FORD v. FORD

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Argument of Joseph Aronstein

Chief Justice Earl Warren: Number 63, Barbara D. Ford, Petitioner, versus Herman A. Ford.

Would you wait just a moment please, we'll be ready.

Mr. Aronstein, I -- I just overlook the fact that this Court had appointed you to or you were appointed by the Court to defend this --

Mr. Joseph Aronstein: That's right.

Chief Justice Earl Warren: -- represent this man and I just want to express the appreciation of the Court to you for undertaking this public service.

It's always a comfort to us to know that lawyers are willing to give their time and their energy in the case of poor defendants and we appreciate it very much.

And of course Mr. Malchman, we appreciated the earnest and helpful manner in which you have presented your public agency too.

Thank you both gentlemen.

Argument of Irving Malchman

Mr. Irving Malchman: I consider it a privilege that the Court has appointed me, Your Honor.

Thank you.

Chief Justice Earl Warren: Now, Mr. Marion, you may proceed with your case.

Argument of W. Francis Marion

Mr. W. Francis Marion: May it please the Court.

This matter comes before the Court upon a writ of certiorari from the South Carolina Supreme Court.

The question involved is whether in an order of dismissal in a Virginia Court on a custody matter, full faith and credit should have been given.

Our State Supreme Court gave full faith and credit to an order of dismissal that recited in effect that upon representation of counsel the farthest have reached an agreement and that the case is therefore dismissed.

So briefly and factually, the petitioner and Herman Ford or husband and wife got into marital difficulties in 1959.

They resided in Sanford, North Carolina at the time.

Both of their homes were in Richmond, Virginia.

They went to Richmond, Virginia for purposes of seeing a marriage counsel or psychiatrist.

Justice John M. Harlan: Is Richmond the marriage domicile?

Mr. W. Francis Marion: No sir.

Actually, North Carolina was -- I believe they were originally married perhaps in Virginia, Your Honor, in 1952 but they had moved to Sanford, North Carolina after living in various places around the world actually.

But when they came to Richmond, Virginia for the purposes of seeing the marriage counselor, the respondent, Ford, announced that his wife that he was not going to take her back.

He left three small children at that time, age three, five and seven in Sanford, North Carolina.

As a result of it, she went back by herself to North Carolina and tried to locate the children and did locate the children and they go to court in the companionship of a German nurse who lived there.

She brought them back to Richmond, Virginia to the home of her mother in Richmond, Virginia and Ford thereupon instituted a habeas corpus proceeding in the City and County Civil Court of Richmond.

An exchange between counsel followed -- Richmond counsel followed, and as a result of exchange of correspondence, a -- this order of dismissal that was not displayed to the Court, there was no hearing upon the order whatsoever.

Just merely that counsel had said to the Court that an agreement had been reached; therefore, the matter is dismissed.

It was thereupon dismissed.

Barbara Ford that was in August of 1959, she subsequently came to Greenville, South Carolina, went to business school, obtained a job in Greenville and in January of 1960, her youngest child was brought to live with her.

The two older children in the meantime were living in Sanford, North Carolina with the father and the mother-in-law, her mother-in-law.

That continued until the summer of 1960 at which time, Mrs. Ford, the petitioner, brought in action in the Juvenile Court, Juvenile and Domestic Relations Court in Greenville, South Carolina to obtain custody of the children.

Herman Ford, the respondent was served when he came to Greenville to get the children.

He was served at that point and a hearing was held in Greenville.

Now, this was the first time there was a hearing on the merits of this case.

At the time, 11 witnesses testified including the minister, the -- all the parties involved, and as a result of that, an order was issued by the Juvenile and Domestic Relations Court which incidentally has exclusive jurisdiction in this malice under our procedure.

An order was issued to determine that custody should lie with the mother with reasonable visitation to the father during the holiday period and that is if they could work that part out, but the three smaller children should live with the mother.

In that -- in the proceeding, the respondent setup before the Domestic Relation judge in his pleadings that this order in Virginia, this order of dismissal was res judicata and that full faith and credit should be given.

The Juvenile and Domestic Relations judge in his order went into broader detail as to why he did not feel that full faith -- why it was not res judicata, that it wasn't the hearing on the merits, that it was -- no testimony was taken, and that the best interest of the children were not being served.

He based his order from the best interest of the three minor children, three, five and seven.

Though it subsequently appealed to the State Circuit Court which is the intermediate appeal court from this which affirmed the order of the Juvenile Court in every particular -- all of them saying that setting up a specified time the Domestic Relations Court had said that they shall agree as to a time when he could visit.

He setup certain specified time during the summer and Christmas holidays but otherwise affirmed it and again went into detail.

And his order -- the circuit judge, in his order, why this case in Virginia should not be res judicata to the action in South Carolina because the children's interest were not being served in Virginia action, it has never been demonstrated to the Virginia Court what the children -- the rights of the children.

They were simply -- as the circuit judge said were raised.

Not even before the court in Virginia on a habeas corpus proceeding was not before the Court.

The judge never saw him, never took in the testimony of the best interest.

And that, in his opinion, the South Carolina order was correct in giving custody to the -- primary custody to the mother, was secondary, in effect, custody to the father because the father would have them in the summertime.

That was subsequently appealed to our State Supreme Court which held that the order in Virginia should be given full faith and credit that it was a -- it was a proceeding, a judicial proceeding within the meaning of Article IV, Section 1 of the United States Constitution and Section 20, Title 28 that defines -- that full faith and credit should be given and that the orders of the Circuit and the Domestic Relations Court were reversed.

We filed a writ of certiorari and it was granted upon that basis that full faith and credit should not be given.

Basically, we have three -- setup three reasons where why any of which, we submit --

Justice Arthur J. Goldberg: Mr. Marion --

Mr. W. Francis Marion: Yes sir.

Justice Arthur J. Goldberg: Before you proceed with your argument, would you mind commenting for a moment on what appears on the respondent's brief that since what you have described to be the case, and since certiorari was granted, an action was brought -- a divorce action was brought in North Carolina.

Mr. W. Francis Marion: Yes, sir.

