Opinion
Rehearing Denied Nov. 27, 1967.
Hearing Granted Dec. 27, 1967.
Thomas C. Lynch, Atty.Gen., Edward M. Belasco and William L. Zessar, Deputy Attys. Gen., for appellant.
Schuman, Novak & Cooper and Mark S. Novak, Beverly Hills, for respondent.
FOURT, Associate Justice.
This is an appeal from an order denying a petition for support for a minor child of the parties hereto.
Gail Elkind, sometimes hereinafter referred to as the mother, is the former wife of respondent Sylvan Byck, Jr., sometimes referred to herein as the father. She filed a petition in the Family Court of the State of New York, City of New York, on or about November 22, 1965. The petition set forth among other things that it was filed 'pursuant to the provisions of the Uniform Support of Dependents Law of the State of New York,' that petitioner resided at 1010 5th Avenue, New York City, that Kim Elkind, born April 19, 1957, is the daughter of Sylvan Byck, Jr., that Gail was married to Sylvan on or about May 4, 1956, at New York City, that the mother and father were divorced on or about July 31, 1957, in the Superior Court, Chatham County, Georgia, that the child is dependent upon the father for support and is in need of such support, that the father has neglected to provide 'fair and reasonable support' for the child, that the father is 36 years of age, resides in West Los Angeles and earns about $35,000 per year.
In a document entitled 'Testimony of Petitioner' the mother stated that she was 30 years of age, that she lived in an apartment on 5th Avenue in New York City and paid rent of $650 per month, that she was married and divorced as indicated in the petition, that she last lived with Sylvan in September, 1956, in Georgia, that the separation came about because he did not want any children, that Kim, a child, was born of the marriage on April 19, 1957, that the child resides with her mother and that the father has paid and does now pay the the sum of $60 per month for the support of the child pursuant to an order of the Georgia Superior Court of Chatham County, that the mother is remarried and has only such money as her present husband provides, that she requires for the child the sum of $750 per month, that defendant is a real estate broker, earning $20,000 per year in such business and has $15,000 per year income from a trust and interests in Savannah, Georgia, that the mother is not now receiving 'public aid.' A judge of the New York Court executed a certificate which in effect ordered that the proceedings be transmitted to the Superior Court, Los Angeles.
The father in Los Angeles County was notified of the hearing under the Uniform Reciprocal Enforcement of Support Act. Within due time the father filed in the Superior Court of the State of California, County of Los Angeles, a motion to dismiss the petition. Points and authorities in support of the dismissal set forth that the attempt at modification of the Georgia decree by the mother violated the full faith and credit clause of the United States Constitution, that section 30-220 of the Georgia Code provides for the modification of an alimony decree and states further that 'Such an application as hereinbefore authorized, can be filed only when the husband has been ordered by the Final Judgment in an alimony, or divorce and alimony suit, to pay permanent alimony in weekly, monthly, annual or similar periodic payments, and not where the wife, or child, or children, or both have been given an award from the corpus of the husband's estate in lieu of such periodic payment.' That the father in this instance had provided for his child out of the corpus of his estate in a trust and that that trust was approved and incorporated into the final decree of divorce which the mother now seeks to modify. When the cause came on to be heard the trial judge denied the application for support of the child 'by reason of lump sum settlement under the Georgia Statute.' The judgment and decree of Georgia were received into evidence. A timely notice of appeal was filed. It is apparent from the record that the parties, father and mother, each represented by counsel, entered into and agreement. The agreement recites that Sylvan M. Byck, Jr., as plaintiff, residing in Chatham County, Georgia, and Gail B. Byck, of New York County, New York, had married and were husband and wife, that they were separated and living separate and apart, that there were two separate actions then pending between the parties, one for legal separation, maintenance and support in the Supreme Court of the County of New York, State of New York, brought by Gail against Sylvan and an action for divorce brought in the Superior Court of Chatham County, Georgia, by Sylvan against Gail, who, in turn, had filed her cross action for divorce, support and custody of their minor child. Further, that it was the desire of the parties to come to 'complete and final settlement' of their rights and claims including support for Gail and 'including the custody and support of their minor child, KIM IVY BYCK, aged two months, the issue of said marriage.' The agreement recited that it was in final settlement of the rights of the child and in lieu of support and maintenance, past, present and future for the child. It was then provided that the agreement would become