on real estate in Spartanburg, S: C.,

which loans draw interest at the rate of 7%. per annum,

it is further considered, ordered and decreed that the

plaintiff, ‘W. A. Yarborough, be and he i is ereby enjoined -

from disposing of, or encumbering, or-in any other -

manner changing the status of Four Thousand Dollars :

($4,000.00). worth of ‘said first loans until the further.

order of this court, but that Four Thousand Dollars ($4,-

000.00) worth of said loans be held without change sub-

ject to such decrees and judgments as havé been ren-

dered or may hereafter be rendered in | favor of the de- 7

fendant for alimony.

\ “This. December 7th, 1928.

(Signed ) “BE, D. Tuomas,

, ‘Judge Superior Court; :

Atlanta Circuit.”

On January 17, 1929, the ¢ase was tried to a jury and they

rendered the first total divorce verdict; as follows:

“We, the jury, find that sufficient proofs have ‘hein

submitted to qur consideration to authorize a total di-

vorce ; that is to say, a divorce a vinculo matrimonii, upon

legal principles between the parties in % case. This 17th

day of January, 1929. — \

| (Signed) “H. M. Dopp, Foreman.

¥ . 4 x “ ; ‘

* la: a A YARBOROUGH. v. SADIE YARBOROUGH

Aon January 19, 1929, the following consent ele anbainar’ |

caption, was made : Aah . oh

“Parties, plaintiff, and hetenMoe, pees personally, or ie

+ in writing, consented hereto, and their. respective counsel _

ot record having likewise consented ‘in writing hereto,

“It is considered, ordered and adjudged that the follow: |. “ff

ing settlement be hereby made the order of the Court,

~. + the same being. 1 in full settlement of temporary and perma-

> nent alimony’ in® said casé, and in full settlement of all -

- other demands “of every nature ‘whatsoever between the

jparties: “3 *. é 4

“The plaintiff: W: A. ‘Yarborough, being the-owner of

two certain real estate. mortgages, each of the pfincipal

sum of Two Thousand Dollars ($2, 000.00), and bearing

interest from their respective dates at séven per cent (7% )

per annum, executed by McDowell and by Hammond, —

. said mortgages being first liehs upon real estate in the

city of Spartanburg South. Carolitia, and not having.

been ‘heretofore transferred, sold. or encumbered by the

plaintiff; the plaintiff . having heretofore been restrained’

by the order of this Court from disposing of the same,

“It is considered, ordered and adjudged that said mort-

Neh gages be, and they are hereby transferred, sold and as-

. - signed by the plaintiff, W. A. Yarborough, to the defend-

~ ant, Mrs. Susie B. Yarborough to the extent of One:

Thousand, Seven Hundred, Fifty. Dollars ($1,750.00),

and the plaintiff, W. A. Yarborough, does: hereby trans-

fer, sell and assign said mortgages to R. D. Blowers, of.

Spartanburg, South Carolina, as Trustee for Sadie Yar-

borough, minor daughter of plaintiff and defendant, to’

the extent of One Thousand, Seven Hundred Fifty Dol- °

lars ($1,750.00), the said Mrs. Susie B. Yarborough and

the said R. D. Blowers as Trustee as aforesaid, shall have

: ° the right, at their option, to pay to the plaintiff, W. <A.

Yarborough, a sum equal to Two: Hundred F ifty Dollars aa

>= ($250.00) and accrued interest upon each of said mort- or

gages, having an absolute transfer to each of them as .

31 e e

7 A. YARBOROUGH v. SADIE YARBOROUGH” 43.

“aforesaid, on the ine hand, orto require that said

mortgages | be sold and the said Mrs. Susie B. Yarborough —

‘and the’ ‘gaid R. D. Blowers, as Trustee, each to receive the

gum hereinbefore stated and the plaintiff, W. A. Yar-

borough, to receive the balance’ of the. proceeds of said |

_ sale. The amount to be ‘thus received by R.'D. Blowers;

as ‘Trustee for Sadie Yarborough, minor daughter of

| "plaintiff and defendant, shall be expended by ‘him in his

"discretion for the benefit of the minor child, including her jae

education, support, maintenance, medical attention and

-other necessary ings of expenditure. pr

“Upon the compliance with this order by the iain.

he shall be relieved ofall payments of. alimony and coun- |

sel fees, in said case, except that the payment due’ under |

the prior order of ‘Court of. the sum of Fifty Dollars

($50.00) for the month of January, 1929, shall be by him

- paid, in addition te the other amounts hereinbefore named. ~

- The plaintiff, W. A. Yarborough, shall comply with the —

terms of. this consent order at the earliest possible date,

and at all events not later than January 27, 1929.

“The provisions of the order of the Court heretofore |

’ entered fixing the times and places when plaintiff, W. A.

Yarborough, shall have the right to visit and have with

him, out of the presence of the defendant, the said Sadie

Yarborough, minor daughter of plaintiff and. defendant, ,

are hereby continued in force.

“This 19th day of. January, 1929.

(Signed) “Epcar E, Poets,

Judge ‘Superior Court,

_ Atlanta Cireuit:” -

ga:

- tried to a jury, and they rendered the second total divorce ver--...

Court i in total divorce was" entered :

e t

14 3 W. A. YARBOROUGH v. Sapte YARBOROUGH eee

* eo {. ih ae

“We, plaintiff and defen ant icantly, hereby aOR *

sent to the above and fore ing order. . ee ro

“This 17th day. of January, 1929. .

—. “W. A: YARBOROUGH,

. ae as Plaintiff. “eo =

( Signed) “‘Hat Linpsay, :

meee, Plaintiff's Ann

(Signed) “Su sre B,YaRnoRoucH;,

z < Defensor S ,

(Signed) “Mier & Davis

by Jas. €. Davis, = «

Defendant FAttoraeys.”

’

. On fine 7 1929, as ‘gue by law, the case was. again, *

dict, as follows: - . ak, . .

“We, the j jury, find that stifficient profs: haye been sub- “iia eM

" mitted to our consideration to authorize a total divorce; ee

that is to’say, a divorce a vinculo matrimonii, yipon: legal PS,

principles between the.parties in this case. We ;fix the

rights and disabilities of the parties as follows : ‘The plain- *

tiff shall ‘be at liberty to ésamad again. This, = A ad of ales Ss

_ June, 1929.

« &

(Signed) “Frep A. CapiEu, Foreman.’ | ae

~ On the same: day,’ June 7, 1929, the Silldaieg decree of .