Justice Arthur J. Goldberg: And in that North Carolina action, the lower court, the court having jurisdiction awarded custody to the father with secondary custody to the mother, and why doesn't that moot the case now?

Mr. W. Francis Marion: Your Honor, I think that it does not moot the case.

I think that the United -- the North Carolina Court was without jurisdiction at that time to do so and we specifically objected to the jurisdiction of the North Carolina Court.

Now after there was a divorce action brought by Herman Ford, after the rendition of the order of the Juvenile Court in South Carolina, in other words, that he was there in personam in South Carolina, fought the case -- litigated the case and lost it.

He then, under the North Carolina statute, brought a divorce action which he had a right to do because they were at the time domiciled in North Carolina on the grounds of adultery.

That was a suit was filed denying that.

There was a denial, a general denial put in only.

Justice Arthur J. Goldberg: But wasn't there a jurisdiction in North Carolina to adjudicate the divorce?

And didn't your client appear in that case?

Mr. W. Francis Marion: They appeared -- yes sir.

Your Honor, she appeared on the -- well, if I may, on their adultery trial, that was never brought up.

Certainly, they have a section in North Carolina that has the two-year separation which after the end of two years, that was -- she did not contest to that.

In other words, filed an appearance through counsel not contested the divorce, all of which were subsequent to this action.

The counsel for respondent in their brief commented this was forced by the defendant or the respondent -- the petitioner in this case.

He forced that action into trial, the only action that was forced to trial was it was apparent on that action -- divorce action in North Carolina.

And that action was pushed to trial at the end of two years to get it off the docket one way or the other.

We did not consent to any custody matters.

They were subsequently a week after the divorce matter was heard.

They were heard -- set and heard a custody matter of which the counsel in North Carolina, Mrs. McDermott appeared solely for the purpose -- especially for the purpose of objecting to the jurisdiction of that court to hear the custody matter at all because the custody matter had been decided by the South Carolina Supreme Court, and at that time, was under an order of this Court issued by Justice Frankfurter, stating all matters from South Carolina Supreme Court and in effect reinstating the order of the Circuit Court awarding custody to mother.

Judge Frankfurter did that when the certiorari was pending up here.

We objected to the jurisdiction.

The state judge in North Carolina disregarded that and issued an order not on any change of circumstances but simply that the Virginia order was found.

Justice Arthur J. Goldberg: You made no application to this Court or the State of the North Carolina Court to protect the jurisdiction of this Court.

Mr. W. Francis Marion: We -- we know, so we did this.

We applied to the North Carolina Supreme Court and we're successful in having the North Carolina's judge -- Supreme Court judge of the North Carolina Court stating the order of the lower court in North Carolina and that was done.

Justice Arthur J. Goldberg: In other words, that case is being held in advance.

Mr. W. Francis Marion: Yes, sir.

Justice Arthur J. Goldberg: On appeal to the North Carolina Supreme Court.

Mr. W. Francis Marion: Yes, sir.

Justice Arthur J. Goldberg: But there is a decree of the North Carolina Court awarding custody.

Mr. W. Francis Marion: Yes sir.

And then an order, may it please the Court, an order revoking in effect there by the Supreme -- the Chief Justice of the Supreme Court of North Carolina which actually reinstates the order of the South Carolina Court, of the lower court in South Carolina and ordered the children back to South Carolina.

In other words, as soon as that all -- we appeared specially, we objected to it in the lower court then when the lower court issued its order, we thought that the proper procedure was to go to the North Carolina Supreme Court and if they refuse it, then we come to this Court.

But they didn't refuse it, they grant it, and reinstated the order.

So, we submit that that is moot as far as that case is down there concerned because it's awaiting the decision of this Court as to what court does have jurisdiction of the matter.

Chief Justice Earl Warren: Where are the children now?

Mr. W. Francis Marion: They are in South Carolina with their mother up by reason of an order of the Chief Justice of the North Carolina Court who ordered them back into South Carolina pursuant to the South Carolina order.

Chief Justice Earl Warren: Does the North Carolina courts have jurisdiction over the children at the time?

Mr. W. Francis Marion: No, sir.

Yes.

Yes, sir.

They were up there.

Chief Justice Earl Warren: The children were there.

Mr. W. Francis Marion: They were up there visiting during the summer under the order of the South Carolina Court that said the children should be with the father during the summer and the mother during school months.

They were there during the summer months, so the children were before the Court in effect in North Carolina.

Chief Justice Earl Warren: What is the status of that divorce case?

Is it -- had it been appealed?

Mr. W. Francis Marion: No, sir.

The divorce was granted upon the respondent, brought the divorce action.

The -- the --

Chief Justice Earl Warren: You mean the respondent here?

Mr. W. Francis Marion: Yes, they brought originally the divorce action and it was granted last -- this past August on the grounds of two years of separation which they have, a two-year statute in North Carolina.

Chief Justice Earl Warren: Well, is there -- is there an appeal from the order of custody in the -- in the North Carolina Court?

Mr. W. Francis Marion: Yes, sir.

Yes, sir.

Chief Justice Earl Warren: Where is that now?

Mr. W. Francis Marion: That is stated by the North Carolina Court until this Court passes upon the question of custody in effect.

It is before the North Carolina Supreme Court though.

Chief Justice Earl Warren: It is on appeal before --

Mr. W. Francis Marion: Yes.

Chief Justice Earl Warren: -- the North Carolina Court --

Mr. W. Francis Marion: Yes, sir.

But it's not --

Chief Justice Earl Warren: Would this -- would this case be dispositive of that issue --

Mr. W. Francis Marion: Yes, sir.

Chief Justice Earl Warren: -- if the children were actually there in North Carolina under the jurisdiction of that court?

Mr. W. Francis Marion: Well, we submit, Your Honor, that they would for the reason that the South Carolina Court had jurisdiction on the matter originally.

And they made their decision based upon all parties before them that the North Carolina Court, the subsequent decision in North Carolina simply ignored the South Carolina order, found no change of circumstances, expressly found no change -- the lower court found no change of circumstances and simply ordered them back because of this original Virginia action --

Chief Justice Earl Warren: I see.

Mr. W. Francis Marion: -- and they're basing it solely on Virginia.

