Brief for the Petitioners — Yarborough v. Yarborough

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INDEX

Subject Matter

so RO tio "gs. PAGES

B.. TRO QPMION BWW... ccccesscngecevcgewas E

- Il, Jurisdiction ............ ee errr eres zy

III. Statement of the Case....... evaaees aeoege, 2

| IV. Specificatons of Error...................00. 68

V. Summary of Argument ............ errr ="

VI. Argument: hae } aos

‘Point A. The decree of the Georgia Court provided ,

for the permanent support df the child viveed &

‘ Point B. The decree of the Georgia Court absolved -

the father from further obligation to support

_ the child, and is res adjudicata of the child’s

support: bieecisedcsseeeenees r Peres a

I kiana cos biterns-donoruebcees bes ante

Appendix.—The Georgia decisions applicable to show the .

Scope and effect of divorce decrees under Georgia

statutes to determine matters of. parental rights

and obligations ..... ixqeasehnncen ween eneeews .

CASES CITED

Alling vy. “Alling, 52 N. J. Eq. 92, 27 A. 655 .

‘Anderson v. Watt, 188 U. S. 694 .

. Bates v, Bodie, 245'U. S. 526

Barker v. Barker, 21 How. 582 ..,

Brown v. Brown, 132 Ga.-712, 64 S. E. 1092 .

Coffee v. Coffee, 101 Ga. 787, 28 S. E. 977... 6, 7,

/ Exchange Banking & Trust Co. v. \ 73 S. C. 423,

i 4 ene nuanpaiaad aia daana elie

Gaines v. Gaines, 169 Ga. 432, 150 S. E. 645 . - % | 10,

Gilbert v. Gilbert, 151 Ga. 520, 107 S. E. 490 . .6; 8, 10,

Hooten v, Hooten, 168 Ga. 86, 147 S. E. 373 . .8, 10,°13,

‘ Johnson v. Johnson, 131 Ga. 606, 62 S. E. 1044

Lamar v. Micou, 112 U. S. 452 a

Maddox v. Patterson, 80 Ga. 719, 6 S: E. 581

Mayer v. Mayer, 154 Mich. 386, 19 L. R: A. N.S. 245 |

Pace v. Bergquist, 173 Ga. 112, 159 S. E. 678 . .7, 8, io,

Rawlings v.. Rawlings, 121 Miss. 140, 83 So. 146 .

. Robison v. Robison, 29 Ga. App. 521, 116-S. E: 19 6 i0,°

Sikes v. Sikes, 158 Ga..406, 123 S. E: 694 8, 10, 20,

. Sistare v. Sistare, 218 U. S. 1: rrees |

State v. Lancaster, 135 S.C. 412 ......... TURES ee

Thompson v. Ga. Ry.: & Power Co., 163 Ga. 598, 136 -

i a Sl Weedocsdnseeehen saneeesnanes Se eenee

Wilkins v. —— 146 Ga. 382, 91 8. E. 415.

| Supreme Comt of the United States

bic crt TERM, 1933

: No. 14

a m :

. W. A. YARBOROUGH, PETITIONER,

versus |

SADIE YARBOROUGH, BY HER GUARDIAN AD °-

LITEM, R. D. BLOWERS, RESPONDENT

a,

BRIEF FOR PETITIONER

The Opinion of the Court Below .

The opinion of the Supreme Court of South Carolina, in-

cluding the opinion on the denial of the petition for re-

hearing, is officially reported in 168 S. C., 46. Both opinions ~

_-are also reported in 166 S. E., 877. _

II .

Jurisdiction

The jurisdiction of this Court is based upon a writ of |

certiorari, which, on May 8, 1933, was granted under: Sec-’

——

e\ Ww. A. YARBOROUGH, ». ie

tion 237, amended, of i Judicial Code (28 U.S. C. A,

844-b), to review the judgment of the Supreme Court of

. South @arolina, affirming the judgment of the Court of

“Common Pleas for Spartanburg County, South Carolina.

.The answer filed by the defendant (R., page 4), as well

-. as his excéptions on appeal to the Supreme Court (R., pages

‘-..107-108), invoked the protection of the full faith and credit

clause of. the federal constitution.

ails |

Stabsenent a the Case

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

sisting oP his wife, Susie B. Yarborough, and their daughter,.. .

Sadie Yarborough, were living together |in Atlanta, Georgia, ©

_at a home provided by defendant, for about'a year before

he filed suit for divorce. The family. went to Atlanta about

September 5, 1926 (R., page 43). The daughter pttended .

public school for the school year 1926-27, and in June, 1927, |

the wife went to Hendersonville, N. C. The daughter first

went to a camp at Toccoa, Ga., and later in the summer

joined her mother at Hendersonville, a summer resort (R.,

page 44).

On. September 21, 1927, Yarborough filed suit for di-

‘vorce in the Superior Court of Fulton County (Atlanta

Circuit), Georgia. The wife was served by publication, but,

on November 25, 1927, she appeared by counsel and filed

‘an answer and cross-bill. In her ‘cross-bill she asked for a —

* total. divorce, the custody: -of the child, temporary alimoriy

«for herself and the child, and “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.” (R., page 89). |

On November 26, 1927, the day after vey wife’s answer

and cross-bill were filed, Yarborough was ordered to show

cause on December 3, 1927, why temporary alimony and

counsel fees should not be granted, and, on January 12, 1928,

a consent order was entered requiring him to pay the wife

SADIE YARBOROUGH | i

$125, 00 per.month = her support and $75.00. per month

_ for the support of the child “until the further order of the

court or the final disposition of this case.” He was also

ordered to pay his wife’s attorneys $100.00 “on account of

attorneys’ fees” (R., pages 89-90). is

_Thereafter, on petition of Yarborough, the amount of

temporary: alitnony was twice reduced sntil, by’ an order «

dated December 7, 1928, he:was excused from the payment

of all accrued temporary alimony and'the monthly allow- . .

ance for the mother and child.was fixed at $50. 00 per month

.for the months of December, 1928, and January; February,

and March, 1929; and after March, 1929, it was to bein-

creased to $100.00 per month. (R., pages 90-93).