- “Two concurring verdicts favoring a total divorce_to. cone

, “plaintiff having been rendered in the within case, it is con- -_

sidered, ordered and adjudged that said rharriage be, and.

the same is hereby annulled and a total divorce granted

between the parties, with liberty. to the plaintiff to marry -

again. The defendant shall be at liberty. to marty again. “~~

Jurisdiction of said case is retained for the purpose of *

further enforcement of orders of this Court heretofore . .

ae,

“Ww. A YarporbucH v. SADIE YARBOROUGH , A

) epassed. Ordered further that the defendant pay the costs

‘of these proceedings.

os This 7th day of June, 1929,

(Signed) “Rpéar E. Pownaay,

Judge Superior C ourt, *

Atlanta Circuit,

‘APPENDIX B. ee omens

Pertinent Provisions of Georgia Statutes and Decisions of .

the Georgia Court Construing Such Provisions.

“At the trial before Judge Sease the defendant offered in- -evi-

° -dence the following sections. of the Georgia Code of 1926 an-

« notated, and decisions of the Georgia Courts:

" Sect. 2981 (Sect. 2462) ALIMONY FOR i

)

~ -DREN ON FINAL TRIAL.+If the jury, on the second ©,

or final verdict, find favor of the wife, they shall also, in

providing permanent alimony for, her, specify what

amount the minor children shall be entitled to for their

permanent support; ‘and in what manner, how often,__

“to whont} arid until when it shalb-.be paid; \and this the

- .. may also do, if, from. any legal cause, the wife may. not

be. entitled to permanent alimony, and the said children

are not in the same category and when such support Shall

be thus granted, the husband shall likewise not: be liable -_

to third persons for necessaries. ‘furnished the children

embraced in:said verdict who shall-be therein specified. :

- “Sect. 2982." (Sect. 2463) JUDGMENTS, HOWEN-

FORCED. —Such ‘orders, decrees, or verdicts permanent - |

° or temporary, in favor of the children or. family of the

husband, ad be. enforced as those in favor of the wife’

exclusively.”

‘Maddox v. Patterson, 6, S. E. 581.

Coffee v. Coffee, 28 S. E. Q77. :

Brown v. Brown, 64 S. E. 1092.

Wilkins v. Wilkins 91, S. E. 415.

> ome,

_W. A. YARBOROUGH. v. SADIE Yannoxouent

"Gilbert v. “Gilbert, 107 S. E. 490,

. Johnson v. Johnson, 62, S. E. $044.

APPENDIXC.. |

. Pertinent Provisions of South Carolina’ Statutes.

- Statutory proyisions. are contained in South Carolina Code

of 1932, —relative_ to the’ parental obligation to provide ade-

"quate support for minor children and to the reciprocal parental.

right of control, —as follows:

5: oe

x . adequate support for the wife and children shall be proved,

. “Sect. 255. (19): Neglect of ‘Child a “Atisdasiage

* * -* Abandonment (etc.),—* * * - Ifany.verson

shall willfully abandon his famil? without provid. ng ade-

_ quate support for his wife, and the children which he may

* meaner; . >

have begotten upon her, he shall be. guilty “\ ‘misde-. |

“Ifthe fact of abandonment or any. failure. to \provide

ot while living with such wife, neglect by the Hésband to

provide for the adequate support-of such wife or chi dren

shal, be proved, then the fact that such. husband neglects

applying himself to some honest calling for the support

of such wife or cHildret: and is found sauntering about-

‘endeavoring to maintain himself by. gaming or other iun-

_due means or i$ a common frequenter of drinking houses, »

veh or is a known commort ‘drunkard; shall be presumptive

evidence that such abandonment. is. ‘willful.

“Upon any conviction for abandonment, | caity judge

" having jurisdiction thereof may, in his discretion, make _;

such order as_in- his judgment shall best pravide for the

support as far. as may be necessary, ‘of the deserted wife,

or children,‘ or both, from. the aeeny or labor, of. the.

defendant. —

“Tf any husband while. living with his wife’ shall i wil?

& ’ fully néglect toaprovide adequate suppoft for such wife.

or children which he has or upon | fier, he shall be .

iy a e-

Va ™2

guilty. of misdeméanor.”” sel

W. A. “Yarnonoucn v. Sapte Yansoyovon a”

“Sect. 1123: Saladenitiarsed for ‘Husband to’ Fail nto”

Support Wife and Children.—Any able-bodied man or a

man capable of earning or making a livelihood who shall,

actual necessaries of life to his wife or to his minor, un-

married child’or children dependent upon him, shall be .

s 4 ~—~aen

—

without just cause or excuse, ‘abandon or fail to ‘supply the.

deemed guilty of a misdemeanor, atid, upon conviction _

thereof, ‘shall be imprisoned fora term of not exceeding

‘one year, or be liable to a fine of not less than three hun- ‘ »

dred dollays’ nor more than fifteen hundred gs or |

both, in the discretion of the court ; i f..

“Sect. 8638: Mother’and Father to Have Equal Rights’

/ /

in. Custody, Etc., of Minor Children..—The wife and hus- _

_ band are the joint natural guardians of their minor chil-

san

~ dren and are equally charged with their welfare:and edu- | :

cation, and the care and manageméntyp their estates ; and

the wife and husband shall have equal power, rigtits and

duties, and neither. parent has any right paramount to’ i

right of the other’ concerning the custody of the | mi

or the control of the services or the earnings: of ae

, parent shall forcibly take a child {from the guardianship

* of the parent legally entitled. to. its. custody. ‘The, welfare

of the minor shall, be the first consideration and the court. ~

4 ;

_ minor or any other matter effecting the, minor, /Neither*

having jurisdiction shall determine all question’ concern-.

_ ing the guardianship of the-minor. Nothing herein con-

tained. shall be construed to relieve the father of his com-

the children, ,?