Chief Justice Earl Warren: I see.

Mr. W. Francis Marion: Now basically, our position is that -- well, there are three positions.

Either that the Court is in the position, the South Carolina Court is in the position of parens patriae which is our third question.

And that there's only committee in divorce actions, no full faith and credit in divorce actions, that is in line with Justice Frankfurter's concurring opinion in May against Anderson, all in the alternative, we -- that the South Carolina Court didn't have to give -- they can give full faith and credit only to the extent that the Court in Virginia has to recognize the order in Virginia.

In other words, if the Court can amend in Virginia, if Virginia Court can amend its order, then the South Carolina Court can amend its order.

That is the Virginia order to award custody under Halvey against Halvey.

The third ground and I think in this instance is the most important ground and I'll put them in the inverse is that the Virginia order was not a judicial proceeding within the meaning of the Full Faith and Credit Clause of the United States Constitution, because there was no hearing, no testimony, it was simply an order of dismissal, voluntary dismissal, we submit.

And that as a result of that, the South Carolina Court would not have to give full faith and credit because in Virginia, the Virginia Court itself would not find that the original action was res judicata.

Now, all of these that the law relating to this custody matter in full faith and credit is, frankly, somewhat up in the air under the decision of May against Anderson and the Kovacs against Brewer and State against Halvey.

We submit though, that basically, the order in Virginia was an order of dismissal whether it was a 'dismissed agreed' as counsel for respondent claim and a 'dismissed agreed' by way of regression of the minute under Virginia law is what I would call a non-suit with prejudice, that you are non-suiting yourself with prejudice.

We submit that whether it was a simple order of dismissal or ‘dismissed agreed' order that the Virginia Court would have the right to review that order for the best interest of the children.

What was the best interest?

There was no hearing held on that in Virginia.

Therefore, that matter had never come before the Virginia Court.

It came before the Court for the first time in South Carolina.

That is, what is the best interest of the children?

Justice John M. Harlan: Your last point involves the question of what effect Virginia would give to its own decree.

Mr. W. Francis Marion: Yes, sir.

Justice John M. Harlan: You're going to discuss the Virginia law.

Mr. W. Francis Marion: Yes, sir.

The Virginia --

Justice Byron R. White: I take it there really hasn't been a decree to the court below as to the effect of the Virginia decree under Virginia law?

Mr. W. Francis Marion: I'm going a little further than that at one of my points, yes.

Justice Byron R. White: But you are asking us to do that.

Mr. W. Francis Marion: Yes, sir.

We are asking you to do that.

The Virginia law has clearly, we submit, a 'dismissed agreed' section.

There are four cases that we found in this in the Virginia courts that had a ‘dismissed agreed' order which is an order with prejudice, all involving contractual relationships, none of which involved domestic relationships.

That is custody matters at all.

There are a number of cases and we have cited them in our brief, particularly at page 12 of our brief, the Martin against Martin and (Inaudible) several cases relating to custody matters where the Court reviewed its own order and opened up an order for trial for prior adjudication of the matter even if it was in adjudication.

Now, basically, I'll go back to the point and I can't stress it too much in my own mind that this original habeas corpus action was -- there was no hearing on the merits, no -- nobody appear.

So there's some question of whether that was actually adjudication of the matter, but assuming, for the sake of argument that it was an adjudication, then under Virginia law, we submit, under the Semmes case, the Semmes and a wrap of cases, the Court could review its own order and a man in any way it's all fair under change of condition or change of circumstances.

Justice William J. Brennan: Well, Mr. Marion --

Mr. W. Francis Marion: Yes sir.

Justice William J. Brennan: Does your argument really come down to this in substance that in the nature of things, a judgment awarding custody of children can never be final for the purpose of the full faith and credit because it's always subject to amendment or modification particularly when there are change circumstances and it's the best of interest of the children not to be amended.

Mr. W. Francis Marion: Yes, sir.

Justice William J. Brennan: Is that basically what you're --

Mr. W. Francis Marion: That is basically one of our main arguments --

Justice John M. Harlan: But you have to reach --

Mr. W. Francis Marion: Your Honor, one of the three --

Justice John M. Harlan: You have to reach -- you don't have to reach that broad question if --

Mr. W. Francis Marion: No, sir.

Justice John M. Harlan: -- if we agree with you that Virginia law would have permitted the Virginia courts to use this decree.

Mr. W. Francis Marion: That's exactly right because that was what I was going on to add --

Justice John M. Harlan: So that your broad question is not necessarily involved.

Mr. W. Francis Marion: That's correct.

Now, our broad question is our third question that we took up in our brief and our second question is the one relating to the Virginia law in the erroneous interpretation in effect to the Virginia law by the South Carolina Court on full faith and credit.

Justice Arthur J. Goldberg: Mr. Marion, if your view is what you say it to be in the broad question, then doesn't the North Carolina decision moot your case because in North Carolina, didn't the Court make a finding of custody on what the best interest of the child or the children.

Mr. W. Francis Marion: Part of that -- that part, Your Honor, has warranted me a great deal but I think not because the Court did not make any finding, the North Carolina Court based its order solely upon the Virginia order as I understand it -- I mean --

Justice Arthur J. Goldberg: Well, I got the question in my mind.

If you look at page 68 of the respondent's brief, the Court does refer to the Virginia order in terms such as you have fairly described it I think.

But then it goes on and says, after saying so, it then says which terms of the agreement meet with the approval of this Court and this Court finds that such custodial arrangement is in the best interest of said infant children.

Isn't that a finding on the merits there?

Mr. W. Francis Marion: I don't point so in this respect, Your Honor that they make the specific finding, and I was trying to put my finger on it while you were reading it.

Justice Arthur J. Goldberg: It's right above that in the Virginia --

Mr. W. Francis Marion: That there was no change of -- change of circumstances in this -- between the time of the Virginia order and this one, that there had been no change --

Justice Arthur J. Goldberg: Right -- it is right above that -- few sentences.

Mr. W. Francis Marion: Yes, sir.

Justice Arthur J. Goldberg: A few lines above.

It did not offer to show any change of circumstances, then isn't this a conclusory finding right after that?

