U.S. Supreme Court YARBOROUGH v. YARBOROUGH, 290 U.S. 202 (1933)

[Page 290 U.S. 202, 204]

Mr. Justice BRANDEIS delivered the opinion of the Court.

On August 10, 1930, Sadie Yarborough, then sixteen years of age, was living with her maternal grandfather, R. D. Blowers, at Spartansburg, S.C. Suing by him as guardian ad litem, she brought this action in a court of that state to require her father, W. A. Yarborough, a resident of Atlanta, Ga., to make provision for her education and maintenance. She alleged 'that she is now ready for college and is without funds and, unless the defendant makes provision for her, will be denied the necessities of life and an education, and will be dependent upon the charity of others.' [Footnote 1] Jurisdiction was obtained by attachment of defendant's property. Later he was served personally within South Carolina.

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with the right in each to remarry, was entered on June 7, 1929; the wife was ordered to pay the costs; and jurisdiction of the case 'was retained for the purpose of further enforcement of the orders of the court theretofore passed.' [Footnote 3] Among such orders was the provision for the maintenance and education of Sadie here relied upon as res judicata. It was entered on January 17, 1929 (after the rendition of the first verdict), and provided: 'Parties, plaintiff and defendant, having personally and in writing, consented hereto, and their respective counsel of record having likewise in writing consented hereto. 'It is considered, ordered and adjudged that the following settlement be hereby made the order of the Court, the same being in full settlement of temporary and pemranent alimony in said case, and in full settlement of all other demands of every nature whatsoever between the parties.'

[Page 290 U.S. 202, 207]

of One Thousand, Seven Hundred Fifty Dollars ($1,750.00). ... The amount to be thus received by R. D. Blowers as Trustee for Sadie Yarborough, minor daughter of plaintiff and defendant, shall be expended 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. 'Upon compliance with this order by the plaintiff, he shall be relieved of all payments of alimony and counsel fees, in said case, except that the payment due under the prior order of Court of the sum of Fifty Dollars ($50.00) for the month of January, 1929, (to Mrs. Yarborough for the support of hereself and Sadie) shall be by him paid, in addition to the other amounts hereinbefore named. ... 'The provisions of the order of the Court heretofore entered fixing the times and the places when plaintiff, W. A. Yarborough, shall have the right to visit and have with him, out of the presence of the defendant, the said Sadie Yarborough, minor daughter of plaintiff and defendant, are hereby continued in force.'

W. A. Yarborough complied fully with this order.

By the law of Georgia, it is the duty of the father to provide for the maintenance and education of his child until maturity. [Footnote 4] Willful abandonment of a minor child, leaving it in a dependent condition, is a misdemeanor. [Footnote 5] The mere loss of custody by the father does not relieve him of his obligation to provide for maintenance and education, even where the custody passes to the mother pursuant to a decree of divorce. [Footnote 6] If the father fails to make such provision, any person (including a divorced wife)

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who furnishes necessaries of life to his minor child may recover from him therefor, unless precluded by the terms of the decree in the divorce suit or otherwise. [Footnote 7] In case of total divorce, the court is authorized to make, by its decree, final or permanent provision for the maintenance and education of children during minority, and thus fix the extent of the father's obligation. [Footnote 8] But, even if the decree for total divorce fails to include a provision for the support of minor children, they cannot maintain in their own names, or by guardian ad litem, or by next friend, an independent suit for an allowance for education and maintenance. [Footnote 9]

[Page 290 U.S. 202, 209]

$1,750 to be 'expended 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,' was not intended to relieve the father from all further liability to support Sadie. This contention appears to have been abandoned. It is clear that Mrs. Yarborough, her husband, and the court intended that this provision should absolve Sadie's father from further obligation to support her. That the term 'permanent alimony' as used in the decree of the Georgia court means a final provision for the minor child is shown by both the legislation of the state and the decisions of its highest court. [Footnote 10] The refusal of the South Carolina court to give the judgment effect as against Sadie is now sought to be justified on other grounds.

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like any other judgment, becomes unalterable after the expiration of the term. [Footnote 12]

Third. It is contended that the Georgia decree is not binding upon Sadie, because she was not a formal party to the suit, was not served with process, and no guardian ad litem was appointed for her therein. In Georgia, as elsewhere, a property right of a minor can ordinarily be affected by legal proceedings only if these requirements are complied with. 13 But the obligation imposed by the Georgia law upon the father to support his minor child does not vest in the child a property right. This is shown by the fact, among other things, that the minor cannot maintain in his own name, or by guardian ad litem or by next friend, a suit against his father to enforce the obligation. [Footnote 14] The provision which the Georgia law makes of permanent alimony for the child during minority is a legal incident of the divorce proceeding. As that suit embraces within its scope the disposition and care of minor children, jurisdiction over the parents confers eo ipso jurisdiction over the minor's custody and support. Hence, by the Georgia law, a consent (or other) decree in a divorce suit fixing permanent alimony for a minor child is binding upon it, although the child was not served with process, was not made a formal party to the suit, and no guardian ad litem was appointed therein. [Footnote 15]