“Sect. 8668: Em loyérs ot ME Minors Liable to Parents or

Guardians. —it any person. shall hire or employ any minor,

or person under the age of twenty-one year, without the

. knowledge,and consent of the parents or guardian of such

mifior, sich person skill pay to.said parents or guardian

’ the full value af the laber of said-‘minar from and after

Ps notice from the — or guardian that aia of such... |

: mon law obligation to support his children, nor ‘shall it be a

construed to increase the liability os mother to suport, a

3 | ‘ ¥ fae .. ; ? a ;

4 - , 4 2° =~ as “s - : a, :

e je e +9 «- 4

18 Ww. A. ‘Yaknonoucn v. SADIE: ‘YARBOROUGH ,

a. ° a \

‘servicé shall he’ made to wn or then, as the case. » may be:

: Provided, This. séction shall ‘not apply to cases where the

r parents} ‘or “guardian fails or refuges to furnish: the minor

| a home and Support, ‘in which. cases the minor shall have

~. the right: toy. make: contract: in regard to his own labor and

force same in ‘his own name: and for his own benefit,

oe “

+e in, n_such é — sae oS:

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mem : ‘ ae

e ° 4 eh

5 ie |

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7 = t ~~

“7. -

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XN. e A = \

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‘

: W. A: YARBOROUGH ¥ SADIE YARBOROUGH 19

a BRIEF IN SUPPORT OF PETITION FOR WRIT OF

‘eee eee CERTIORARI -

, ve me

te The Opinion of the Court Below

_ The opinion. in the South Carolina Supreme Court is of-)

_ * ©". ficialy reported in 168 -S. C. 46 (Advance Sheets, S.C. Re-

ports), and is also reported in 166 S. E. 877. ot ae

A petition for rehearing was filed; and this was refused in

an opinion officially reported in 168 S. C. at page 59 (Advance -

Sheets, S. C. Repotts ). ot >

oe oe ee se IL as

os 157 8 z Jurisdiction _ ,

1. The statutory provision believed to sustain the jurisdic-

~ gjon is Section 237, amended, of the Judicial Code (28 U.S. -

, C. A., 344 (b)) as follows: °

“cc

a It, shall -be competent for..the Supreme Court, by

certiorari, to require. that there -be certified to it for re-

view and determination with the same power and au-

thority and with like effect as if-brought up by. writ of

- error, any cause wherein a final judgment or decree -has |

been rendered or passed by the highest court of a State

in which a decision could be had where is drawn in ques-

tion the ‘validity of a treaty or. statute, of the’ United

- States; or where is drawn in question the validity of a

statute of any-State on the ground of its being’ repugnant

to the Constitution, treaties, or laws of the United States;

or where any.title, right, privilege, or immunity is special-.

‘ly set up or.claimed by-either party under the Constitu-_

tion,”’ etc. w*.

rs T he.decision sought to be reviewed was first filed on June . :

27, 1932. A petition for rehearing being, however, presented to

bacars ' the South Carolina Supreme Court, the order denying the - 4

— -? petition, and constituting a final adjudication of the cause,

. "was filed of date, December 23, 1932. +

. ; mA

* — e “sad a Fron

7 - : - “

: s & ; : a . 7

~ = _—- , ~ —— —— m" <> _— ——s 5

ees etc es SINGS Re Se RRA AE Ee SEE ESS TRE AS

> s . . “ a | 7

. ‘ . e , : .

- 20 W. A. YARBOROUGH v. SADIE YARBOROUGH:

y & The answer filed by defendant (R., folios 15-20) in-

_ vokes, the protection of the full faith and credit clause of the

‘Federal Constitution. The appeal from the lower court to the —

~ Supreme Court of South Carolina raised thé issue: “The judg-

ment of the Georgia Court in the divorce suit is re¢ adjudicata |

’ of the daughter’s right togsupport from her father.”. (From .

opinion, 168 $. C.; at page 51). The holding of the opinion -

was that the question of the extent of the. father’s liability

‘* for the support of the child was not en in the ——

action (168 S. C. 46, 57). ,

4. The following cases. are believed to sustain the jurisdic- .

tion: ;

American iii C oinpany v. Baldwin (degision of:

- “ *~ Nov. 14, 1932); ee.

/ Bates v. Bodie, 245 U. S. ~

.. § Sistare v. Sistare, 218 U.S

' Haddock.v. Haddock, 201 - ’s. 562.

Ill

Statement of the Case

Supplementary facts to those set out in the “Suritmary State-

_ ment.of.the Matter Involved”, as made in the petition herein,—

ne rtinent to show the situation of the respondent as a child. of

Bivorced t parents, for whom provision was made by the decree

* of the Georgia court in the divorce action,—are as follows:

The defendant, W. A. Yarborough, and his family, con-

' sisting of Susie B. Yarborough, his wife, and Sadie Yar-

borough, his daughter, were living together in Atlanta, Georgia,

at a home provided by sgid defendant, for about a year prior -

to the commencement of the divorce ‘proceedings. :

The family. went to Atlanta about September: 5th, or 6th, s

' 1926: (R., folio 242). The davghter attended public school in :

Atlanta for the school year 1926-27; and after school ended, 4

. in June,- 1927, the wife-went to Hendersonville, North Caro-

‘lina (R., folio 243); the daughter first going to Camp Fire

_ Girls Comp, at Toccoa, Georgia, and later,’in the summer, to

Hendersonville, North Carolina. (R., folios 244, 245)

W. A. YARBOROUGH v. SADIE YARBOROUGH 21

_ “Yarborough filed divorce proceedings . by publication on

September 21, 1927, in the Superior Court of Fulton County,

Georgia. ‘The wife was served by publication ; but, on ‘Novem-

. ber 25, 1927, she appeared by counsel and filed an answer and

cross-bill. In the cross-bill Mrs. Yarborough asked for a total

‘divorce, the custody of thé child, temporary alimony for the

support of herself and the child during the pendency of the

~ action, and “that provision for permanent alimony be made for

‘the support of respondent, ‘and the éducation of said minor

child.” (R., folio 503; or, see “Appendix A” attached to the

' pétition herein). - Sa ooraae | :

On November 26, 1927 W. A..'Y arborough, having been .

ordered to show -cause, a consent order was.taken, whereby |

$125.00 per month was allowed as temporary alimony for his

wife and $75.0Q per month as temporary support of the child.

- On February 29; 1928, W. A. Yarborough filed a petition for

reduction of temporary alimony. On. June 9, 1928 a consent.

order was taken reducing the amount for the wife and daughter

to $100.00 per month. On October 24th W. A. Yarborough |

filed another petition for reduction of amount payable to his.

wife and daughter. On December 7, 1928 an order was: made

reducing the amount from $100.00 to $50.00 per month for.

the nionths of December, 1928 and, January, February and.

March’ 1929, thereafter payments to be restored to $100.00

per month. On January 17, 1929 the case was tried by a jury

resulting in a verdict of total divorce. (Appendix A of this —

petition). On January 19, 1929, the Superior Court of Fulton.

County, Georgia passed a consent order under which W. A.

Yarborough was to pay the wife $1750.00. By thé terms of the

2 same order, he was also required. to pay $1750.00 for the sup-

port of Sadie Yarborough, his minor daughter, said payment

" to be made to R. D. Blowers; as trustee for Sadie Yarborough

(see copy of order, Appendix A). The payments required by

the Georgia decree were paid. On June 7, 1929, the second

divorce verdict was rendered by the jury..On the same date,

June 7, 1929, the Superior Court of Fulton County, Georgia,

made an order, based on the second jury verdict, granting and

-decreeing a total divorce. | i.