“On January 17, 1929, the first jury, trial was had, result- .

irfg in\a yerdict for: divorce (R., page 94). Two days later,

- January 19, 1929, a consent order was iiled awarding “4

wife $4,750.00 and a trustee for.the daughter $1,750.00 “‘i

_ full — of temporary and permanent alimony - in

the case.”-The trustee for the daughter was to expend her |

Allowance “in his discretion . for the benefit of the minor

/ child, including her education, support, maintenance, medi- —

cal attention, and other necessary items of expenditure.”

It was also. provided that upon compliance with this order

Yarborough, should be relieved “of all payments of ali- .

. mony” (R., pages 94-96, where the order is given in full). *

_. Qn June 7, 1929, the second and final verdict for a: divorce

P was rendered by a jury, and on the same day an order,

ei based upon the two concurring verdicts, was entered de-

. creeing a total divorte (R., page 96).

The lump sum provision made for the permanent sup-

port of the wife and daughter—$1,750.00 for each—was

‘paid by Yarborough, and represented the greater part of his

+." entjre property holdings (R., pages 54-58). ;

A few months after the divorce Yarborough married

again. His daughter, living with her. divorced mother in

South. Carolina, became estranged from him, and. finally

refused to see him (R., pages 38-41, 98).

? s

PEEP E TE BES AEDS IIE IO IE

fey .

4. - 'W. A. YARBOROUGH v. |

‘Some fifteen months after the final decree of divorce

- (August 20, 1980); the daughter, Sadie. Yarborough,

through her maternal grandfather as guardian ad litem,

‘ brought this action ih equity (in the Court of Common

Pleas. for Spartanburg County, South Carolina): against

her father, W. A. Yarborough, for support. J urisdiction of ©

the defendant was obtained by attaching funds of his in

‘the amount of $2,119.55. The defendant appeared generally, .

and, in addition to other defenses, plead in bar of the action

that in the Georgia. divorce proceedings he had made pro-

vision’ for the permanent support of his daughter ; that such

‘ payment operated in full and final discharge of his obliga-

. tion to support her; and that the decree in the Georgia suit

was res adjudicata of the matter of support and binding on

the South Carolina court’ (R., pages 1-2). — -

‘The case was heard on circuit, and ‘a decree was entered

turning over the attached funds to a trustee, to provide ———

$50.00 per month for the minor (R., page 2). The defend-

- ant then appealed to the Supreme Court of South Carolina,

and by his /exceptions again raised the constitutional ques- .

’ tion (R., /pages 107-168, Exceptions, 1, 2, 3 and 8).

' The ‘Supreme Court of South Carolina filed its decision. —..

on June 27, 1932, affirming the decree below ontwo.grounds. |

—(). that the minor daughter was not-a party to the :

Georgia divorce suit and was not a resident of Georgia,

and the Court therefore did not have jurisdiction to. deter-"

_ mine her right to support, and (2) that the decree-of the

. Georgia Court providing for her support did not conform to.

the Lr of the Georgia law, and therefore was -not

we” adjudicata of her right to support. (R., page 109; 168 -

- South Carolina Reports, 46.)

The defendant then filed’a petition for rinsenctingy This

_ was denied on December 22, 1932, on the ground that the

_ Georgia Court granting the divorce had no jurisdiction over *

the minor, and she was, therefore, not bound by the decree

in the divorce suit. (R., page 121; 168 — Carolina Re- _

‘ports, 49. )

the education . of said minor child.” THe

SADIE YARBOROUGH i ( kt CB

, IV :

Specifications of Error °

1. The Court erred in finding and holding that the de-

cree of the rgia Court in the divorce: action did not

bind the p aintiff because it did not provide for her per-

mezent support, in the manner prescribed by the Georgia ‘.

law. .

2. The Court erréd in finding and holding that the de-

cree of the Georgia Court in the divorce action did i. not- ae

absolve the defendant from further obligation to support

the plaintiff. me

'3. The Court erred in Alen and holding that. the de-

cree of the Georgia Court in the divorce action was not.

binding on the Courts of South Carolina under Article IV,

Section” i, of the Constitution of the United States of |

America.

Vv

Summary of the Argument. |

A. The decree of the Géorgia Court provided for the

permanent support. of the child. _

B. The decree of the Georgia Court absolved the father

from further obligation to support the child, and is res

a of the matter of the child’s oupport,

VI

| ‘Argument |

Se a POINTA

The dsnwen of the Geersin. Court are for the per-

manent support of the child.

The cross-bill filed by the wife to the husband’s suit for

divorce prayed for the custody. of the. child and “that pro- .

vision for permanent alimony be made, for the support, of ae

respondent and the minor child. above-1 ntioned, and“for

Cae to. this

prayer is the ca of. Judge Pomeroy of January 19, 1929,

7; =e

| 6 | W. A. YARBOROUGH v.

which j is set out in full at pages 94-96 ‘of the record. 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 ali-.

mony ‘in said case, and in full settlement of all other de-

mands of every nature ‘whatsoever’ between the parties.”

Further on in the decree it is adjudged that $1,750.00 Shall

be paid by Yarborough to his wife:and a like amount to

Blowers as trustee for the daughter, and it is adjudged

that the amount paid Blowers “shall be expended by’ him

in his discretion for the benefit-of the minor child, inc]ud-

ing her education, support, maintenance, medical atten- .

tion, and other. necessary items of expenditure.” It is further

decreed that “upon the compliance with this order by the

plaintiff he shall be relieved of all payments of alimony

and counsel fees in said case’, except a certain 960. 00 ) pay-

ment due under a prior order.