Mr. W. Francis Marion: Well, Your Honor, we submit not and we submit that North Carolina Supreme Court will agree on us in that respect because we appeared especially to object to the jurisdiction and to -- did not put -- there was no testimony taken.

Now, I think there were two grounds whether this wouldn't affect us.

One is that the -- their finding is such that there had been no change which we submit can ease the record.It shows that there have been plenty of changes.

And secondly, there was no testimony taken upon this from the respondent whatsoever.

The only testimony was relating really to this order in Virginia and the testimony of one counsel and there is not as pertaining to that but there was no testimony from the petitioner -- I said respondents, excuse me, the petitioner in this case, but no testimony up at the time because this Court had issued its order restraining in effect and reinstating the South Carolina order and we didn't think it was proper at that time.

We thought we would waive our rights, so to speak, if we took that into consideration.

But I do feel very strongly that in the broad question, that we don't have to get to it if the Court doesn't want to pass upon the broad question at this time which they did not in the Kovacs case or in May against Anderson or in the Halvey case.

The broad question has not been passed upon by the Court and it does not have to be passed upon by the Court in this case if, number one, our first question that the order in Virginia really was not a judicial proceeding then we have to go no further than that.

Number two, if it was a judicial proceeding that the Virginia Court could amend its own order, therefore, the South Carolina Court err in not amending, allowing to be amended.

Justice John M. Harlan: That's a great point.

The South Carolina Court proceeded on the basis that Virginia had jurisdiction, did it not?

Mr. W. Francis Marion: The South Carolina Supreme Court, the lower court --

Justice John M. Harlan: The South Carolina Supreme Court.

Mr. W. Francis Marion: Yes, sir.

They had jurisdiction which -- admittedly, Your Honor, they had jurisdiction of the mother and the father by the habeas corpus proceeding but it was simply a voluntary dismissal, we submit, without any matters being settled between the courts.

Justice John M. Harlan: Well, I don't quite understand -- the purpose of my question is I don't understand quite the difference between your first framed -- first argument on this Virginia law and your second one.

Mr. W. Francis Marion: Well, the first one is that we don't think that it is a judicial proceeding, that first, the Virginia order was a judicial proceeding within the Full Faith and Credit Clause and as defined by Title 28.

Justice William J. Brennan: You mean no adjudication of the merits?

Mr. W. Francis Marion: Yes, that there was no adjudication of the merits originally in Virginia.

Justice William J. Brennan: That's independently of what effect Virginia would give to this case.

Mr. W. Francis Marion: Yes, that's independently.

That's our first ground that there was no adjudication.

Therefore, there's nothing to give full faith and credit to whether there has not been an adjudication.

But secondly, if it was an adjudication, then the Court erred is not going into the Virginia law and seeing what could be amended or modified under the Virginia law.

Justice John M. Harlan: Well, ultimately, both those arguments depend on what Virginia law is.

How can we say without looking at Virginia law whether this was a “judicial proceeding”, as you said, it was not?

Mr. W. Francis Marion: Well, yes, I think you do and we have cited throughout our brief, the Virginia law and as I recall in Title 28 in supplementing or implementing the United States Constitutional Law Article IV Section 1 says according to the law and usage of the Court as to whether it's a judicial proceeding and the facts of the case were reviewed by the South Carolina lower courts and found after testimony was taken that that was not a judicial proceeding.

Yet our Supreme Court ignored the facts of the case and put it on the question of law that it just was a judicial proceeding, but the law of both decided in our brief particularly in question two of our brief, we go into the law of Virginia on what is the final order and what is not a final order.

And we submit that the order that simply said without taking any testimony that it wouldn't define the law, couldn't be.

Justice Byron R. White: Now, Mr. Marion --

Mr. W. Francis Marion: Yes sir.

Justice Byron R. White: -- would you -- assuming that the Virginia -- that the Virginia proceeding was on the merits and it was a judicial determination.

Let's assume that there'd been a hearing in that evidence in the determination of the best interest of the children, that the father had custody.

Then the same thing happens in South Carolina.

Would you -- would you say then that the -- and there was no -- nobody raised a single issue about full faith and credit in South Carolina, I assume that.

Mr. W. Francis Marion: Yes, sir.

Justice Byron R. White: But the Virginia -- or what does -- the South Carolina Court, would have been correct in saying that there must be a showing here of change of circumstances before the decree now in existence, entered by the Virginia Court, could be modified?

Mr. W. Francis Marion: Not -- a change of circumstances?

Justice Byron R. White: Yes.

Mr. W. Francis Marion: Yes sir, not a change of condition, which I think is a little bit different in change of circumstances.

I don't think it would have to be affirmatively plain.

Justice Byron R. White: But at least you would say that the -- that the wife is not entitled to relitigate in South Carolina, what she'd already litigated in Virginia?

Mr. W. Francis Marion: That's right sir.

We -- we --

Justice Byron R. White: You would not -- you would -- do you agree with that?

Mr. W. Francis Marion: No, sir.

We do agree with that.

And if assuming those facts, if it was litigated, we would agree that they couldn't relitigate the same issue.

Justice Byron R. White: So if the Virginia Court proceeding was a -- on the merits, it was a judicial determination full faith and credit is really beside the point and irrelevant here, isn't it?

Mr. W. Francis Marion: No, sir.

Justice Byron R. White: Because the South Carolina Court has said that under our law, we are going to give the Virginia proceeding.

We're going to make -- respect it and consider it a final judgment unless -- until there are change of circumstances or change of condition or whatever you want to call it, and there are none here under our law.

They didn't have to get to full faith and credit.

Justice John M. Harlan: Well, I suppose you say to that that the South Carolina Court is acting under the impact of the Full Faith and Credit Clause.

Mr. W. Francis Marion: Yes.

Justice John M. Harlan: And therefore, you are right.

This case ought to go back and have them make a determination whatever it may be freed of that mistaken assumption.

Mr. W. Francis Marion: Yes.

Justice Byron R. White: And they could make -- if they make their determination aside from the Full Faith and Credit Clause, that under South Carolina law, we are going to give that Virginia decree, a final effect, then there wouldn't be anything to talk about up here, would there?