. of « f

SADNESS I ER SOF Ee

22 W. A. YARBOROUGH v. SADIE YARBOROUGH. al

The lump sum provisiod—$17 50.00 for the wife arid $17 50.-

00 for the minor daughter—took the greater part of Yar-:

- borough’s entire property holdings (R., folios 303-326).

A few months after the divorce, Yarborough remarried.

The datighter, Sadie Yarborough, living witli her. divorced

_mother’ in South Carolina, became estranged from her father

on account of the divorce and his remarriage, telling and

writing him that she did not want to see him (R., folios 219-

227, 556-557}.

The maternal grandfather, W. D. iiinnins ii whose home.

Sadie Yarborough was living after the court had awarded ‘her

custody to her mother): testified as a witness, stating his ability.

and his willingriess to provide for his granddaughter, if her.

father couldn’t do it. is wt os Yi 26

On being asked as to the amount of allowance mpneyeny for

the support of ‘his granddaughter, Mr. Blowers said:.

“t know that I would hate to deprive her of Seca :

that I thought I could give her. * * * When she

says she wants so and so, I gi¥€=it to her. If she wants to

go to the show I do not limit her. I pay-as much as $3.30

' fora seat in the theatre. I do not give them gallery seats ©

or anything like that. I give them the best I can afford.

_ (R., folios 69;'72).

- “Q. Do you think it is the duty of is father to furnish “s

her theatre tickets at that price?

“A. Oh, yes. He is well and able to do it. » = 9

I think he is able to take good care of his own blood child.”

Vv. Nes

SPECIFICATIONS. OF ERROR»

1. |

The court erred in finding and holding (a) that the order

of the Georgia Court 4 in the divorce action between the 122809

was insufficient to opane the plaintiff as it did not conform

‘the requirements of \the ——— Code ; and (>) that the Georgia

\ =

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: 2 5 7 2

“ser .

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7 . . —

. : . cer 2 ee ees kre oT mii sblidis joins acai aes st ala oy iad COS

- — eed eee # . : fc

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. ’

°o

' L-A YARBOROUGH v. SADIE YARBOROUGH 23

Court had not rendered such final judgment—fixing the total _

extent of the father’s liability for the-support of \the child— _

as to constitute an adjudication in respect: of the question of

the support of the child. | ead

- (The sub-specifications (a) and (b) of specification 1 cov-

ering essentially the same point, will be treated together.)

The court erred in finding and holding (a) that the judg-

ment’ of the Georgia Court determining. the amount of the

alimony deferidant should pay is not binding on the South

_ Carolina courts under the full faith and credit «clause of the

United States Constitution, as the Superior Court:of Fulton

County of the State of Geor ia—while acquiring jurisdiction

of the parents (W. A.-Yarborough and Susie B. Yarborough)

—did not acquire jurisdiction of the person of the child (Sadie

Yarborough) in-the suit for divorce between the parents; and

(b) that the judgment in the Georgia divorce action is a nullity

as to the child and does not render the’ issue (of the support ~ -

of the child) res adjudicata in the present action between her

and her father.- - cater .

(The sub-specifications (a) and (b) of specification 2,.cov-

ering essentially the same point, will be treated together. ) !

Vv.

ARGUMENT

- SUMMARY. OF THE ARGUMENT

The petitioner contends :

1. The decree of divorce made by the Georgia Court in

the divorce action’ between the parents fixed the total ex-

tent of the liability of the father and required him to make

. ' a lump sum payment to the trustee (in lieu of awarding

+ °° a monthly allowance of alimony) for the support of the .

against ad husband.”

24 _W. A. YARBOROUGH v. SADIE YARBOROUGH

(See Order of bitin Pomeroy, of date January 19, 1929— 7

set out in this petition as “Appendix A. on |

2. Such decree of the Georgia Court was an adjudica-

tion in respect of the matter of support of the child; and

~ ‘was designed to be, and was, effective to give custody of

the child to the wife’ and to absolve the father (the pe-

_titioner herein) from further legal obligation. or duty to

support the child given. + said decree to the custody of

the mother.

‘CITATIONS MAINLY REL IED ON

Coffee v. Coffee, 101 Ga. 787, 28 SE. 977—The syllabus

of. the case (prepared, as in all of the. Georgia cases, by the

court) holds: “Where; in the progress of a suit for a divorce,

upon the application of the wife. for an allowance of alimony,

temporary and permanent, a decree By consént of parties is

- rendered, wherein a sum certain is awarded to the wife, to be

paid at stated intervals, and to be by her applied to the support

of the minor children, who were, by the same decree, com-

mitted to her care, after the termination of the divorce suit,

_-and the. rendition of a final decree therein, which was not ex-

cepted to, the decree ‘allowi ing alimony passes beyond the dis-

cretionary control of the Circuit. Judge, and he has then no

authority. either to abrogate it or to modify its terms. "—The

opinion (discussing the question of the effect of a. consent

judgment ).concluded : “Jn the present case the parties dispensed —

‘with a jury.trial upon the question of an allowance of -perma-

nent alimony, and, by consent, invoked a decree of the’ court

fixing the allowance upon the terms stated in the decree. This

consent having been approved by the court in which the cause :

was pending, after the grant of the divorce, the court loses con-

trol over the subject, and tlie decree stands as other judgments .

. v’.

. The Superior Court a Fulton —_— of the State of

Pie Be st acquiring jurisdiction of the parents (W. A.

Yarborough and Susie B. Yarborough) in the divorce

3 e t< .

; : “ _—

4 fie om carats = 5 Na 5 LE Pe REF LE IE SO TERS OI SEE TE NY _— —e

e ° '

F ‘

v ° .

w. A. YARBOROUGH v. SADIE YARBOROUGH 29

action aa in “that court,—had full and iceilioae 8

able jurisdiction over all family matters arising, out of the.

marriage relationship involved in said action; and had -

jurisdiction given. by .the statute laws by the State of oe

Georgia @ make final and effective provision as to the

custody of the child born of said marriage; and, corre- |

' lative with the right to award the custody of said. child,

' had jurisdiction to pass upon and determine the extent

. of the father’ s duty to provide for the maintenance and ~

SS education of the child.