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Fourth. It is contended that the order for permanent alimony is not binding upon Sadie because she was not a resident of Georgia at the time it was entered. Being a minor, Sadie's domicile was Georgia, that of her father; 16 and her domicile continued to be in Georgia until entry of the judgment in question. She was not capable by her own act of changing her domicile. 17 Neither the temporary residence in North Carolina at the time the divorce suit was begun,18 nor her removal with her mother to South Carolina before entry of the judgment, effected a change of Sadie's domicile. [Footnote 19] It is true that under the Georgia Code a minor may acquire a domicile apart from the father if he has 'voluntarily relinquished his parental authority.' But the mere fact that the parents were living separately at the time the suit for divorce was brought and that Sadie was with her mother does not establish such relinquishment. [Footnote 20] Compare Anderson v. Watt, 138 U.S. 694, 706, 11 S.Ct. 449. The character and extent of the father's obligation, and the status of the minor, are determined ordinarily, not by the place of the minor's residence, but by the law of the father's domicile. [Footnote 21] Moreover, this is not a case where the scope of the jurisdiction acquired by the Georgia court rests upon the effectiveness of service by publication upon a nonresident. Mrs. Yarborough filed a cross-bill, as well as an answer; and in the cross-bill prayed 'that provision for permanent alimony be made for the' support and education of Sadie. Thus

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the court acquired complete jurisdiction of the marriage status and, as an incident, power to finally determine the extent of her father's obligation to support his minor child. [Footnote 22]

Fifth. The fact that Sadie has become a resident of South Carolina does not impair the finality of the judgment. South Carolina thereby acquired the jurisdiction to determine her status and the incidents of that status. Upon residents of that state it could impose duties for her benefit. Doubtless, it might have imposed upon her grandfather who was resident there a duty to support Sadie. But the mere fact of Sadie's residence in South Carolina does not give that state the power to impose such a duty upon the father who is not a resident and who long has been domiciled in Georgia. [Footnote 23] 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. [Footnote 24] It was settled by Sistare v. Sistare, , 30 S.Ct. 682, 28 L.R.A.(N.S.) 1068, 20 Ann.Cas. 1061, that the full faith and credit clause applies to an unalterable decree of alimony for a divorced wife. The clause

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have no effect outside the state which rendered it. 10 Jurisdictional requirements being satisfied, the decree is effective to end the marriage for all states, but enforcement of its prohibition against remarriage in anothed state, even though the parties do not take up their residence there, would infringe upon the interest which every state has to maintain the stability of a union entered into according to the laws of the place of celebration. [Footnote 11]

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suitable because of his greater needs, or because of the increased financial ability of the parent to provide for them,15 or that the child may be maintained from other sources. [Footnote 16]

In view of the universality of these principles, it comes as a surprise that any state, merely because it has made some provision for the support of a child, should, either by statute or judicial decree, so tie its own hand as to foreclose all future inquiry into the duty of maintenance however affected by changed conditions. [Footnote 17]

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and also permits suit by the minor child maintained by guardian ad litem. The measure of the duty is the present need of the child and the ability of the parent to provide for it. In this case the suit was begun by attachment of the father's property in South Carolina and by personal service of process upon him there. The court found that the lump sum paid for support of the child under the Georgia decree had been expended; that she was justifiably residing with her mother in South Carolina rather than with her father in Georgia; that she was then without financial resources, and that, considering her station in life and the circumstances of her father, anallowance for the future of $50 a month for her education, maintenance, and support would be fair and just, and this amount was ordered to be paid for that purpose from the attached property.

The opinion of this Court leaves it uncertain whether it is thought that the Constitution commands that the duty of support prescribed by Georgia, the domicile of the father, shall be dominant over that enjoined by South Carolina, the domicile of the child, in any event, or only after the duty has been defined by a judgment of Georgia. [Footnote 21] It is attested by eminent authority that the Fourteenth Amendment, at least, does not prevent the state of the child's domicile from imposing the duty, Restatement of Conflict of Laws, 498A,22 a view confirmed by the uniform rulings that the father is liable to the criminal process of the state of the child's residence, though before, and at all times during his failure to conform to the duty demanded by that state, he has been domiciled elsewhere. State of

