# Petition for Writ of Certiorari — Yarborough v. Yarborough > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_0406%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1933 - **Citation:** 290 U.S. 202 ## Text & ———arnenegs ut . mS 3 > 2. a oe xp 2 tt Ate ¥ : “se ; rary e ~a | 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 16 "19. I. The Opinion of the Court Below 3 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, e 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, = ? Q 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- eS 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 ae “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 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. = ($250.00) and accrued interest upon each of said mort- or gages, having an absolute transfer to each of them as . 31 e e bs > ° 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- | ey 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:” - rr ga: vu - 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 ome, 9 oh _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 ds a guilty. of misdeméanor.”” sel A « 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: - . ° ” . . } : mem : ‘ ae e ° 4 eh Ai 5 ie | \ . * - x ; . , © *e : + > * 7 = t ~~ “7. - : . e: e v- r . XN. e A = \ = Py A a.? : ae Pt * . — . “. . x : —" 2 . Se ae ~ 4 Men! fer « a : a ; e - . + : »- wg é e Pe » -* ‘ ee aes . - > \ « . — . 3 fe 4 : ‘ e , ° e eo . “te e ~ . eee ? . ~ : © s ' “ e . \ 4, . P \ : 8 : F * . iy = ' * a“ . a ~ . eas aN" y 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) a 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 \ = \ . ees . er A . a . . : 2 5 7 2 “ser . : . ~ . 7 . . — . : . cer 2 ee ees kre oT mii sblidis joins acai aes st ala oy iad COS - — eed eee # . : fc ° : * A a . ’ « °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.) 2. 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 : 7 ¢ 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 . od 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 _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- - . . . 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 i) 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 s 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 ° . ° + \ \ W. A. ‘YARBOROUGH v. Savik YARBOROUGH - 29 ? oy > »~ “In the present cate the viii dinsonnen with © 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” 3 saying : ms “That the children may not have been within the juris- Miction of the court at the time of the institution of the -suit or entry of the decree is immaterial, smce the*parties © 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 ro ” a. 32 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 ® - ’ e- ° : yre . a : _ oo Cin ORE RONEN REY AT AEE, ill . ° ° -. bs Pe e eo . x? *- . 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 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 ‘suitable to their’ station in life; ‘and: nearly ull of the states, © 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 ° — ° sf eN 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 | interpretation of the. (New. York) law, the ultimate ruling © . - 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.” Oe 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 1; ~ 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 a0 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_0406%3A2. Public record. Not legal advice.