Mr. W. Francis Marion: No, sir.

There would not because except that they made that statement, if I may, that was a dicta statement in their opinion and the -- there were plenty of circumstances within the opinion to put itself within the facts in the records to show a change.

Justice Byron R. White: Well, yes but we can't -- we can't --

Mr. W. Francis Marion: I understand that.

Justice Byron R. White: -- (Voice Overlap) South Carolina Court as to whether under their law, there was a change of circumstance.

Mr. W. Francis Marion: I understand that sir, but what I was saying though is that the impact, what I think they were intending to say that the impact of full faith and credit and that the other was to procure.

I don't think they intended to go that far, it's what I was getting at.

Justice Byron R. White: Well, yes but even -- I think they recognize that even if full faith and credit were applicable, it nevertheless, it does not present a stay from changing a custody decree based upon change of circumstances, so that it was essential for them to get to that issue and reach the holding that they did.

Mr. W. Francis Marion: We submit that it's dicta Your Honor and that it should be sent back because these dicta would be unnecessary to the opinion of the case, decision of the case and that we should have that right to determine that.

Justice John M. Harlan: How old were these children?

Mr. W. Francis Marion: They were at the time three, five, and seven.

They are now five, seven, and nine.

But at the time, the youngest was three years old, the next one five, and other is seven.

Justice Hugo L. Black: How long had they been in South Carolina then?

Mr. W. Francis Marion: They had been in there only about three months.

Well, the youngest child had been there about six to seven, nine months.

The other two children had come down at the start of the summer under the agreement decided, the private agreement between the parties through their counsel apparently in Richmond.

An agreement had been made that the children would stay in Sanford and that the -- until the school -- during the school year with the mother otherwise.

The mother testified that that was of a temporary arrangement.

Justice Hugo L. Black: Have they been there ever since?

Mr. W. Francis Marion: Have they been in Greenville?

Justice Hugo L. Black: Yes.

Mr. W. Francis Marion: Yes, sir.

Yes.

Justice Hugo L. Black: They're living with their mother ever since?

Mr. W. Francis Marion: Yes.

They're living with their mother and still are, except for going back for the summer.

Justice Hugo L. Black: Are you saying, from my understanding -- are you saying there that South Carolina would have tried this case now from your understanding that we've decided that they can't offer any evidence behind the decree that prevent them in Virginia?

Are you agreeing to that?

Mr. W. Francis Marion: No, sir.

I think they could offer testimony of the decree of that -- of that, Your Honor.

Justice Hugo L. Black: And up to date, whenever the date is.

Mr. W. Francis Marion: Yes, sir.

Justice Hugo L. Black: Then or now.

Mr. W. Francis Marion: I think that testimony if I -- if I understand Your Honor's question correctly, I think the testimony, if it were amended that the testimony could further -- the testimony could be taken as I understand it correctly, the question.

Justice Hugo L. Black: Up to now.

Mr. W. Francis Marion: Yes, I think so.

Justice Hugo L. Black: If I -- as I say if I understood the question, correctly.

Chief Justice Earl Warren: Mr. Walker.

Argument of Wesley M. Walker

Mr. Wesley M. Walker: Mr. Chief Justice, Associate Justices, and members of the Court.

There is and has been much disagreement throughout the proceedings as to facts.

I submit that there is an extensive recitation of the facts in the opinion of the South Carolina Supreme Court and I will not belabor that particular point.

The facts in the record, there had been substantial or extensive statements made by petitioner in her brief, also by respondent in his brief.

I say that at the beginning, there was a custody proceeding in Virginia.

It was a habeas corpus proceeding that was instituted for the custody of these minor children and that is the proper proceedings in Virginia to obtain and to determine the custody of the children.

Following the custody proceeding in Virginia and the order ‘dismissed agreed', under which agreement and order, the children or the primary custody of the children was given to the respondent.

It was some time following that that the petitioner moved to Greenville, South Carolina, and at that point, because of the question of Mr. Justice Black with respect to the length of time, these children had been in Greenville, I wish to state what the record will show and what is the fact.

It was sometime in late February of 1960 when the respondent here, the father, agreed for the three-year-old child to stay for a period of time with the mother in Greenville, South Carolina.

However, that child, the youngest child, returned to the custody of the father as provided under the order ‘dismissed agreed' and the agreement in Virginia to the father at the end of May, and the three children did not come to Greenville, South Carolina to see their mother.

Under the terms of this agreement which the father, respondent, scrupulously obeyed until the latter part of June, 1960, and it was within approximately six weeks following that that the mother instituted this action in Greenville for the custody of these children.

And as the record will show, it happened upon an occasion when the father had come to Greenville to see his children and to tell them of the death of his mother.

And at that time, he was served with process and this action was instituted in the Juvenile and Domestic Relations Court of Greenville County.

Following upon the order of that court, the matter was appealed to the Court of Common Pleas.

Justice Hugo L. Black: What did that Court hold?

Mr. Wesley M. Walker: The Juvenile and Domestic Relations Court gave custody to the mother.

There was an appeal to the Court of Common Pleas.

I disagree with my able friend that the jurisdiction of the Juvenile and Domestic Relations Court is exclusive.

The Court of Common Pleas is a Court of general jurisdiction in South Carolina.

Its powers are vested by the Constitution and that power cannot be and has not been cut down or diminished by the legislature.

The Court of Common Pleas then gave according to the words of its decree joint custody and expressly put custody in both towns.

However, the Court of Common Pleas did not recognize or accept the defense that the respondent had then opposed as to the Virginia decree being a valid decree and being res judicata to the issues that were in the South Carolina Court.

Following upon that decree of the Court of Common Pleas, there was the appeal to the Supreme Court of South Carolina and that Court issued its opinion and following upon that we are here pursuant to the petitioners and this Court's order of certiorari to the South Carolina Supreme Court.

At that point, if I may, I wished to make certain of the correctness of what transpired in North Carolina and particularly Queen.

The action in North Carolina which was undisputedly the marital domicile of the parties and of these children, the action in North Carolina was instituted by the respondent here in December of 1959.

That was an action in the Superior Court of Lee County, North Carolina for divorce and custody of the children.