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judgment of another state from providing for the future maintenance and support of a destitute child domiciled within its own borders out of the property of her father also located there. Here the Georgia decree did not end the relationship of parent and child, as a decree of divorce may end the marriage relationship. Had the infant continued to reside in Georgia, and had she sought in the courts of South Carolina to compel the application of property of her father, found there, to her further maintenance and support, full faith and credit to the Georgia decree applied to its own domiciled resident might have required the denial of any relief. Cf. Bates v. Bodie, , 38 S.Ct., 182, L.R.A. 1918C, 355; Thompson v. Thompson, 226 U.S. 551, 33 S.Ct. 129. But, when she became a domiciled resident of South Carolina, a new interest came into being, the interest of the state of South Carolina as a measure of self-preservation to secure the adequate protection and maintenance of helpless members of its own community and its prospective citizens. That interest was distinct from any which Georgia could conclusively regulate or control by its judgment, even though rendered while the child was domiciled in Georgia. The present decision extends the operation of the full faith and credit clause beyond its proper function of affording protection to the domestic interests of Georgia, and makes it an instrument for encroachment by Georgia upon the domestic concerns of South Carolina.

Mr. Justice CARDOZO concurs in this opinion. Footnotes

Footnote 1 There was no suggestion that plaintiff would be destitute or become a public charge. Indeed, her grandfather testified that he was able and willing to provide $125 a month for her education and maintenance (the amount sought by plaintiff), if her father was unable to do so.

Footnote 2 Section 2944 of the Georgia Civil Code 1910 provides: 'Divorces may be granted by the superior court, and shall be of two kinds-Total, or from bed and board. The concurrent verdict of two juries, at different terms of the court, shall be necessary to a total divorce.'

Footnote 3 Custody of Sadie had been awarded to the mother; and it had been ordered that the father be 'allowed the privilege of visiting his minor daughter, and of having her with him, out of the presence of the defendant, on the second and fourth week-ends of each month, from the close of school hours Friday until Sunday night of said week ends, during school terms, and at like times during vacation; at which times the plaintiff shall be entitled to take said minor daughter on pleasure trips of reasonable distance returning her punctually at the conclusion of the allotted time.'

Footnote 4 Georgia Civil Code 1910, 3020.

Footnote 5 Georgia Penal Code 1910, 116; Jackson v. State, 1 Ga.App. 723, 58 S.E. 272.

Footnote 6 Brown v. Brown, 132 Ga. 712, 715, 64 S.E. 1092, 131 Am.St.Rep. 229.

Footnote 7 Brown v. Brown, 132 Ga. 712, 64 S.E. 1092, 131 Am.St.Rep. 229; Hall v. Hall, 141 Ga. 361, 80 S.E. 992; Hooten v. Hooten, 168 Ga. 86, 90, 147 S. E. 373; Garrett v. Garrett, 172 Ga. 812, 159 S.E. 255; Pace v. Bergquist, 173 Ga. 112, 114, 159 S.E. 678.

Footnote 8 The order for permanent alimony for the child is a matter distinct from that for permanent alimony for the wife. See Johnson v. Johnson, 131 Ga. 606, 62 S.E. 1044. The applicable sections of the Georgia Civil Code 1910 annotated are:'s 2981. Alimony for children 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 shall 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 likewise not be liable to third persons for necessaries furnished the children embraced in said verdict who shall be therein specified.'s 2982. Judgments, how enforced. Such orders, decrees, or verdicts, permanent or temporary, in favor of the children or family of the husband, may be enforced as those in favor of the wife exclusively.'

Footnote 9 Sikes v. Sikes, 158 Ga. 406, 123 S.E. 694; Hooten v. Hooten, 168 Ga. 86, 147 S.E. 373. Compare Maddox v. Patterson, 80 Ga. 719, 6 S.E. 581; Humphreys v. Bush, 118 Ga. 628, 45 S.E. 911.

Footnote 10 See note 7. Also Coffee v. Coffee, 101 Ga. 787, 28 S.E. 977; Johnson v. Johnson, 131 Ga. 606, 608, 609, 62 S.E. 1044; Gilbert v. Gilbert, 151 Ga. 520, 523, 107 S.E. 490; Gaines v. Gaines, 169 Ga. 432, 434, 435, 150 S.E. 645.

Footnote 11 Coffee v. Coffee, 101 Ga. 787, 790, 28 S.E. 977, 978: 'In the present case the parties dispensed with a jury trial upon the question of an allowance of permanent alimony, and, by consent, invoked a decree of the court fixing the allowance upon the terms stated in the decree. 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.'

Footnote 12 See Wilkins v. Wilkins, 146 Ga. 382, 91 S.E. 415; Gilbert v. Gilbert, 151 Ga. 520, 107 S.E. 490; Gaines v. Gaines, 169 Ga. 432, 433, 150 S.E. 645. The decree for the child's custody is, however, subject to modification at any time. Brandon v. Brandon, 154 Ga. 661, 115 S.E. 115.