CITATIONS MAINLY RELIED- ‘ON

Coffee v. Coffee,. 101 Ga. 787, 28S. E., 977; ‘Exchange

Banking & Trust Co. v. Finley, 73 S.°C: 423, 53 S. E., 649;

and Anderson v. Anderson. 74 W. Va. 124, 81 S. EB. 706— -"

The child's legal domicil was in Georgi (thie place of the

father’s domicil) and remained there until the Georgia Court

decree awarded her custody to. her mother. Barber v. Barber,

21 How. 582; Lamar v. Micou, 112 U.S. 452; Anderson v.

. Watt, 138 U. S. 694.—Ordinarily. parenit’s * dity to child is

limited to providing support at his place of f residence. S tate Vv.

Scurry, 114 S. C., 191; State v. Lancaster, 135 S. C., 412,

416.—Duty of parent to support and educaggschild is reciprocal

(or corresponding to) the right ofcontrol and is.an obligation:

which is in nearly all of the states enforced under compulsory

‘laws. Thompson v..Ga. Ry., & Power. Co., 163 Ga. 598, 136

e E. 895; Meyer v. Nebraska, 262 U. aS 390, 400. - \

. The decree of the Georgia Court,-—made i in te ex- *

ercise of the jurisdictional powers given ‘said court by the |

statute laws of the State of Georgia,—specifically deter-

mined and adjudged the rights and ‘duties of the father

in respect of the custody and support ‘of the child, and

: rendered the said issue (in respect of the support of the -

; child) res adjudicate within the protection of. the full

faith. and — clause of the Constitution. of the United |

States. : me &

= ,

; ig * .

y ie _W. A. ‘Yannoraven 1 v. SADIE YARBOROUGH

CIT ATIONS MAINLY RELIED ON |

“The principles of res ad judicata apply to questions of jur-

isdiction as well as other issues.”’ American Surety Co. v.

Baldwin (United States Supreme Court, Advance Opinions—

decision of November 14, 1932): —The applicability of the full . -

_ faith and credit clause to the Georgia judgment (the decree of:

January 19, 1929) rests on the interpretation of the Georgia ~

law, the issues made by the pleadings in the Georgia divorce

case, and the decree of the court: granted therein. Bates v.

Bodie, 245 U. S. 520; and Sistare v.. Sistare, 218 U. S. 1.

“The obvious answer would seem to be that for thé issues we

must go to the pleadings; for the response to them: and. their.

determination, to the judgment; and that each may furnish a

definition of the other.” (245 U. S., at page 526). “While the

ruling of the court Was, of course, primarily based upon the

interpretation of the (state) law, the ultimate ruling as to the

inapplicability of “the full’ faith and credit clause of the Con- :

. Strtution was expressly rested upon the decision of this court.”

ory U. S., at page 10.}* -.._

‘POINT A.

The decree made by the Georgia Court Sued ies total ex-.

tent of the father’s liability for support of the child.

It should be kept i in mind that the cross bill filed by the wife ;

to the husband's, suit for divorce prayed for the ‘custody of the

child, and also prayed “that provision for permanent alimony. »

be made for the support of respondent and the minor child

above mentioned, and for the education of said minor child.”

The response to this prayer is the decree of January 19, 1929,

- which is set out in full in ‘““Appendix A”, annexed to the. pe-

tition herein. The first thing adjudged by the decree is that““‘the

following settlement be hereby made the order of this court,

the same being in full settlement of temporary: and permanent

alimony in said case, and i in full settlement of all other de-

mands of evéry: nature whatsoever between the parties.” (R.,

folio 533). Further on in the decree it is adjudged that $1,-

i . é - >

_eW. A, Yarsoroucu v, Sapir, YARBOROUGH —— 27°.

“75900 shall be paid by the father to his wife, and a like

amount to Blowers as ‘trustee for the daughiter, and it is ad-

judged that the amount paid Blowers “shall be expended by

him in his discretjon for. the benefit of the minor- child, in-

-< cluding her education, ‘support, maintenance, medical attention

and other necessary items of expenditure.” (R., folios 535,

_ 538). It is then, provided thaf “upon compliance of this order

by the plaintiff he shall be relieved of all payments of alimony

and counsel fees.in said case”,—except, however, the require-’

"> . . . 20 Pe

— ment.of making-a $50.0Q payment which was Ss under a prior

_ ofder of the court. : gee {cine

‘l'ae case‘of Bates v. Bodie (245 U. S., on page:526) is au- | *

On.

The highest and «most authoritative evid ce that the term

“permanent alimony”’, as used in the decree, is applicable to the

provision made for the support of the-child: (as well as being.

applicable to. the provision made for the support of the wife)

is also afforded by «eference to the Georgia Code and°decisions

| NS; of tht Georgia court giving it interpretation and. effect:

. ‘The caption of Section 2981 (shown by reference: to “Ap-

. pendix B”) reads: “ALIMONY FOR CHILDREN. ON

-- FINAL TRIAL.” a) tar Ae

In numerous of the.Georgia decisions “alimony” is: wet in

referring to the provision for the support of children as well

as for the wife. The word is so used in Coffee v. C offee|, 28.

S. E., 977. In Gilbert-v. Gilbert, 107 S.°E., 490, 492, the Court.

speaks of “the amount allowable“as alimony as support for the _

children.” In Gaities uv. Gaines, 150 S. E., 645, the statement

of facts recites that the wife prayed for “permanent alimony .

for the ‘support of herself and child,” and that an order had -

~ been passed requiring “the defendant to pay $20.00 per month

as alimony for the support of the child.” And in the prevail- —

: ing opinion, in referring to the Co ffee case, the Court says that

Coffee was required to pay “$5.00 monthly on account of

"ELLY NRE ae

28. W. A. YARrBoROUGH,.?.. SADIE YARBOROUGH

alimony | for his children.” In Pace v. Bergquist, 159 S. E.

678, the Court speaks of the allowance for the child as‘ “‘an mt

lowance inthe nature of alimony,” and ‘also refers to the Coffee

“case as a case where the. allowance for the wife-and children.

. was “in full settlement of both tampotary and permanent

alimony.”’ *

The decree of the Georgiagjourt—awarding the custody

of the child to the mother and requiring the payment of

a specified total amount for the support of the child—was

effective to absolve the father from further ~— obliga-

tion or duty to support the child.

The position of the petitioner is that the effect. of the Georgia

divorce decree was to absolve him from liability to support the °

minor daughter, and that ‘the courts of ‘South Carolina are

bound to recognize that effect of the decree under the fill

faith and credit clause of the federal Constitution.

‘Minor children are never formal parties to'.a divorce suit »

between their parents, yet in all such cases the courts make

disposition of the custody of the children and provide for their

| _ maintenance ; and, in disposing of the questions ‘of custody and

maintenance,. what is done is as binding on the child as it is

on the parents. All the cases hold thatthe court having juris-

‘diction of the parentsin a diyorce suit, in- destroying the

marital relationship, has jurisdiction to deal: completely with

‘that relationship, by determining—as_ ineidental questions—the

‘matter of the custody and support of the children.