The case of Bates v. Bodie, 245 U. S. at page 526, is au- —

thority for the: proposition that) “for the issues one must .

go to the pleadings; for the reaponse. to. them and their

determination, to the judgment; and that each may furnish

_ a definition of the other.” |.

- The highest and most sithovtiative b evidence that the inne

“permanent alimony”, as used in the decree of J udge Pome-

roy, includes the. provision made for the support. of the: |

child, as’ well.as the provision-made for the support of the

wife, is the fact that both the. legislature and - ‘the ane

of, Georgia use the term in that inclusive’ serise,

- The caption, of ‘Section 2981 (which is the statute re-

om quiring that permanent support for, children shall be pro- .

vided An the divorce suit) reads: en For. Children :

On Final Trial.” er

In numerous of the Georgia diiteniecs “alimony”. is wm ;

in referring to the provision for the support of the children

i as to that for the: wife. The word is so used in Coffee

v. Coffee, 101 Ga.787, 28.8. E. 977. In Gilbert v. Gilbert, 151

Ga. 520, 107 S. E. 490, the Court speaks of “the amount a. _

_ Towable as alimony as support for the children.” In Gaines.

< . a :

*: Sas \ .

Sante YARBOROUGH : Po nouee |

%. Gaines, 169 Ga. 482, 150 S. E. 645, the statement of facts

recites that the wife prayed for ‘ ‘permanent alimony for the

support of herself. anid child,” and that an order had been

passed. requiring “the defendant to pay $20. 00 per month

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

ing opinion in that case, in referring to the. Coffee case,

the Court says that Coffee was required to pay “$5.00

monthly on account of “alimony for his children.” In Pace

© . y», Bergquist, 173 Ga. 112, 159 S. E. 678, the Court speaks

ef the allowance for the child as as “an allowance in the

nature of alimony,” ‘and refers to the Coffee case a& a case

; where the allowance for the wife and children was “in full

i i settlement of both temporary and permanent alimony.”

‘The holding of the Supreme Court of South Carolina that i

the decree of Judge Pomeroy provided only temporary and

riot permanent alimony for the child seems to: be based, ‘ )

not on the fact that J ude: Pomeroy did not: intend thereby.

to provide permanent alimony, but. rather'on the “proposi- .

tion that as,matter of law such provision could not be made

-by a consent decree, or before the second verdict. (See.

_ the opinion, 168 S. Cy at’ pages 56- 57; Record, pages, 117-

118.) a /

It is true that Section, 2981 (R., ‘page . 102), does odin

. that the’ jury, on the Second or final verdict, shail. fix the

permanent alimony for the children, ‘but it is equally true

‘that the Supreme Court of Georgia has through a long line

_of cases held that a consent decree, fixing such permanent: »,

alimony, i is just as efficacious as the verdict of a jury. _

In Coffee v. Coffee, 101 Ga. 787, 28 S. E. 977, by a con--

“sent; decree in. a divorce guit, permanent alimony was ‘pro-

vided for the children, #hd thereafter a decree of. divorce

was entdred. Subsequently: the father sought to be relieved

of: the alimony: payments. It was held that the decree was

res adjudicata of the matter of support, and the father -

could not be relieved of the judgment. Said the Court:

“In the present case the parties dispensed with 2

i. _. jury ‘trial upon the question of an allowance of pet-:

ay

“tae

W. A, aac Vv.

manent alimony, and iw consent: invoked a decree of

the Court fixing the allowance upon the terms stated

in the, decyee. This consent having been. approved by

the Court in which, the cause. was pending, after the

' grant of the divorce the Court loses control over the

subject, and the decree ‘stands: as other judgments

against the husband.” *

To the same effect see:

| Johnson v. Johnson, 131 Ga. 606, 62 S. E. 1044.

Gilbert v. Gilbert, 151 Ga. 520, 107 S. E. 490.

Robison v. Robison, 29 Ga. App. §21, 116 S. E.

. ee

Sikes v. Sikes, 158 Ga. 406, 123 S. E. 694.

Hooten v. Hooten, 168 Ga. 86,.147 S. E. 373.

Gaines v. Gaines, 169 Ga. 432, 150 S..E. 645.

Pace v. Bergguist, 173 Ga. 112, 159 S. E. 678.”

’ It would seem that the Supreme Court of South Carolina —

entirely misconstrued the holdings in the Gilbert case and

the Pace case. When the Court says in the Gilbert case that

it is the duty. of the jury to fix the permanent alimony, it is .

merely saying that the matter of fixing the permanent ali-

mony is one of fact, and whether fixed by the Court by a

‘ consent decree, or by the jury by a verdict, it is a matter of

fact, and as such cannot be altered by the Court. The per-.

‘ manent alimony in that case was actually fixed by a consent

“decree, and not by the jury. In the Pace case there was a

consent order granting the ‘child- $30.00 per’ month “until

the further order of the Court.” This was held to be an

order for.the payment of temporary alimony, and as there

was no subsequent decree granting the child permanent

alimony, and temporary alimony stops with the final decree

of divorce, it was held that the father was not guilty of

contempt for refusing to continue the $30. 00, payments after.

the final decree. ™

POINT B

“The d decree of the Georgia Court absolved the father

- from further obligation to support the child, and is res

ad judicata of the matter of the child’s support.