That action was instituted at a time when the order of the Juvenile and Domestic Relations Court had just been issued but when the children were in North Carolina with their father, the respondent, pursuant to and under the terms of the agreed order of dismissal and the agreement in the Virginia Court.

Now, that action in North Carolina did not come on to trial until this past August of 1962.

The action, as I have stated, was instituted prior to the appeal to the Court of Common Pleas in South Carolina.

But there was only one action instituted in the Superior Court of North Carolina at the marital domicile and that action was for divorce and custody.

There has never been any separation of the actions and a separation of the counts if they might be termed that and that action, we submit, was brought to trial upon the motion of petitioner's counsel in North Carolina.

And that motion is printed at page 64 that is the order of the Court.

And the Superior Court of Lee County, North Carolina, the order of the Court pursuant to petitioner's motion is printed on page 64 of the appendix to respondent's briefs.

And I particularly call this Court's attention to that order because that order was issued.

First, I say, the motion was made by petitioner's North Carolina counsel in the Superior Court of North Carolina after the stay had been issued in this course by Mr. Justice Frankfurter stating the order -- the enforcement of the order of the South Carolina Supreme Court.

Petitioner's North Carolina counsel made this motion and as we'll be seeing, the Court says, this cause is coming on to be heard on motion of (Inaudible) Harrington, counsel for the defendant who is the petitioner here.

And it was said upon her motion peremptorily, it did proceed to trial in August and there the issues were met.

First, the divorce was granted by the jury.

Two days later in the same setting, the judge heard the custody issued.

He made his award the order being likewise printed in the appendix to this brief.

Did you --

Chief Justice Earl Warren: What -- pardon me --

Mr. Wesley M. Walker: Excuse me, Chief Justice.

Chief Justice Earl Warren: What is the significance of the fact that the attorney for the defendant who brought the case to trial on this motion.

Mr. Wesley M. Walker: I think that it has significance in this light that they have charged us with the proceeding and the respondent and that based on the order of Mr. Justice Frankfurter, stating the enforcement of the South Carolina order and they had the right to make a motion to bring it onto trial.

But my friend here said that the entire proceedings in North Carolina have been stayed, that they are being held in advance.

Now the only thing that it's being stayed is the order of the Chief Justice of the North Carolina Supreme Court who stayed the enforcement of the order of Lee County but that appeal has gone to the North Carolina Supreme Court and has been argued there.

Chief Justice Earl Warren: Did you proceed in the North Carolina case on the theory that the Virginia decree dismissing that original case, controlled the situation so far as the children are concerned or did you -- did you have a hearing on what is the best interest of the children?

Mr. Wesley M. Walker: They were both, Your Honor.

There was a testimony taken.

A testimony --

Chief Justice Earl Warren: Did you set up -- did you set up the decree of Virginia as being determinative of the custody of the children or did you pursue -- proceed on the theory that North Carolina had jurisdiction over the children.

Mr. Wesley M. Walker: If Your Honor please, it was proceeded on the basis originally that North Carolina had jurisdiction of the children and of the parties.

Chief Justice Earl Warren: Yes.

Mr. Wesley M. Walker: And the case went on to trial.

And at the trial, there was a testimony given by the respondent.

The petitioner here, although she was in a jurisdiction of the Court, she failed to personally come in and testify and her counsel stated at the trial that there was no claim by them of any change of circumstances subsequent to the Virginia decree.

And to complete the answer, the issue that is the question of the validity of the ‘dismissed agreed' order of the Virginia Court was injected into the trial before the judge of Lee County of the Superior Court.

It was argued by us, that is the counsel for the plaintiff there, the respondent here that the North Carolina Court was required to give to the order of the Virginia Court the same faith and credit that it would receive in Virginia.

Chief Justice Earl Warren: But it's your position then that if there were a change of circumstances, that the court in South Carolina even if it would have jurisdiction over the children?

Mr. Wesley M. Walker: Yes, sir.

No question of that.

The opinion of the South Carolina Supreme Court plainly stated that the matter of custody of the children, the issue is never final.

And that it can be varied by the Court with jurisdiction of the parties at anytime upon the showing of a change of circumstances.

Chief Justice Earl Warren: But was it conceded in the South Carolina case that there was no change of circumstances?

Mr. Wesley M. Walker: Yes, sir.

There had been no claim of it and the opinion of Mr. Justice Moss of the South Carolina --

Chief Justice Earl Warren: I ask you if it was conceded that in that proceeding that there had been no change of circumstances since the Virginia decree.

Mr. Wesley M. Walker: According to my interpretation, I answer that, yes sir.

Chief Justice Earl Warren: If there were, where will I find that from the record?

Mr. Wesley M. Walker: I would go back to the original statement made by the judge of the -- made by the judge of the Juvenile Domestic Relations Court.

I would refer to page 33 of the transcript, and right at that point, I'm pointing to the respondents, respondent here is exceptions to the Court of Common Pleas.

And I refer there in those exceptions and quoted what the judge of the Juvenile and Domestic Relations Court said during the presentation of the plaintiff's case who is the petitioner here.

Toward the bottom, I believe, 40123 that during the presentation of defendant's case, there is the respondent here.

The judge stated on the record, “Mr. Walker, I understand you are gong to undertake to prove the fitness of the father of the children.”

They have not attacked yet.

I think that that --

Chief Justice Earl Warren: Well, it does not say that -- does that say that the conditions are the same?

Mr. Wesley M. Walker: Yes, sir.

I think that it does because they made no other contention with respect to any change in the circumstances.

Chief Justice Earl Warren: Well, it might not have been necessary to prove the father is unfit to have a change in the custody of the children.

Mr. Wesley M. Walker: I think under the circumstances of this case, they are -- the facts of this case -- pleadings, there would have been sir.

Chief Justice Earl Warren: How does -- how would the -- how would the judge of the lower court in north -- in South Carolina know that there were no change of conditions because there was no -- no evidence of any kind in the Virginia Court.

There was no -- there were no findings of any kind by any court.

It was just dismissed by the party.

So how would he know whether there are any change of conditions or not?