effective when certain conditions were met, such as the executing by both parties of the document, the approval of the document by a judge of the superior court and the filing of the same as part of the final decree for divorce, and that the judgment in New York obtained in the action filed by Gail be vacated and an order made expunging from the record the petition of Gail for separation and support. Sylvan in the agreement was to pay Gail the sum of $7,500 in cash settlement of any claim of hers. The father was to deposit with the Citizens and Southern National Bank, as trustee, the sum of $11,500, to form the corpus of a trust for certain designated purposes. Among the purposes recited are that the trust was to insure the support and maintenance of the child, as beneficiary, until the child reaches the age of 18 years 'and shall be in lieu of any claim which said child or the legal representative of said child now has or may hereafter be entitled to from her father or his estate for past, present and future support and maintenance, alimony or a year's support.' Further, it was agreed that the profits of the trust were to be applied by the trustee for payments of $60 per month for the support of the child. It was provided that under certain circumstances the corpus of the trust could be encroached upon and also that in the event the child died before arriving at the age of 18 years, the corpus of the trust was to be returned to Sylvan if he was alive, otherwise to his estate. Further, that should any funds remain in the trust upon the child's reaching 18, the trust should continue for the benefit of the child. The trustee, under the trust created, was given wide discretionary powers in the investment of the corpus of the trust.
'Article 4, Paragraph I of the United States Constitution states: 'Full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state.''
In addition to the $11,500 just mentioned, Sylvan was to deposit $2,500 with the trustee which sum was to be invested and reinvested as the trustee liked. The corpus and accrued income from the ($2,500) amount was to be used by the trustee for the sole purpose of providing a college education for said beneficiary, not to exceed $1,000 per year for four successive years from the time the child becomes cnrolled in an accredited college. The trustee is specifically prohibited from encroaching upon the corpus of the educational money and provisions are made in the event the child dies or refuses to go to college.
The custody of the child was to be vested in the mother, with certain specific visitation privileges to the father. Also, the child was made a ward of the Superior Court of Chatham County, Georgia, and was to remain a ward during her minority. It was also provided that the court in Georgia was to be requested, with the consent of all concerned, that a guardian ad litem be appointed for the purpose of investigating the case, the status of the parties, the needs and conditions of the child and what would be fair and equitable 'No changes in the financial condition or circumstances of the parties or of said minor shall authorize either of said parties and/or any court to change or modify the terms or provisions of said agreement or any judgment or decree that might be rendered in any regard to any of the matters set out in said agreement; the parties to this agreement having taken into consideration said changes of conditions or circumstances and also the possibility that an act or statute might be passed in the future authorizing the modification of any judgment or decree with reference to alimony. Said parties waive and renounce any rights which might accrue to them by virtue of any change or condition, or by virtue of any statute or law being passed that might grant to them rights that are not set out at the present time.
'* * * This agreement is to be incorporated into and made part of the final judgment or decree to be rendered in the event that a divorce is granted to the parties. In the event that a divorce is not granted to the parties, said agreement is to be final and conclusive as to all facts set out herein any may be recorded with or without being made the judgment of any court or courts having jurisdiction in the premises.'
On July 31, 1957, the cause came on to be heard in the Superior Court of Chatham County, Georgia. The judgment of the court of that date sets forth that 'it is the judgment of the court that a total divorce be granted * * *' and that the marriage contract between the parties is set aside as though no marriage contract had been entered into. The court decreed that 'The agreement made and entered into between the parties on the 3rd day of July, 1957, with reference to the support and maintenance of the defendant and their minor child, Kim Ivy Byck, including all of the provisions contained therein providing for the payment of a lump sum in lieu of permanent alimony for the defendant and the establishment of trust funds in lieu of alimony and for the support, maintenance and education of said minor child as aforesaid is hereby approved by the court and by order of court incorporated into in its entirety and made part of this decree. * * *' Further, it was decreed that the payments by made by the trustee as agreed upon in the agreement.