3

‘SADIE YARBOROUGH 9

Sections 2981 and 2982 of the Sumte Code of 1926, an-

notated, read as follows:

_ “Sect. 2981 (Sect. 2462) ALIMONY FOR CHIL-

DREN ON FINAL TRIAL.—If the jury, on the second

or final verdict, find in 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 whom, and until when it shal] be paid; and this they -

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 like-

wisé not be liable to third persons for necessaries fur-

nished the children embraced in said verdict who shall

be therein specified.” ln. ‘

” “Sect. 2982. (Sect. 2463) JUDGMENTS, HOW EN-

FORCED.—Such orders, decrees, or verdicts. perma-

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

the husband, may be enforced as those in favor of the

wife exclusively.”

In Maddoz v. Patterson, 80 Ga. 719, 6 S. E. 581, the minor

child of a deceased father claimed a year’s support out of

his estate as against creditors. It was objected that the child °

“was not entitled because it was in the ‘custody of the mother

under a decree of absolute divorce. The Court held in favor

-of the child, saying: —

“The judgment of divorce did not grant alimony,

either permanent or temporary, to the wife or the child;

and so far as appears there was no discharge of the

father from his obligation to support his child.”

In Coffee v. Coffee, 101 .Ga. 787, the father petitioned to

be. relieved from certain permanent alimony payments in

favor of his children, provided for in a consent decree in a |

‘divorce suit. In aaiting that he could not be relieved, the

Court said: .

W. A. YARBOROUGH v.

“The allowance for the support of these children

rested upon a contract, which, receiving ‘the sanction

of the court by judicial decree, imposed upon the hus-

band the responsibility with whith he was: already

charged by law, namely, the support of the children.

.. She became by virtue .of this decree, in her

capacity as trustee for her minor children, a judgment

creditor, and the court could no more vacate that judg-

ment so rendered in her favor than it could vacate a

judgment rendered against the husband in favor of a _

creditor of his upon any other ‘account. Whatever right

of revision of this decree may have existed was extin-

guished by the grant of the total divorce.”

The doctrine of the Coffee case, that a catia decree

granting permanent alimony to minor children, entered in

_ a suit resulting in a decree of divorce, is res adjudicata of

the matter of the children’ s support, has been Rieti af- .

firmed and is the settled law of Georgia. .

Johnson v. Johnson, 131 Ga. 606, 62 S. E. 1044.

Brown v. Brown, 182 Ga. 712, 64 S. E. 1092..

Wilkins v. Wilkins, 146 Ga. 382,-91.S. E.°415.

Gilbert v. Gilbert, 151 Ga. 520, 107 S. E. 490.

Robison v. Robison, 29 Ga. Apps. 521, 116 S. E. 19.

' Sikes v. Sikes,,158 Ga. 406, 123 S. E.694. —_..

Hooten v. Hooten, 168 Ga. 86, 147 S. E. 373. __

Gaines v. Gaines, 169 Ga. 482, 150 S. E.645. ©

Pace v. Bergquist, 173 Ga. 112, 159 S, E.-678.

In Exchange Banking & Trust Co. v. Finley, 73 S. C. 423,

the Supreme Court of South Carolina recognizes, without

discussion and as a matter of course, that a judgment in

divorce proceedings in.the State of Illinois absolved the

father from further obligation to support his child.

In Mayer v: Mayer, 154 Mich, 386, 19 L. R. A. 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 monthly sum during her life or until

she married again, and also to pay a certain sum monthly :

SADIE YARBOROUGH // ow Sf

for the support of the children until the children came of

age “or until the further order of the court.” After the di-

-vorce proceedings the wife took the children and movéd to’

New York, while the husband went to =a The wife

later moved to Detroit and brought this suit. for arrears of

alimony due her as well as the children The Court held *

that she was entitled to a judgment for the alimony d:ie her,

since the award of the Oklahoma Court was a final judg-

- ment, 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 subject to modifica-.

tion 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 decision, :

and the Court would have sustained ‘a judgment for the

children’ 8 alimony if the Oklahoma judgment had been a

final’ judgment as to the children’ 8 alimony {

In Sistare v. Sistare, 218 U. S. 1, the wife obtained:a de-.

cree of separation and for alimony of $22.50 per week for

the support of herself and-a minor child in the Courts’ of

New York. She thereafter sued the husband 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 alimony for the mother and child was a

final decree, not subject to modification, and being such the

Courts of Connecticut were bound, under the full faith and

credit clause of.the federal constitution, to recognize it,

and, therefore, that the wife was entitled to enforce the

judgment i in the Connecticut action.

All of the. foregoing ‘cases are eithivitetive, either ex-

pressly or by clear and necessary implication, for the propo-

sition that it is not necessary for a child to be a formal party |

te its parents’ divorce suit in order for the child’s right of —

support to be finally adjudicated. Hs

The matter of the actual residence of the child would seem.

to have nothing to do with the Court’s ‘jurisdiction to ad-

’

- ' /

. > : ¢

2 -

c. name = DS YR GENET NS RH LEP EL IRR EO ee EE a OE Re ee i *

x =e ight ees le . 3

-

e

12 _ W. A, Yarporoucn.v.-

‘judicate the matter of support. In divorce cases the Court

deals with a status, a relationship, and if it has personal

jurisdiction of the parents, it has complete jurisdiction ‘to

destroy the relationship, and incidentally to deal finally with

the matter of support of the children. The State of Georgia, - ~

therefore; having the power to fix the allowance forrthe.

" permanent. support, of the child of divorced parengg, and

the State having exercised that power by a om 4 en-

actment, specifying how such permanent support shall be

fixed, and that when so fixed the father shall’ be absolved

from further tiability to support the child, the child is as

.. much bound thereby as if it had been a formal oe to the

suit.