In Coffee.v. Coffee, 101 Ga. 787, 28 S. E. 977.(where ap-

plication was made by the wife for the allowance of alimony,

temporary and permanent, and a consent decree ‘was made -

awarding the wife a sum certain, to be paid at stated intervals,

_and to be by her applied to the support -of the minor children ),

‘the ¢ourt held that, after the termination of the divorce suit,

“and the renditign of a final decree therein, whicliwas not ex-

cepted to, the decision allowing alimgny had. passed beyon

the discretionary control of the Circuit Judge, and he. had th

no authority either to abrogate it or to modify its ferms. In

this connection, the court said: erie :

‘ ‘ _ -

Sena oe fone tee ~ te p> See Sree emp eee ae ot me oa x ‘ ~ woth renee DPA ain beg to oe

° . ° <

a4 \ ‘2 y , . é

4 sons . / .

a , ’ . ° ‘get

‘ ° . if “ my . ¥ :

° is 2 > +

W. A. ‘YARBOROUGH v. Savik YARBOROUGH - 29

oy >

»~

a jury trial upon the question of an allowance of

i : / permanent alimony, and; by consent, invoked ‘a. de-~*

es cree of the court fixing the allowance upon.the terms

stated in the decree. This. consent having been ap-

“. +» proved by the ‘court in which the’ cause was pending,

after the grant of the divorce, the court loses con-

trol over the subject and the decree stands as other | *-

_ judgments = the husband. 2a er ee

The later Georgi a’cases: have repeatedly recogritzed’ and re-

affirmed the doctrine of the C offee decision.—See : Johnson-v.

Johnson, 13% Ga. 606, 62S. 1044; Gilbert v. Gilbert, 15h

Ga. 520, 1078. IK. 490 ; Robison v. Robison, 29 Ga. mea 521,

"116 S. EL 193sSikes.2, Sikes, 158 Ga. 406, 123 'S, E. 694;

* Hooten v. Hooten, 168 Gk. 86,1475. E:; 373: Gaines v. Gaines’

(Gay, 150 S. EF. 645; and, particularly, Pace. v. Bergquist,

__(Ga.), 159. S. FE. 678, (the latter decision having been erron-

cously regarded i in the South Carolina Supreme Court opinion

as authority for the position that a consent order is not a final -

judgment as to the amount of canny payable , on the support

of the child. ed ag -

' PO! NT B

The eo Court had jurisdiction i in the divorcé action —

: between the parents to pass upon. all matters pertaining

to the custody and support of the children. ‘

ee point considerstily stressed in th opinion of the South.

Carolina Supreme Court, and; whbiaN opifiion denying the

“petition: for rehearing; is that the mincs \child, Sadie Yar-

. borough, was resident in another ‘state at thetime. of the di- ° *

oe ~ vorce proceedings, was not a’ formal party to the action, was

not represented by guardian ad litem, was never served in any —

_ way.,with process, and was never within the jurisdiction of

.- the Georgia Court. .

ie. ch’ premise. it is said in the opinion that “it is certain

+ .that the Supreme Court: of Fulton - County, of the State oi

Georgia, while acquiring jusiehiction 0 of W. A. Yarborough

30.-——s«WWL A. YARBOROUGH ¥. SADIE aaa ia ; ‘

and Susie B. Yarborough, never aniyiiel jurisdiction. of the

petson ofthe infant, Sadie Yarborough, in the; stit’ for divorce

oe t& parents.” _ x gets .

We.have not found any similar holding i in the cases. On the

contrary, it has heen repeatedly recognized in ‘the decisions and

is the customary p ic —under thé. construction given by

the courts to the Georgia statutes,—that questions of the cus-

tody of the children and allowances tor their support are to be

- determined in divorce actions (to awhichcthe children. are not

- parties) ‘as fully as if they had been made parties -in the

action. The Georgia decisions cited under our discussfon of

“Point A” afte illustrative. ee Et ; &

The South Carolina case of Bechanie E Banking & Trust Co.

v. Finley, 73.S. C. 423, 53-S. E., 649, recognizes, without dis-

cussion, that a judgment in divorce ‘proceedings. in the State

of Illinois absolved the father from all legal obligations, to,

support the child. There is no suggestion in the opinion that the

‘Illinois action-was in any way different from an ordinary di-

-vorce action where th¢ court determines the matter of custody

and support of the cbifd as a matter necessarily incident to the

divorce Proceedings. It is obvious that the mere presence of

‘ the child in Illinois where the decree was rendered, could not

give the court a broader jurisdiction, or ‘the decree greater ef-*

- ficacy or validity, than would. otherwise have been the case.

In Anderson vw. Anderson, 74 W. ‘Va. 124, 81 S. E. 706.

707, the wifé brought suit for divorce i in Indiana, and the hus-

band was personally served within the jurisdiction. Either be-__

fore or-shortly after the service upon’ him; he took the chil- °

dren and sent them to West Virginia, and. later himself moved — .

« there. He filed an ‘answer in the: ‘divorce suit, contesting it on:

jurisdictional grounds, as well as. on the merits. The divorce -

was granted the wife, and she was awarded the custody of the ..

children. She then went to West Virginia and iristituted habeas

corpus proceedings for the custody of the children, The father

among’ ‘others, _that the Indiana court had no jurisdiction ‘to

award the rr of. the children ¢ to the mother because’ they

co.

W. A. YARBOROUGH v.. SADIE Y ARBOROUGH ..*

fake ry : .

were in West Virginia when the suit for divorce. was com-

~.menced, and when the final decree was entered’ The wife’ ”

ight to the custody of the children was -sustained,.the court”

saying : ms

“That the children may not have been within the juris-

Miction of the court at the time of the institution of the

litigant were the father, and mother, and the cause ef

action, the right of custody, | in so far as. it. affected the

children, was between them, and the court had full juris-

diction over them, — power to render a personal al

: ce”

In Flack v.. Hil, 180 N. C. 594, 105 s E. 268, 269, the

Supreme. Court of North,Carolina held: |)

“As incident to the trial of the action of divorce, the

court, having: jurisdiction of the catise and the parties,

-« - was fully empowered to make such disposition as to the

' care and. custody of the children as the right and justice

of the case might require,” :

In Mayer Vv. Mayer, 154. Mich. 386, ‘19. i. R.. re (N. S.)