The judgment recites that the report of the guardian ad litem, Andrew J. Ryan, Jr., was submitted to the court and filed of record and the report was approved by the court and $250 was awarded to the guardian as reasonable compensation for his services. Custody of the child was placed with the mother in accordance with the agreement, and the child was made a ward of the court. The judgment lastly provided:
'Said agreement attached hereto, having made provisions for payment in lieu of permanent alimony for the defendant and minor child and having made provisions for attorney fees, no other award is being made, other than that contained in the agreement.
'The trust provisions of said agreement are approved and the trustee named therein is hereby named by said court as the trustee of the trust contained therein and said trustee shall be subject to the directions of this court for any construction of the terms of said agreement, irrespective of where the parties might be located at the time application for construction is made in said court.'
Appellant now asserts that the unalterable decree under Georgia law does not preclude California from making an added award of support for the child pursuant to the Uniform Reciprocal Enforcement of Support Act. Appellant contends that the parties 'Sold out' their minor child's right to support in exchange for marital freedom and that an unalterable decree of In Yarborough v. Yarborough, 290 U.S. 202, 54 S.Ct. 181, 78 L.Ed. 269, the defendant obtained a divorce in Georgia where both parties and their minor child were domiciled. The custody of the child was in the mother. The father paid a lump sum for the support of the child, pursuant to a decree which by Georgia law constituted a final discharge of the obligation. After the money of the lump was exhausted, the child now domiciled in South Carolina with the mother sued in that state to obtain further support from her father, who was still resident in Georgia. Property of the father in South Carolina was attached and personal jurisdiction was secured. Judgment awarding payment out of the property was affirmed by the Supreme Court of South Carolina and certiorari was granted by the United States Supreme Court. The latter court held in an opinion written by Mr. Justice Brandeis that the Georgia decree discharging the father's obligation to support the child was entitled to full faith and credit in South Carolina and reversed the Supreme Court of South Carolina.
In Yarborough, according to the facts set out in the South Carolina opinion (Yarborough v. Yarborough, 168 S.C. 46, 166 S.E. 877, 878), the father was required to pay to R. D. Blowers, as trustee for Sadie Yarborough $1,750 "the same being in full settlement of temporary and permanent alimony in said case, and in full settlement of all other demands of every nature whatsoever between the parties * * * (Italics added.) The amount to be thus received by R. D. Blowers as trustee for Sadie Yarborough, minor daughter of plaintiff and defendant, shall be expanded by him in his discretion for the benefit of the minor child, including her education, support, maintenance, medical attention and other necessary items of expenditure." The court ordered, "Upon the compliance with this order by the plaintiff he shall be relieved of all payments of alimony * * *" Sadie Yarborough, the child, brought the action in South Carolina for $1,000 plus $125 per month thereafter for support and maintenance. There was no guardian ad litem appointed for the child in Yarborough and she was not even a party to the action and she was in South Carolina at the time of the decree and action between her mother and father. The father of Sadie set up the defense of the full faith and credit clause of the Constitution and res adjudicata. The outcome of the cause has heretofore been stated. The court said among other things, 'He has fulfilled the duty which he owes her by the law of his domicile and the judgment of its court. Upon that judgment he is entitled to rely. * * * [T]he full faith and credit clause applies to an unalterable decree of alimony for a divorced wife. The clause applies, likewise, to an unalterable decree of alimony for a minor child. * * *' (Yarborough v. Yarborough, supra, 290 U.S. 202, 212, 54 S.Ct. 181, 185.)