What actually happens in such a case is that the obliga-

tion to support, imposed by the State, is removed ‘by the

State. In so doing the State does not act upon the child, who

may be beyond the jurisdiction, but upon the father, who

is within the jurisdiction.

Under the decree of divorce the custody of Sadie Yar-

borough was given to her mother. The obligation to support

the child passed from the father to the mother, apart from

the sum given the trustee for the support of the child. See .

‘Thompson v. Ga. Ry. & Power Co., 163 Ga, .598,°136 S. E.

895, where it is said, in accordance. with the general law,

that the duty of the parent to support the child, and the right

of custody are recipracal. In State v. Lancaster, 135 S. C.

= 412, it was: held that a father is required to support his chil-

dren only at his residence. As Sadie Yarborotgh, at the

~ time she brought this suit, was living with her mother in

South Carolina; who was charged with the duty of support-

ing her, it is difficult to see why the Courts of South Caro-

‘ lina should insist upon also charging her father, a non-resi-

dent, who was not entitled to her custody, with her’ sup-

_ port. It cannot be questioned that after the divorce Yar-

borough was not liable for the support of his minor daughter

-at his residence (Georgia), and under the Lancaster case .

. he was not liable to support her in any other place (South

Carolina). | 5

fa when wae nae 9 * DS

SADIE YARBOROUGH. i (wsi(i‘(<(‘éi‘zrm SS;

Under such circumstances, for the Courts of South Caro-

lina to refuse to recognize that, as a result of the Georgia

divorce and the proceedings @erein, Yarborough was ab-

solved from the obligation to support his minor, daughter,

amounts to imposing upon a non-resident a greater burden

than is imposed upon-the resident, and is a denial to the

non-resident of the benefit of the rule of law which is ap-..

plied to the resident in the Lancaster case. ~

. Further, there is no South Carolina decision or statute,

and none is indicated in the opinion of the Supreme Court,

permitting a child to bring a direct action in equity ‘against- =

its father for support. There is no such right. ef action.

Rawlings ”, Rawlings, 121 Miss. 140, 83 So. 146.

Alling v. Ailing, 52 N. J. Eq. 92, 27 Atl. .655, .

Hooten v. Hooten (1929), 168 Ga. 86, 147 S, E, 373.

- We also maintain that as matter of law and fact the

child’s legal domicil was in Georgia at the time of the di-

. vorce. Her father’s domicil was there, and her domicil fol-

- lowed his. Lamar’ v. Micou, 112 U. S. 452. Even as to the

wife, her domicil was with her husband. A there voluntary

separation does not operate to give the wife a separate_

domicil. Barker v. Barker, 21 How. 582, In this connection,

see Anderson v. Watt, 138 U. S. 694, 706, where it is said:

“And although the wife may be residing in another place, .

the domicil of the husband. ds 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 domicil.”

‘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 out of the application

of the rule, prior to the granting of the divorce decree.

' Obviously, the child’s living with her mother in Henderson-

ville, N..C: at the time of the commencement ef the divorce

- suit was not sufficient, of itself, to change the child’s domicil

' from the State of Georgia. It was not until the decree of the

Georgia Court allowing the mother the custody of the child,

4

Z ws tas naw oF sew

14. oe A, YARBOROUGH v.

Oe %

- that the child acquired a different domicil from that of her

. father. NAS

CONCLUSION |

The judgment in the Georgia divorce suit was res ad-,

judicata of Sadie. Yarborough’s right to ‘support from her =

father, W. A. Yarborough, and was a bar to this. action;

and the failure of the Supreme Courtof South Carolina's so. -

~. to hold was a violation of W. A. Yarborough’s rights un-

_der the full faith and credit ‘clause of the federal con-

>. stitution, entitling him toa reversal of the judiment be-

low.

; a | E. WHITING,

poe _ STEPHEN NETTLES, ©

~ Counsel for Defendant.

SADIE YARBOROUGH ‘ a er,

APPENDIX

REFERENCES TO RECENT GEORGIA DECISIONS APPLICABLE ‘TO

SHow THE SCOPE AND EFFECT OF DIVORCE DECREES

UNDER GEORGIA STATUTES TO DETERMINE

MATTERS OF PARENTAL RIGHTS AND -

“os | OBLIGATIONS

Pace v. Bergquist i

(178 Ga. 112, 159 S. E 678) .

“-— 5. OR

;

A consent order in the case, issued during the pendancy

of the divorce:proceedings, contained a provision requiring

a payment by the father of $30.00 per month “until the

further order of the court” for the support of the minor

child. The final verdict and decree for divorce did not pro-'

_vide for alimony for either wife or child. The father—fail-

‘ing thereafter to keep up the payments for the support of

‘the child—-was adjudged in contempt. The decision of the

Georgia Supreme Court reversed the ruling of the Court .

below, stating the grounds for such reversal as follows:

“1. The effect of the judgment granting temporary

. alimony to the mother for the child;-in stated monthly

payments ‘until further order of the court,’ when con-

strued in connéction with Civil Code 1910, Sec. 2978,

was that the payments should continue, under the su-

pervisory power of the court to modify or revoke the.

same, until final judgment, when the payments would

. cease altogether by operation of law. Holieman v. Holle-

man, 69 Ga. 676; Osborne v. Osborne, 146 Ga. 344, 91

S. E. 61; Black v. Black, 150 Ga. 672, 104 S. E. 775. The

fact that the judgment was rendered by consent did

not extend the force and effect of the judgment beyond

the final verdict and decree in the divorce ease. Such |

judgment contemplates alimony pending, the cause.

Higgs v. Higgs, 144 Ga.-20, 85 S. E. 1041.