245, the wife obtained a divorce in. Oklahoma.- It awarded her ~

_ the custody of the children, and required the husband to ‘pay

her a certain monthily sum during her life or until she married

again, and also to pay a certain sum monthly a the support

of the children until the children came of age “or “until the

further order of the court”. After the divorce proceedings the

. wife took the children and moved to New York, while the -hus-

band ivent to Detroit. .The wife later moved to Detroit and

brought this suit for arrears of -alimony due her as welk as

the children. The court held that she was entitled to a judg-.

ment for the akmony due her, since the award of the Oklahoma

‘court wasa final judgment, but that the complaint should be ~

dismissed as to the alimony due the children because the

award of the Oklahoma court was not a final judgment, being | a

_ subject to modification at any time by that court. From the

_ opinion it is clear that the fact that the children were not formal °

parties to the ‘Oklahoma divorce suit was not a factor in the

”

W.A. YARBOROUGH v. SADIE YARBOROUGH

tesla and the court would, have sustaitied a judgment for

- the children’s alimony if the Oklahoma judgm d beerf‘a

final judgment as to the’ chjldren’s alimony.

In Sistare v. Sistare;218 U. S. I, the wife obtained a decree

of separation and fér alimony of $22.50 50,per week for the sup-

ort of herself and.a minor child inthH® courts of New York.

-She thereafter sued the husbgnd in Connecticut’ for arrears "

of alimony. She obtained judgment, which was reversed by the ~

Supreme Court of the: State, and the case went to the United

_ States Supreme -Court-This court held that the decree for

“afimony for the n ner and child was a final decree, not sab-

gect to modificafion, and’ being ‘such the.courts of Connecticut

were bound, under the full faith and credit. clause of the fed- -

eral constitution; to recognize it, and, therefore, that the wife

was entitled to enforce-the judgment in the Connecticut action.

All’of the foretbing cases are authoritative, either expressly

or by clear and necessary implication, for the proposition that

“it is not necessary for a child to be a formal party to a suit a

for separation or divorce wherein the child’s right to support is

adjudicated and the decree is binding on all courts. The con-_

clusion would seem inevitable (a) that a child is not a neces-_

sary party. to its parent’s divorce; (b) ‘that assuming the

foreign court has jurisdictiop of the parents, it has. jurisdiction

of the matter of the child’s support; (c) that a a judgment for

such support, which is final.and not subject to modification,

is a valid judgment ; ‘and (d)-that. it must be recdgnized under

the federal constitution.

The matter of the actual residence of the child has nothing

té6 do with the question of the court’s jurisdiction. In such

cases, the court is dealing with a ‘status,—the marital relation- .

ship;—-and the court having jurisdiction of the parents.in a

divorce suit, has jurisdiction to destroy the marital relation-

ship and, incidently-to deal completely with the rights and

duties of the parties to the relationship, which includes the

children whose custody and support must be determined by

the court. The State of Georgia, theréfore,. having to fix the

allowance for the permanent support of the child of divorced

® -

’

: yre . a : _

oo Cin ORE RONEN REY AT AEE, ill

-. bs Pe e

eo .

*- .

W. A:: ¥ansonoucn v. SADIE: YannoroucH 33.

~ parents, ‘out the state having exercised that power: —

statute specifying how such permanent support shall be fixed

and that when so fixed the father sha}: be absolved from further, ‘i

< liability. for support, the child is as much hound pany as if

it had been a formal party to the suit.

-It is a fundamental, proposition that the child’ s Jegal domicil

at the time of the divorce, was in Georgia, where her father

was. domitiled. —Lamiar u, Micou, 112 U. S. 452. a *:

Even as‘to the wife, Susie Yarborough; the principle ap-'

‘pfies that a. voluntary separation does not ‘operate to give the'

| wife a different domiciliation in law from that of her hus-’

- “2°. band.—Barber v. Barber, 21 How, 582, In this connection, in ' oe

» Anderson v. Watt, 138 U. S. 694, 706; it has been said:: “And a

although the wi ife may be residing in another place, the domucil

of the husband ts her domicil.’ Story Confl. Laws,. sec. 46;.

Wharton ‘Confl. Laws, sec. 43; and cases cited..Even where'a . «*

wife is living apart from her husband without ‘sufficient cause,

his domicil is in law her démicil.” Ao

Neither in the record of the Georgia divorce proceedings,

‘nor in the testimony given in the present case, do we find any

facts sufficient to take the wife, Susie Yarborough, ;—Pprior to .

the granting: of the divorce decree,—oit of thé application of

* the rule declared. Ii is obvious that the child’s living with her

- mother in Hendersonville, N, C. (where she was living at the ,

_ time of the commencement : “of the divorce proceedings) was -

_ not sufficient, of itself, to change her legat-domicit from the ——

- State of Georgia. It was not until the decree of the Georgia

Court. allowing the mother custody of the child, that the child

had a different domigiliation 1 in law from that of her father.

_It may also be regarded as definitely established in the courts

of the State of South Carolina, as well as in the courts of the

State of 4Geosgia\that it is not the duty of the father to main-

tain the'child except at.the place of his residence. In a com- ~

paratively recent decision—State v. Lancaster, 135.S. C. 412, —

416—we find statement of this principle, as follows: “‘A hus-

band is only required to furnish the necessities of life (to his —

—, at has place of residence’; unless ‘he destroys his home

Ba alah a OA.

Ene Law, 2d ed. 1052, where it-is said; “The moral obligation

. * a ,

/ ad ; >

i , , —

MM apts pane goes J eh ta ’ pecan oes Pile cl aa “= . - wee ’ P .

34 W. A: Yarsoroucu v. Sapir’ YARBOROUGH.

* and provides no other place where she can live’. State v. Stone,

111 S. C: 498. “dhe same rule: applies . to child’, State v,. Scurry,

M4$.C,192" |

Sigpllarty 3 in n Thompson v v. Ga. ‘Ry. &- Power Co’, 163 Ga.

598, 136 S. I. 895, we find’ the statement that the duty of

the parent to nce the child and the right to the custodyzand

Price sof the child are reciprocal.

+p o similar >fect, also, is Meverv., Ne braska, 262 U. S. 390,’

400/Wwhere it is said: “Corre sponding to the right of peeriars

it is the natural duty of the parent-to give his children education

includikg one enforce: this - iain (3 by. compulsory ie

laws”... . =

As indicated i in Me yer %. Nt brake,’ ai, it is generally —

if not universally —regardddl,whienever the subject has been’

considered, that it is ‘only by virtue of the state laws that the

duty of the father, in ‘respect of support of the: child, can -

_ be enforced. ae :

As pointed.out in C unningham v. ¢ unitingham (—- Tex. —,

: .