Mr. Wesley M. Walker: Now, your question is how would the judge in the South Carolina Court --

Chief Justice Earl Warren: Exactly.

Mr. Wesley M. Walker: -- have known whether there were any change?

Chief Justice Earl Warren: Since the Virginia decree.

Mr. Wesley M. Walker: I think that there would be no way that he could know unless the parties -- the petitioner here offered proof of change of circumstances, unless he made some allegation of it and offered proof of the pleadings that make the issues in the case of course, and unless the petitioner offered some proof of a change of circumstances, then of course the judge could not know.

And here, the South Carolina Supreme Court found that there was neither allegation nor proof of a change of circumstance.

And that must be conclusive in a court of law -- in a court of record.

If they don't attempt to prove it, if they don't even allege it, then certainly, no trial court in a matter of this kind or any other matter would go beyond the pleadings and the proof of the case to determine whether or not there had been a change of circumstances.

No claim of it.

It was conclusive upon the Court.

Chief Justice Earl Warren: Well --

Justice Byron R. White: (Voice Overlap) finding of the court -- South Carolina Supreme Court, is that the one -- 206, is that the one you're referring to?

Mr. Wesley M. Walker: Yes, sir.

You will find that on page 206 and beginning with the first paragraph there, the first indentation at the top of the page on 206.

And we emphasize that entire paragraph to this Court because of the -- there the South Carolina Court was applying the South Carolina law.

And the South Carolina Court after applying the South Carolina law, citing its own authority and saying a judicial award of the custody of a child is never found.

And then saying, applying this rule to the instant case and after examining the pleadings and the entire record, we find neither allegation nor proof of any change of circumstances, authorizing a change of custody of the minor children of the parties of this action.

Chief Justice Earl Warren: Well, I notice in the -- on page 6 of the transcript at paragraph 4 of the amended complaint, I think if that's a complaint of a -- of the petitioner in this case, he says that this plaintiff was informed and believes that for the benefit of the minor children of the parties that she is the proper person to have the control of custody of said children, 5, that the plaintiff is informed and believed that the defendant has been miss -- the guilty of misconduct and there's an unfit person to have custody of the minor children of the parties.

The plaintiff alleges that she is entitled reasonable support for herself and for the minor children of the parties, why isn't that an allegation of the (Voice Overlap).

Mr. Wesley M. Walker: I think that is not an allegation of change of circumstance and that would be the very reason I would point to the statement that I did a few moments ago of the judge of the trial court, that is the Juvenile and Domestic Relations Court who said to me in the trial they have not attacked the respondent's fitness.

Now, he wouldn't go --

Chief Justice Earl Warren: He said he wouldn't go to hear anymore witnesses, didn't he?

Mr. Wesley M. Walker: He said at the end of -- yes, sir.

At the end of that case and when we propose witnesses as to the fitness of this respondent, then he said that there's no use to hear anymore.

He said that the -- that they have not attacked the character, and the reputation and the fitness of the respondent here.

Chief Justice Earl Warren: But apparently, wasn't that the end of the case, you say here -- or it says in the record on page 33 that the judge of the Court stated on the record during presentation of plaintiff's case, “Before going on to the next witness, both parties are good people, good family, good parents, I am going to exclude any further testimony as to their faithfulness as parents.

They are good parents.

They love their children and so forth”.

Mr. Wesley M. Walker: Yes, sir.

And he say --

Chief Justice Earl Warren: So, how do you know what they would have presented if they had an opportunity?

Mr. Wesley M. Walker: I beg your pardon.

Chief Justice Earl Warren: How do you know what the plaintiff might have shown if she had had an opportunity.

The judge said he wasn't going to hear anymore.

Mr. Wesley M. Walker: That was because they offered no evidence with respect to the plaintiffs or with respect to the defendant there, respondent here, as testimony.

If they had --

Chief Justice Earl Warren: But they said -- my point is simply this.

What does he mean by saying, “I am going to exclude any further testimony as to their faithfulness as parents” when the -- when there was an allegation in the complaint that said that the plaintiff has informed and believes that the defendant has been guilty of misconduct and he's an unfit person to have custody of the minor children.

Mr. Wesley M. Walker: The answer to that, Mr. Chief Justice, is that though they alleged it, they did not account to prove it.

Chief Justice Earl Warren: How can they prove it if he won't let them prove it by presenting witnesses?

Mr. Wesley M. Walker: Oh but he did.

He said, “I am not going to take any further evidence.

He didn't say that “I'm going at the outset of the trial.

I will exclude evidence.”

There was a testimony in that record as to the fitness of the respective parents.

The testimony was presented sir but he said, “I'm not going to take any further.”

There were numerous people who would testify as to the fitness and good character of each.

And he said, “It's obvious that they are both good parents”.

He found that and he said immediately, I think it was following upon that, to me, when I propose to put witnesses up as to the fitness of the respondent here.

That was where he said, “I understand you're going to undertake to prove it.”

He said, “They have not attacked it.”

And I answer you, Mr. Chief Justice by saying that in the trial of this case, true they did allege in the complaint, that is the complaint in the Juvenile and Domestic Relations Court, that the defendant, respondent here was an unfit person.

If --

Justice William J. Brennan: Didn't this judge awarded custody to the mother?

Mr. Wesley M. Walker: Yes, sir.

Yes, sir.

Justice William J. Brennan: Well then, he certainly didn't suffer by any act of proof.

Mr. Wesley M. Walker: No sir, not in that -- not in that judge's order.

No, sir.

Justice Arthur J. Goldberg: Well didn't they -- well didn't they in this Court the petitioner and the respondent both agreed that throughout, and including all the proceedings up to the North Carolina, there were no changes in circumstances from Virginia.

That is not a point in issue here.

Mr. Wesley M. Walker: That is not a point in issue here.

Chief Justice Earl Warren: Back to the first question I asked you, you didn't respond in that way.

Mr. Wesley M. Walker: I ask --

Chief Justice Earl Warren: Alright.

It's alright.

You go on with other (Voice Overlap) --

Mr. Wesley M. Walker: I beg your pardon, sir.

Chief Justice Earl Warren: -- part of the course purpose is all -- I took a lot of your time.

