Opinion
19437
June 7, 1972.
Messrs. Fogle Watson, of Orangeburg, for Appellant, cite: As to the Family Court's erring in awarding custody of the child to grandparents when the mother had not been found to be unfit: 72 S.C. 16, 51 S.E. 269; 73 S.C. 296, 53 S.E. 296; 11 Am. Jur. 1133, Section 328. As to the Family Court's erring in refusing to give Full Faith and Credit to the Marion County, Tennessee, Circuit Court Order: 50 Tenn. App. 258, 360 S.W.2d 931; 38 Tenn. App. 40, 270 S.W.2d 565; Article IV, Section 1 of the Constitution of the United States; 236 S.C. 487, 115 S.E.2d 68; 39 Tenn. Appl. 169, 281 S.W.2d 411, 52 A.L.R.2d 402. As to the Family Court's erring in failing to allow the unsigned Consent Order between Appellant and the child's father, to be admitted into evidence as a memorandum of an oral agreement and in refusing to allow any testimony pertaining to said oral agreement: 17 Am. Jur.2d page 365, Section 28; 242 S.C. 344, 130 S.E.2d 916; Rule 11 of the Rules of Practice and Procedure. As to the Family Court's erring in refusing to allow Appellant to call witnesses in reply: Rules 8 and 11 of the Rules of Practice and Procedure in the Family Court. As to the Family Court's erring in issuing an order dated October 16, 1970, taking away Appellant's child when no petition or other pleadings were presented to the Court, nor served upon Appellant prior thereto: Rule 1 and Rule 3 of the Rules of Practice and Procedure in the Family Court; 247 S.C. 179, 146 S.E.2d 609; 229 S.C. 8, 91 S.E.2d 538; Sections 10-401, 10-406 of the South Carolina Code; XIV Amendment to the Constitution of the United States; 16 Am. Jur.2d, Constitutional Law, Section 548, at page 942; 39 Am. Jur. Parent and Child, Section 17, at page 604. As to the Family Court's erring in failing to return custody to Appellant when there was no showing of any change of circumstances since Tennessee Court Order giving Appellant custody: 238 S.C. 521, 121 S.E.2d 4. As to the Family Court's erring in requiring the Appellant to carry the burden of proof throughout the hearing: 39 Am. Jur., page 614, Section 24; 84 S.C. 552, 66 S.E. 1049; 72 S.C. 16, 51 S.E. 269. As to the Family Court's erring in ordering that the unsigned Consent Order not be printed as a part of the record on appeal: Rule 8, Section 7 of the Rules of the Supreme Court of South Carolina; 248 S.C. 203, 149 S.E.2d 615.
Messrs. Bryant, Fanning Yarborough, of Orangeburg, for Respondents, cite: As to the Trial Court's properly holding that it was not bound in its determination of this case by the Tennessee Court's Order relied upon by Appellant: 242 S.C. 344, 130 S.E.2d 916; 369 U.S. 801, 82 S.Ct. 642, 7 L.Ed.2d 549. As to the Trial Court's award of custody to Respondents being supported by evidence that such custody is in the child's best interest: 27B C.J.S. Divorce, Sec. 309 (1) page 449.
Messrs. Fogle Watson, of Orangeburg, for Appellant, in Reply.
June 7, 1972.
This case involves the custody of Robert Ward Parler, a minor who was born on November 21, 1964. The appellant is the natural mother of the minor and the respondents are his paternal grandparents. The present proceeding, not the first involving the custody of this minor, was commenced by appellant in the Family Court of Orangeburg in March, 1971, and the appeal is from an order of that court, dated April 9, 1971, awarding custody of the minor to the respondents.
The questions involved are numerous and variously stated in argument by counsel. A careful review of the record convinces us, however, that the various issues involved in this case have simply not received the required judicial consideration by the trial court and the judgment must, therefore, be reversed and the cause remanded. Cf. Shecut v. Shecut, S.C. 185 S.E.2d 895. Here, as in Shecut, the power to remand a cause without decision is reluctantly exercised but we deem a remand and a completely new trial necessary for a proper and just disposition of the issue of the custody of this minor.
Since there must be a completely new trial, we refrain from discussing in detail either the issues or the evidence. For the guidance of the trial court, however, we deem it appropriate to comment upon the law as to the Tennessee judgment involved in this case. The United States Supreme Court has repeatedly reserved and declined to expressly decide the question of whether and to what extent the Full Faith and Credit clause of the Federal Constitution requires a recognition of a custody judgment of a sister state. Ford v. Ford, 371 U.S. 187, 83 S.Ct. 273, 9 L.Ed.2d 240; 239 S.C. 305, 123 S.E.2d 33; Kovacs v. Brewer, 356 U.S. 604, 607, 78 S.Ct. 963, 965, 2 L.Ed.2d 1008; N.Y. ex rel. Halvey v. Halvey, 330 U.S. 610, 615-616, 67 S.Ct. 903, 906-907, 91 L.Ed. 1133.
In the Ford case the United States Supreme Court held that even if the Full Faith and Credit clause were held applicable to a custody decree, South Carolina, nevertheless, would not be required to treat as res judicata a "dismissed agreed" custody order of a Virginia court. The basis of the decision was simply that under the circumstances the particular decree would not have been res judicata or conclusive upon a Virginia court in a subsequent proceeding.
Despite the fact that the United States Supreme Court has so far refrained from passing upon the basic constitutional issue, the general rule nevertheless prevails, throughout the nation, that the judgment of a court of one state as to the custody of children, after a hearing on the merits, must in the absence of fraud or want of jurisdiction be given the same full effect in every other state, as to the facts before the court at the time such judgment was rendered. Of course, such a judgment is not entitled to any greater force or effect elsewhere than in the state of rendition and does not prevent a change in custody by another court based upon a subsequent and substantial change of condition. 24 Am. Jur.2d 1135, Divorce and Separation, Sec. 998; 50 C.J.S. Judgments § 889 h (5), p. 487; Hartley v. Blease, 99 S.C. 92, 82 S.E. 991.
The judgment of the lower court is, accordingly, reversed and the cause remanded for a new trial upon all issues.
Reversed and remanded.