4 /*

40 S.'W. (2d) 46, 75 A. L. R. 1305,.1312), Corpus Juris states fy

“the rule is that the power of court to allow permanent alimony, ~

is’ wholly statutory and usually the statutes make provision

‘therefore’ (19 C. J. sec. 566, p. 243); and that “ordinarily a

minor child has: no direct fat, of action in equity against his

parent to compel the performanc: of the. laws of duty in re-. -.—~

ia ° —<—<$———“T5 ae

~spect of maintenance and education’. (46°C. J. sec. sajdeie

1270, 1271).

Semi’, in Rawlings v. Raw lings — Miss. —, 83 So. 146,

7 A. L. R.' 1259, 1260); reference is made to 21 hea; & Eng.

of a parent ta support his. child is not directly enforcible, and °

a court of equity cannot compel the performance of ‘this duty.

The duty may be enforced, however, under statute,-or indirett- CE.

CGisbubav ss a stranger supplies an infant with necessaries and

recovers therefore against the parent.”

The case of Sikes v. Sikes, 158 Ga., 406, 123 S. E. 694, ‘is

i” paint to show that the enforcement of the — s duty of

in ee cane " . . as

: W. A. YarBoroucH v. ‘Save YARBOROUGH | 35

“support is treated ander the Georgia statutes as making pro- °°

_yision that in suits for divorce a supportgnay be allowed the

children (without regard to whether the wife is found entitled

to alimony) and a judgment for the same enforced as provided

by law. But, as the cofirt pointed out, thére is no provision in

_ the Jaw, whére the-wifé and mother is dead, for a mirior child

by his guardian or next friend, to niaintain a suit for alimony,.

The court: said; “This is not.a petition in equity for the re-

covery of an amount. which the father might be required to

pay. forthe support of the minor child, even if such equity

petition could be maintained”. And, in Brown v. Brown, 24. a

Ga. App. 54 2,101 S..F. 315, it is held-that the mother who has °

obtained a decree for alimony and for the support of herself

~ and minor child in another state cannot maintain an original

_action at law in Georgia, even to recover necessary expenditures

+ made'by her after such ‘decree, ‘for the support of the child...

» We have found no decision —and none has been indicated ;

‘in the opinion in’ this cause,—that afforded “precedent to the:

South Carolina Supreme Court for its departure from the

originally recognized: prin¢iples déclared in the above duthori- |

ties. There is nothing, certainly, in the South Carolina statutes

(the pertinent provisions of which appear herein as “Appendix

C” of this petition) to warrant the child’s bringing-of-arr action -

__against the-father, 41 her own behalf, to compel hith to _— ;

an allowance for her support. :

The Decree of the Georgia Court Siominia and » ad: |

judged the rights and duties of the father in respect of the

_ custody and support of the child; and rendered the said

issue (in respect of the support of the child) res ad-

judicata within the protection of the full, faith and credit

clause of the Constitution of the United § States.

~~ The applicability of the full faith and credit clause to the

Georgia judgment (the decree of January 19, 1929) rests on

the interpretation of the Georgia law, the issues made by. the

pleadings in the Georgia divorce.case, and the decree of the

court granted therein. —Bates v. Bodie 245 U. S. 520; Sistare ~

v. Sistare, 218 U.S. 1; and Am, Surety Co. v. Baldwin (United

: ; ; e

+ ° ° . « @

, °

NASD Sips RE OE ERIE FE AE NF Oe 2] so sledaiae iia SO APNE BSA INY NC M AL E

. x e > ° sf

36 OWA. ‘YARBOROUGH v. Saptk. YArnonovcr

States Suprertie Coutt Advance Opinions—decision, of Novem-

ber’ 14, 1932)... - ~ ee ;

: In Bates v. ‘Reake— viene the question was Hhuther a

Nebraska decree gave full faith and. credit to an Arkansas

st decree allowing a stated sum in full of alimony,—Mr, Justice

— McKenna, Speaking for this court, said: ‘We are not called

upon to tface. or consider the reason of the opinion further

than to determine the correctness of its elements, and this deter-

mination can bé made by reference to the divorce proceedings

ain Arkansas-and the decree of the. court rendered therein.

' 3 But how find the matters in issue or the points con-

- troverted upan the deterinination, of which the judgment was

rendered? The obvious answer would seem to be that for the —-

issues we must go to the pleadings; for the response to

them and their determination, to the judgment; oy that,

each may furnish a definition” of the other” . (245 U. S. at p.

525, 526). nes )

“In Sistare v. Sistare; —in discussing a closely similar situa-

tion ‘where the Connecticut court. undertook to construe the

effect bf.a New York court decision,+-this court said: ‘While

_. the ruling of the court was, of course, primarily based upon |

. - as.to the inapplicability of the fall faith and credit’ clause. of

the Constitution was — rested upon ‘the decision of

this court”. , |

An auitliorits tive statement in’ point appears, also, in the

“recent case of rican Surety Co. v. Baldwin, supra, where

it is said: “The Ye fu | faith and credit. clause, together with the

- legislation pursuant thereto, applies to’ judicial proceedings of’

a state court drawn in question in an’ independent proceeding

in the federal (or other) courts. * * \* . The principles of.

res adjudicata apply to questions of jurisdiction as well as to

yee other i issues. Baldwin v. I owa State Traveling Men’s Asso. 283

‘US. 522, 75-L. ed. 1244, 51 S. Ct, 517. They are given effect

even. where the proceeding i in the federal (or other) court is to .

- ’ enjoin: the enforcement of a state. judgment, if the i issue was

made and open to litigation in the original action, or was

determined i in an independent proceeding i in the state courts.”

W. A. Yarsoroucit v. Sapir YARBOROUGH

“CONCLUSION

4 In view of the nature of. the. case, the mani fest oversight

appearing in the opinion of the fundamental principles and.-<

- gonsiderations governing the application of the full faith ‘and

credit clause of the Constitution of the United States, and -

the dangerous precedent which would he established if the -

opinion should. be allowed _to-sti And, it is, respectfully’ submitted **

that: this case is_one™ Calling for the exercise by this Court’ of Poe

. its supervisory powers, in order that the error of the South -

5 Carolina Supreme C me in. the holdings declared in its said

~ opinion, may be correct@l; and it is submitted that to.such erid

a writ of certiorari shotll ‘he granted and this court should

review, the decision-of the South. Carolina. Supreme me and

_ finally reverse it.. ice, _ .

"Dated : March 22, 1933. - ce? E. Wurrine,

‘i SrepHEn’ NETTLES,

Counsel for Petitioner.

ad fs oo

| 3

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