. “2. After the wife obtained. the decree of total di-

-- yorce, the matrimonial relation no longer existed, and

she could not thereafter on an order or ' judgment

W. A. YARBOROUGH v.

requiring her former husband to pay to her alimony,

-or an allowance in the nature of alimony, in order that

she might support their minor child, whose custody

‘ shad been awarded her under the above order or judg-

ment granting temporary alimony for the support of

the child: Hall v. Hall, 141 Ga, 361, 80 S. E. 992;

Watson v. Watson, 168 Ga. 573, 148 S. E. 386.

4g ‘Where: the wife, on account of the misconduct of.

the husband, obtains an order granting her temporary

alimony for the support of their minor child and award-

ing her custody of such child, and afterwards obtains a

yerdict and decree granting to her. a total divorce, with-

out any provision requiring the father to pay permanent

\ alimony for the support‘ of the child, the father is not _

relieved of his legal obligation for the proper support:

of their child; and, if he fails or refuses to discharge ae

this obligation, the mother, in an original action, may

recoyer of the father the amount of expenditures made

by her after such decree for the proper support of their

child. Brown v, Brown, 132 Ga. 712, 64S. E. 1092; Hall

v. Hall, supra; Hootén v. Hooten,\168 Ga.-86, 147 S. E:

37 3.”

|

| Gaines v. Gaines . p

| (169 Ga. 482,-150 S..E. 645)

fe)

In a suit commenced July 27, 1927, an order was made,

of date August 10, 1927, granting the wife $50.00 per month.

- ‘as temporary alimony for the support of herself and minor

child. On March 19, 1929,:an order was made, awarding -

the custody ‘of the child to the mother and requiring the —

defendant to pay $20.00 per month as alimony for the’ sup-

port of the child for five years and thereafter to pay. ‘$25.00

per month until the child should have reached eighteen years

‘gf age. Counsel for both parties consented in writing to

the entry of this -decree, which recited that it was made

pursuant to the agreement of. counsel.

. . SADIE YARBOROUGH. aoe! : 17

On April 5, {929, Mrs. Gaines filed a motion (t

other counsel) to vacate this decree.on the ground that it

* was entered without her knowledge and consent, and that

her counsel had no authority to. consent to it, and that she /

was entitled to a larger amount. Anogher ground of the

motion was that the decree for alimony was rendered by the. |

Court without a jury ; that\the matter should have been sub-

mitted to a jury; and that the: decree made in the suit for

alimony forfeited the rights of the child for a period of three.

7 years during minority.

“

An order vacating the judgment for permanent alimony,

and granting 4 new trial, was sustained+—under’ a majority

opinion of the Supreme Court—on the ground ‘that “the

judgment vacated @as rendered on March 19, 1929, and

_ the petition to vacate was filed ‘April 5) 1929; both dates

being within the same,term of the Superior Court of Ful-

ton County, to wit: the germ beginning on the first Monday -’

in March, Therefore, it\not appearing that the discretion

of ‘the ‘trial Court was abused, the judgment gwill be af-

firmed”. Commenting on — of Coffee v. coe, 101 Ga.

@ 787, 28 S. E, 977, it was pointed out that “the-original judg-

_ , ment in that case was rendered:at the January term, 1891, °

_ and the motion to abrogate or modify the decree was made |

“at the July term, 1896”;

A dissenting opinion by J aera) Beck and Atkinson was:

to the effect. that the consent order fixed the allowance for

permanent support; disposed of the question of permanent

alimony ; stood upon the same footing ‘as the finding of the 3 Meee: ;

jury provided for in Section 2981; ‘and tliat “the judge had . |

ee nomore authority to alter this judgment than he ‘would have

- had to set aside'a verdict of the jury scram an allowance. .

for permanent alimony”. -*

. Under either of the above referred to @Pinions, there can

‘be no doubt whatever, it would seem, as to the final and

_ binding effect ‘of a consent decree determining the extent

of the father’s parental obligation for the support of a child

awarded to. the custody of the mother. The consent: having

‘ collusion as to vitiate tive judgment.

ee W.. A. YARBOROUGH | v.

- ‘oan approved - the Court i in which the case was pending, =

the decree stands as other judgments; and cannot -be ques-

_tioned, after the termination of the. case in which the judg-

ment was: rendered, except. upon such charge of fraud or

\

er

ae Hooten v. Hootén |

py) GB Ga. 86, 147 8. E. 373) °

- ‘The petition af the children, by: their mother, as’ wack

friend, sought’ an allowance’ of $100, 00 per month .as per- —

. ‘manent support. The father demurred upon. the grounds:

Ya) The petition is not uthorized by law. (b) There is. -

no: provision of law aut orizing or sanctioning it. {c) It

sets forth no-cause of action. (d) Children cannot sue their

: father for support by themselves or their next friend where,

there is a total divore¢ between their father and mother.

‘"(e) It appears from the’ petition that the divorced wife of

the defendant is suing fora sum named, for herself” for the «

Me _suppprt of the children, which she has‘no right to do.” The -

‘Cou ‘sustained the demurrer and dismissed the- petition.

This ruling was sustained’ in an opinion by the saint is

Supreme Court! wherein it was said: dar ese

+ “We must further determine the law fixing the extent.

of the father’s duty to support and educate his minor

children. ‘Until majority, it is the duty of: the father

- to provide for the maintenance, protection, and educa-

tion ‘of his child.’ Civil Code. 1910, Section 3020. ‘So,

generally, it is the duty ofthe father, having the ability

_ to do so, to support hie minor children. .. . . This

is so because it is his duty, under. the above Section of.

the Code, to furnish such support if he-is able.

—- “To this general rulé there are exceptions. One of. .

these grows out of the principle that the duty to sup-

port and the ‘right to the custody and the earnings of

his minor children are reciprocal (Civil Code 1910, —

Section 3020, 3021; 46 C. J. 1256, Section 34), and

®

Sapie YARBOROUGH © i (ittti(‘i‘é«sdS

-

that whatever deprives the parent of the right sawed

., Custody and ‘services. of the child, without fault on

ha _ v. Georgia Ry. & Power Co., 163 Ga. 598,_ .