Mr. Wesley M. Walker: Well, as I understood --

Chief Justice Earl Warren: If you answer it that way --

Mr. Wesley M. Walker: -- the question, it was --

Chief Justice Earl Warren: -- I would have been through.

Mr. Wesley M. Walker: It was the extent to which they had conceded.

Chief Justice Earl Warren: Yes.

Mr. Wesley M. Walker: Well, I understood you too inquire if they had made a concession into the record, I think that there is no issue, no controversy about it, but if you had then asked me where would you find that in the record and I think you did, I cannot point to a place in the record where counsel for petitioner says expressly, we make no question of change of circumstances other than in the trial of the North Carolina case.

Now, if they did make that statement to the Court, now again, the judge of the Superior Court of Lee County stated that in his order that there was no contention of change of circumstances by either party.

We think that the --

Justice Hugo L. Black: You mean the change of circumstances with regards to the defendant and the plaintiff.

Mr. Wesley M. Walker: Or as to the minor children, any change of circumstances with respect to this course.

There was no contention of that and it was so stated into the record in the trial of the North Carolina case.

And the South Carolina Supreme Court, as I have heretofore stated, held that there was neither allegation nor proof of a change of circumstances.

We think that to view this matter, we think that the question as set forth on page 1 in the question presented in the brief of respondent is a proper statement of the question before this Court.

And to view from there, we say that we must look and see what was held by the South Carolina Supreme Court.

If I may point that up quickly we say first, that the South Carolina Supreme Court held that the Virginia order was ‘dismissed agreed', a ‘dismissed agreed' order under the Virginia practice.

Second, the South Carolina Supreme Court held that the judgment was res judicata in Virginia of the issues before the Virginia Court.

Third, the South Carolina Supreme Court held that Virginia courts would recognize and be bound by the decree in the absence of changed circumstances.

Fourth, the South Carolina Supreme Court determined the South Carolina law and held that upon a proper showing, the Court could make a further disposition of the child if new facts and circumstances made it desirable or proper for the best interest of the child and expressly held that a judicial award of custody of a child is never final.

Then the South Carolina Supreme Court applied the South Carolina rule to that holding and held that the entire record contained neither allegations nor proof of a change of circumstances.

The South Carolina Court further held that the ‘dismissed agreed' order of the Virginia Court was a bar to this action between the same parties for the same cause in the absence of any change of circumstances.

We think that the South Carolina Supreme Court reached the same result in its opinion that would have been reached by application of the Full Faith and Credit Clause or by rules of committee.

Therefore, the petitioner alleges here a constitutional question on the premise that the South Carolina Supreme Court held that it was precluded from inquiring into the best interest of the welfare of the minor children.

They contend that the South Carolina Court held that it was precluded by the Virginia decree and we submit that that is not the finding of the South Carolina Supreme Court.

The South Carolina Court held that the South Carolina law would be properly applied here, it did apply.

Now, we say that what they would attempt to do is to say that it was not res judicata and he said, not res judicata even if it was ‘dismissed agreed' and the Virginia cases to which they would point and one I believe that would come the closest to it would be the Buchanan case which is cited in their brief.

And I particularly call the Court's attention there that those cases which they cited referred to a contract made in Virginia prior to the institution of the litigation.

That is not the case here as to what happened in Virginia.

Here, the agreement was made.

It was negotiated.

It was part and parcel of the order ‘dismissed agreed' of the Virginia Court.

Now, with respect to parens patriae, we submit to this Court that parens patriae has no place when -- no standing, when in direct conflict with a mandate of the Constitution, we further say that here, the South Carolina Supreme Court carefully examined the record and supplied the very thing that the Kovacs case in the opinion by Mr. Justice Black was sent back to North Carolina to determine.

Here, the South Carolina went into that.

It founded according to its own law.

It applied.

And that very deficiency or the reason that this Court sent back the Kovacs case here -- is applied in the case here.

We contend in conclusion that under the mandate of the -- of the Constitution, the mandate of Article IV Section 1 that it is equally as strong with respect to a child custody case as to other cases because a custody decree is a judicial decree and it cannot be stated otherwise and there is no exception in the mandate of the Constitution with respect to a custody decree.

Justice Hugo L. Black: May I ask you this, sir.

As understand that you are in full faith and credit, you are saying as the Court said in the next to the last page of its opinion, it was bound by the full faith and credit to give full credit to this judgment.

Suppose that he go back now and it's shown that the children had been living with their parents for three years, this parent, is it your contention that that's settled?

And if they couldn't show that by reason of what's happened during these three years while the case was pending, the best interest of the child and not the parents, the best interest of the child wouldn't be served by keeping it with the parents, is that it?

Mr. Wesley M. Walker: We contend that if they wish that anytime under the South Carolina Supreme Court's decision to bring a new action contending a change of circumstances, they could do so and the South Carolina Court or the court that would have jurisdiction of the parties under the rule that is prevalent or the same in Virginia and in South Carolina, and in North Carolina, they could bring that action.

But the plaintiff would have the burden to show it.

Now, we say not --

Justice Hugo L. Black: What I was getting at was -- meeting a practical situation, how long have these parents -- children with this mother?

Mr. Wesley M. Walker: The children have been with their mother since first Christmas of 1959.

That's called -- it was immediately after January the 1st, 1960, but following upon that, they were with the father during the summer of 1960 and the father has had the custody of these children under the joint custody order of the Court of Common Pleas of Greenville County and he has had the children during the holidays and summer vacation period.

Justice Hugo L. Black: He now lives in Greenville?

Mr. Wesley M. Walker: No sir.

The father lived in Sanford, North Carolina which was the marital domicile and the domicile of the children.

Justice Hugo L. Black: Well, the thing has always bothered me about this full faith and credit with reference to my mind is that -- take a situation where the child has been -- litigation goes on for two to three years.

Then you say that you can take them away from there on the basis that this prior litigation settled in.

I believe something to be desired in the way of power of the state should have changed circumstances if you date res judicata absolute bar at the time the judgment runs.

Mr. Wesley M. Walker: My time is up, thank you, sir.

Chief Justice Earl Warren: We'll recess now.