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HEDQUIST et al. v. GOTTKE et al.
18075.
WYATT, Justice.
Habeas corpus. Before Judge Moore. Fulton Superior Court. October 31, 19 2.
HEAD, Justice, dissenting.
1. Where, in a contest between parents and the maternal aunt and her husband, the custody of a five-year-old child was awarded to such third persons by a final judgment of a court of competent jurisdiction of a sister State, such judgment was conclusive that the maternal aunt and her husband were entitled to such custody and control, and that the parents had been deprived of their prima facie right to such custody under Code 74-106, 74108. Moody v. Pike, 200 Ga. 243 (1) (36 S. E. 2d, 752); Peeples v. Newman, 209 Ga. 53 (1) (70 S. E. 2d, 749).
2. Where, subsequently to the date of the judgment awarding the child to its maternal aunt and her husband, the parents brought a habeas corpus proceeding alleging a favorable change in their condition, irrespective of whether or not the evidence was sufficient to authorize a finding that he petitioners were fit and suitable persons to have the custody of the child, it was shown that the child was being well cared for in the home of the respondents in surroundings thoroughly conducive to its welfare, happiness, and future education--the award of the child to the respondents was not an abuse of discretion, and the judgment of the trial judge will not be disturbed.
In a divorce action between the plaintiff in error and her husband in Dade County, Florida, the custody of the minor children of the parties was awarded to the plaintiff, Mr. Virginia Hedquist, in the decree of divorce entered on July 23, 1951. Subsequently, Mrs. W. L. Hall, W. L. Hall Jr., Clyde Gottke, and Billie Gottke, as the mother, brother, brother-in-law, and sister of Mrs. Virginia Hedquist, filed a pleading entitled in the divorce cause, in which they prayed hat an order be issued to the Sheriff of Palm Beach County, Florida, to take into custody the minor children of Virginia Hedquist and her husband, Hugo R. Hedquist, and that said children be delivered to "any person, institution or agency the court may direct", and that, upon a final hearing, the court enter an order awarding the custody and control to the petitioner, Mrs. W. L. Hall. On this petition the Circuit Judge of Dade County, Florida, entered an order awarding the youngest child, Deborah Hedquist, to Billie Gottke and her husband, Clyde Gottke. In this decree the circuit judge recites that Mrs. Virginia Hedquist and Hugo R. Hedquist have remarried and are residing in Palm Beach County, and it is this last order which the majority of this court holds to be a conclusive judgment that the parents of the minor child are not entitled to her custody.
Under the law of this State no right exists in a third person to intervene in a divorce action, and particularly would this be true after a final decree had been entered and custody of the minor children of the parties fixed. Girtman v. Girtman, 191 Ga. 173, 178 (11 S. E. 2d, 782). But if, as pointed out in Girtman v. Girtman, supra, in division 4 of the opinion, at page 180, the pleadings of the intervenors could be classed as a habeas corpus proceeding, the Judge of the Circuit Court of Dade County would not have jurisdiction of the cause, under our law, because his own order shows that the husband, Hugo Hedquist, and his wife, Mrs. Virginia Hedquist, and their minor children were residents of Palm Beach County, Florida.
The full faith and credit clause of the Federal Constitution (article 4, section 1, paragraph 1, Code, 1-401) requires that the courts of this State give force and effect to the valid judgments of a sister State when properly authenticated. As previously pointed out, I am willing to concede that the laws of Florida may grant to a circuit court judge the right to allow an intervention in a divorce case after the cause has been fully adjudicated; and it may permit, by such intervention or by habeas corpus, the dragging of citizens, with their children, from one end of the State to the other. The laws of Florida, however, can not repeal the Divine Law, the laws of Florida can not repeal the natural law, and under these laws it is the duty, obligation, and the right of parents to have the custody of their children, to maintain, to support, to protect, and to educate them.
The full faith and credit clause requires that we should give effect to judgments a d decrees from a sister State when there has been a compliance with the laws requiring authentication of such judgments and decrees. Code, 38-627; Atkinson v. Atkinson, 160 Ga. 480 (128 S. E. 765). The alleged Florida decree, while pleaded, was not proven as required, was not binding, and there was uncontradicted evidence before the trial judge showing the fitness of the parents to have custody of their child. We therefore can find no satisfactory reason why the trial court should not have followed the natural law, which is the law of force and effect in this State.
Johnson, Hatcher, Rhudy & Meyerson and Stanley P. Meyerson, for plaintiffs in error. Harold Sheats and Paul B. Huckeby, contra.
ARGUED JANUARY 15, 1953 -- DECIDED FEBRUARY 24, 1953 -- REHEARING DENIED MARCH 10, 1953.
Saturday May 23 04:13 EDT


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