2, 136. S, E. 895). Another exception, arises where ~

part relieves him from the duty to support the child

Pe ‘parents have been divorced, and provision for the ~ ©

support of the children has been provided in the divorce’

‘proceeding. In suits for divorce, the judge presiding

"may, either in term or vacation, grant alimony, or de-.

‘cree a sum sufficient for the support of the family of

the husband dependent upon him, and who have a legal.

claim upon his support, as well as for the support of

_ -his. wife; ..°. . and in case a sum is awarded for

* the support of said family, the husband ~shall not be. °

liable to third persons for necessaries furnished them.’

- Civil Code 1910, Section 2980. If the jury trying a di-

vorce case on ‘the final verdict find in 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 whom, and until when it shall

be paid; and this they may do if, frgm any legal cause,

furnished the’ children embraced in the verdict. Section

2981, ei aes

“The petition discloses that the rene and wife —

had been divorced and that the. wife has ever since had

the custody of the children, who were ‘mere babies’

svn, the wife may not be entitled to permanent alimony; |

“anid: when such’ support shall thus be granted, the hus-

- eband shalt ‘ngt be liable to third persons for necessaries

‘when the divorce was granted, “The petition is silent’ .

as to the grant of alimony to the wife for ‘her support -

and: that of the children. In these circumstances, con- .

struing the petition’ ‘most strongly against -the pleader,

it is a fair presumption that the judge and jury, in

- granting to the wife a total divorce, made some pro-

. vision forthe support of the minor children. It would

- certainly be incumbent upon the children, who, after

.

20

Pd

lee W. A. YARBOROUGH v.

° s

. thé brant of the divorce, bring an action by their mother |

as next friend against their father for an allowance for

‘their support, to.allege facts which take their case out

_ of the above exceptions, ‘and in the absence of such al-

ae

legations the petition does not make a case which would

entitle the children toa judgment compelling the father ;

to make an allowance for their support. : |

“In Joyner v. Joyner, 131 Ga. 217; 225, 62S. E. 182,185

(18 L. R. A. (N.S.) 647, 127 Am. St. Rep. 220), this

‘court held that ‘alimony will not be allowed to the wife |

se

on a separate proceeding, after a total divorce has been

* granted at the instance of the husband.’ In that. case,

_the wife was seeking alimony in her own behalf alone.

_ In Hall v., Hall, 141 Ga. 361, 80 S. E. 992, this court

_.again approved the principle announced in Joyner v.

. Joyner, and further ruled that the wife cannot ‘in her

‘ewn name, and in behalf of their minor (children), ob-*

tan an order or judgment requiring her former hus-

bandNo. pay. her alimony, or an allowance in the nature

of alimony, in order that she may support’ their chil-

‘dren, ‘whose custody has been awarded to her-in the.

decree of divorce’. These decisions wodld-bé vain and

"without effect, Tithe divorced wife were permitted to

bring suit in the nar of minor children, who are of

such tender age as to be tmable to give direction or to be

consulted about the institutten, of the proceeding, for

’ the purpose of compelling the fat x to pay monthly in-

stallments of money, in the nature o “alimony, which

“would go to his diyorced wife in extinguishinent ¢ of ex-

penses paid or obligations incurred in supporting*the

a minor children of the husband.

“Again, in Sikes.v. Sikés, 158 Ga. 406, 123 S.-E. 694,

. this court held-that ‘a minor child cannot maintain in

' his own name, nor by guardian or next friend, a suit

for alimony, temporary. or permanent, against his

_* father;-the wife and mother being dead.’ The liability .

of the father to support his minor child is in no way

| _terwinated by the death of the mother. By such afflic-

SADIE YARBOROUGH 21 -

tion’ the importance of the discharge ‘of. this duty ‘by .

the father was rendered more imperative. We see no

valid reason why, if a childg@nnot sue in.its own name

its father for support in the nature of alimony, and-

cannot do so by some relative or other person as next

friend, it can institute such suit against the father ‘by

its mother, who has been divorced from the father, as _

its next friend. So we are of the opinion that this suit

was not maintainable under the decisions above cited.

“In Sikes v. Sikes, supra, the question whether a peti-.

tion in equity would lie for the recover)\of an amount

which the father = required to pay for_the sup-

port of his minor chi n was left open. In’ the first

place, it is. sufficient To say that the proceeding in the

present case is no more one in equity than the one dealt

with in Sikes v. Sikes. In that case the proceeding was

‘brought to enforce the performance by the father. of his

duty to support his minor child. It is true that the peti-

_ tioner prayed to have his father pay alimony~for-the

support of the child; but this in no way affected the ~

real purpose of the suit: The purpose of that proceediifg

and the proceeding i in the present case is identical. The

- proceeding in the present case is no more one in equity |

than the proceeding in-the Sikes case. °

“Conceding, however, that the present proceedirtg is

one in equity, can it be maintained in the name of these

infants by their mother as next friend? In other words,

_.has a court of equity jurisdiction to enforce the duty

of a father to support his minor children, ' in the absence

' " of a statute conferring such power? On this subject

Corpus Juris says: ‘But it has been held that equity

has general jurisdiction of a suit by a wife to compel

her husband to support their infant children, and a

wife who has furnished the children with necessaries

‘ may maintain. an action at law against the father -to

recover therefor, in jurisdictions where the wife’ Ss

marital disabilities have been removed by statute. Or-

dinarily a minor child has no direct right of action in

*-

eae) Ww. A. YARBOROUGH v.