In Daniel v. Daniel, 216 Ga. 567, 118 S.E.2d 369 the Supreme Court of Georgia had before it a proceeding on the petition of a divorced wife for modification of a final divorce judgment so as to increase the amount of the former husband's obligation for child support. The trial court held that where the final judgment incorporated an agreement, which was intended as a full satisfaction of the husband's obligation for child support, which gave property in lieu of periodic payments, and which did not authorize the court to modify the award, the court did not have jurisdiction to modify the award, in the absence of a reservation of jurisdiction with the consent of the parties. The Supreme Court affirmed the judgment. In Daniel, as in the case at bench, there was an agreement between the parties which settled the question of custody ' 1. The petition does not state a cause of action under Ga.L.1955, p. 630 (Code, Ann.Supp. §§ 30-220 et seq.) for modification of the divorce and alimony decree of October 6, 1955, because that statute, by its express terms, is inapplicable to a case such as this, where the wife or child or children or both have been given an award from the corpus of the husband's estate in lieu of weekly, monthly, annual or similar periodic permanent alimony payments. Code Ann.Supp. § 30-222.' (P. 371.)
In this case, unlike Ford v. Ford, 371 U.S. 187, 83 S.Ct. 273, 9 L.Ed.2d 240 the trial court caused a guardian ad litem to be appointed, apparently to investigate the interests of the child and the terms of the agreement which had to do with the child. In other words, this court cannot say that no testimony was taken or inquiry whatsoever took place in the Georgia court--indeed the court in Georgia allowed the guardian ad litem a fee of $250 as a commission, and presumably something more than a mere perusal of some agreement was accomplished.
Although the record does not disclose who the guardian ad litem was other than his name, respondent states in his brief that in fact he was the Solicitor-General of the Court.
Appellant cites Guillermo v. Guillermo, 43 Misc.2d 763, 252 N.Y.S.2d 171. In Guillermo, supra, however, the judgment was a Mexican decree, the needs of the child were never looked into by the Mexican court and the child's mother received a total income of $36 weekly in Social Security benefits and expended $25 weekly for her own necessary psychiatric treatment. In the case at bench appellant resides in an apartment on 5th Avenue in New York City, the rent for which is $650 per month and none of the other facts or factors of the two cases are comparable.
In the case at bench the mother was not constrained by any matrimonial dispute--she was free to litigate the matter and did so--she had her action in New York for support and maintenance and her cross-complaint for divorce in Georgia. The child was not subordinated to the vagaries of her needs. Indeed, under the agreement she received $7,500 and the child received considerably more. In other words, the child support in this case was not some incidental backwash from her desire to win her freedom from a comparatively recent marriage. She was not, as intimated by appellant, buying her matrimonial freedom at the price of selling the child's security. We see no inequities in this case.
There can be not the slightest doubt in this case that the parties wanted no uncertainty as to the finality or modifiability of the judgment in Georgia, where it was filed and entered. The statute is clear and the Supreme Court of Georgia has interpreted the language of the statute to mean what it sets forth and the Supreme Court of the United States has passed upon the statute. A California court is not in a better position to reinterpret Georgia law than the Supreme Court of Georgia. In other words, we do not envision it as the duty of this court to conjure up some original interpretations of the Georgia law in order to come to a determination that the Georgia decree is not in fact unalterable under the circumstances and to substitute our own views on what is for the best interests of a child in New York State. Whether we approve or disapprove of the Georgia statute is of little consequence--the fact is that the Constitution does not deny to Georgia the power to indulge in such a policy for itself.
Obviously this is not a case wherein the child or mother is destitute or perhaps may become a burden to the State of New York, and the father is not in California as an asylum to evade unfavorable support laws. There were no due process deficiencies in the proceedings. There is no contention that the father has disobeyed the judgment True it is that there is a strong public interest in the support of children, but there is also support, when the parties agree and the law permits (as in Georgia), for an unalterable decree with certainty and finality. It was one of the purposes of the full faith and credit clause to preclude dissatisfied litigants from taking advantage of the various courts of the country for relitigating in one state issues which had been duly and regularly decided in another--in other words, to make for some certainty and finality and put an end to harassing litigation.
The order is affirmed.
WOOD, P.J., and LILLIE, J., concur.