“ equity against its parent to compel the performance

of the latter’s duty in respect of maintenance and edu-

cation.” 43 C. J. 1270, Section 50 (B). * * *% |

“In support of the proposition last cited from Corpus

Juris, the authors cite a number of cases in Section”

50, note 92. We believe, under the cases cited in this

note and other cases upon this subject, that the ‘weight

of authority is in favor of the proposition that these

infants cannot, in their own name or. by next friend,

maintain a‘suit in equity against their father to compel

him to furnish them with support and education, where

*- ° their divorced mother has’ their custody and is support-

ing them upon the strength of her credit. Where a wife

obtains a decree of divorce from her husband, and no

question as to the support of the children is determined

. * by the decree, or provision therefor made by it or by

contract, the father is not relieved from his obligation

to support his children; and, if he fail or refuse to dis-

charge such obligation, the mother in an original action

may recover of the father the amount of ‘the .expendi-

tures made by her after such decree for the proper sup-

port of the children. Hall v. Hall, supra.., This ruling is

fortified by the consideration that actions by minors

against their father should not be encouraged; certainly

where their mother can récover from the father ex-.

penditures made by her in support of their children,

where the father has not been relieved in some way

frem his duty to support them.” .

A dissenting opinion in this case, filed by Justices Hill

and Beck, seems predicated on the assumption that support

‘had not been provided for the children in the verdict or

decree in the divorce proceedings, thus rendering applicable

Civil Code, Section 2469, as follows: “Ufitil such provision

is made, voluntarily, or by décree or order of the court, the

husband shall be liable to third persons for the board and

support of the wife and for all necessaries furnished to her,

or for the benefit of his children in, her custody.” In this

SADIE YARBOROUGH . 28

- connection, and as exemplifying the reason of dissent from _

the majority opinion, the dissenting opinion cited Brown

v. Brown, 132 Ga. 712, 4 8. E. 1092, to the effect that “the

legal obligation of the father to support his children, and

his liability to third persons for proper support furnished

the children, exists after as well as before. a decree of di-

vorce granted the wife because of the misconduct of the

‘’ husband, where no support of the children is provided aad

in the divorce proceedings.”

Correspondingly, of course, where such provision is made,

and the father is absolved from liability for the further sup-

port of the children, there seems no reason nor justification,

under any viewpoint of consideration,—either that of the

majority opinion in the Hooten case or that of the minority

opinion,—to hold the father to further liability ; for, in such

cases, even as to necessities furnished to the children by

third persons, the father is expressly relieved from liability

by: the Code provision.

Gilbert v. Gilbert:

(151 Ga. 520, 107 S. E. 490):

It was held in this case that the judgment and decree of

divorce, awarding stated sums as permanent alimony for ~~

the wife and for the support and maintenance of the chil-

dren, “was final in its nature and passed beyond the con-

trol of the court for the purposes of change and modifica-

‘tion.” After discussing applicable . Georgia statutes, the

opinion concluded:

“Cases from other states, under the rulings of which

. the judge would be authorized to modify a decree al-

lowing permanent alimony, will be found to have been

rendered in the construction of the statutes of those

states which differ from ours, and are not binding as

authority here, in view of our statutes placing it within

the province of the jury to fix the amount of alimony

and allowance for the support of the minor children.

aes _ W. A.. YARBOROUGH v. © Sea

{32 ; 2 , ¢ ; 4

The amount allowable as alimony as support for the

children in the instant case was res adjudicata.”

> ot +

_ Robison v. Robison

(20 Ga. 521, 116 S. E. 19)

_ This ¢ase, in a syllabus by the court,. states relevant ©

propositions of law, concerning the custody and support of

‘children under the Georgia statutes and the decisions con-

; struing the same, as follows:

_ . “The father, if. ‘alive, is the natural guardian of his

child. Civ. Code 1910, Section 3032. As such, it is the

- father’s duty to provide for the maintenance and pro-

tection of the child until majority (Civ. Code 1910,

Section 3020); and during such period the child re-

Mains under the control of the father, who is entitled

to his services and the proceeds of his labor. Civ.-Code

1910, Section 3021. —

“This parental power, however, may be lost, among

other ways provided by the statute, by voluntary con-

. tract, releasing the right to a third person (Civ.-Code

1910, Section:3021 (1)). * * *

“Where the father’s rights are, as in the instant

| case, thus relinquished, the parental rights and obli-

- gations devolve upon the person standing in loco pa-

rentis. Eaves v. Fears, 131 Ga. 820 (2), 64 S. E. 269;

Southern R. Co. uv. Flemister, 120 Ga. 524 (5), 48 S: E.

160; Stoddard v. Campbell, 27 Ga. App. 363 (1), 108

S. EE: 311. Where a guardian of the person has been

thus appointed, his power over the person of his ward

is the same. with the father over his child, the guardian

standing in his place; and in like manner it is the duty —

of the guardian to protect and maintain and, according

to the circumstances of the ward; to onnante him.’ Civ.

Code 1910, Section 3058.

“Where, upon the father’s relinquishment of his pa-

rental authority and control, the ordinary has appointed

>

a

SADIE YARBOROUGH | | 25

a guardian of the person of a minor, the guardian is en- .

titled to the services of his ward, and upon him, prima

facie, devolves the duty of maintenance and education:

In the instant petition against the father by one who

it is alleged »was: thus regularly..and duly appointed

guardian of the person of a minor, to recover the-cost:

of alleged necessaries furnished by the petitioner. to-the

child, there being no special contract whereby the —

father assumed the duty of ljability for the furnishing

of the items claimed, no cause of action. was stated:

Supa eee ET Phe SNS LAR BTIEE SEL ETD

APA SNE SPM ET EINE E LOG