Footnote 13 Groce v. Field, 13 Ga. 24; Hill v. Printup, 48 Ga. 452, 454.

Footnote 14 See cases in note 9.

Footnote 15 Compare Kell v. Kell, 179 Iowa, 647, 650, 161 N.W. 634; Snover v. Snover, 10 N.J.Eq. 261, 262; Marks v. Marks, 22 S.D. 453, 457, 118 N.W. 694; Wells v. Wells, 11 App.D.C. 392, 394.

Footnote 16 Compare Georgia Civil Code (1910), 2992; Jackson v. Southern Flour & Grain Co., 146 Ga. 453, 91 S.E. 481; Civil Code (1910), 2184.

Footnote 17 Jackson v. Southern Flour & Grain Co., 146 Ga. 453, 91 S.E. 481.

Footnote 18 McDowell v. Gould, 166 Ga. 670, 671, 144 S.E. 206.

Footnote 19 Compare Taylor v. Jeter, 33 Ga. 195, 81 Am.Dec. 302.

Footnote 20 Hunt v. Hunt, 94 Ga. 257, 21 S.E. 515.

Footnote 21 Macdonald v. Macdonald, 8 Bell & Murray (2d) 830; Coldingham v. Smith, (1918) 2 K.B. 90. Compare Irving v. Ford, 183 Mass. 448, 67 N.E. 366, 65 L.R.A. 177, 97 Am.St.Rep. 447; Blythe v. Ayres, 96 Cal. 532, 31 P. 915, 19 L.R.A. 40.

Footnote 22 Schroeder v. Schroeder, 144 Ga. 119, 86 S.E. 224. Compare State v. Rhoades, 29 Wash. 61, 68, 69 P. 389; Anderson v. Anderson, 74 W.Va. 124, 81 S.E. 706; State ex rel. Shoemaker v. Hall (Mo. Sup.) 257 S.W. 1047; Laumeier v. Laumeier, 308 Mo. 201, 271 S.W. 481; Laumeier v. Laumeier, 237 N.Y. 357, 143 N.E. 219, 32 A.L.R. 654; Id., 242 N.Y. 501, 152 N.E. 401.

Footnote 23 It appeared that W. A. Yarborough, having married again, invited Sadie to his home in Atlanta and offered to maintain her there. She refused.

Footnote 24 To the effect that in civil law countries and the many jurisdictions which have adopted the civil law the duties of support are determined by the nationality or the domicile of the obligor, see Bar, International Law: 'Private and Criminal (Tr. Gillespie, 1883, 102, 105 ); Fiore, Le Droit International Prive (4th ed. French tr. Antoine, 1907 ) 627-629; Makarov, Pre cis de Droit International Prive (1933) 409, 410; Lapradelle-Niboyet, Re pertoire de Droit International (1929) Article: 'Aliment' 17-23.

Compare Home Insurance Co. v. Dick, 281 U.S. 397, 50 S.Ct. 338, 74 A.L.R. 701.

Footnote 25 Compare Cowles v. Cowles, 203 App.Div. 405, 196 N.Y.S. 617.

[Footnote 1] It may be assumed for present purposes that the child was sufficiently represented in the Georgia proceedings. But the point is doubtful. See Walder v. Walder, 159 La. 231, 105 So. 300; Graham v. Graham, 38 Colo. 453, 88 P. 852, 8 L.R.A.(N.S.) 1270, 12 Ann.Cas. 137. The reasoning of the opinion of the Court-that, since Georgia does not give the child a cause of action, it has no property right and need not have been represented-would lead to the conclusion that what was decided in Georgia was something quite different from that which was in litigation and decided in South Carolina; that the child's suit is upon a right afforded only by the law of South Carolina; and that the Georgia suit, giving no similar right but only a right to the mother, could have no effect upon the present litigation.

[Footnote 2] The mandatory force of the full faith and credit clause as defined by this Court may be, in some degree not yet fully defined, expanded or contracted by Congress. Much of the confusion and procedural deficiencies which the constitutional provision alone has not avoided may be remedied by legislation. Cook, Powers of Congress under the Full Faith and Credit Clause, 28 Yale Law Journal, 421; Corwin, The 'Full Faith and Credit' Clause, 81 University of Pennsylvania Law Rev. 371. Cf. 33 Columbia Law Rev. 854, 866. The constitutional provision giving Congress power to prescribe the effect to be given to acts, records, and proceedings would have been quite unnecessary had it not been intended that Congress should have a latitude broader than that given the courts by the full faith and credit clause alone. It was remarked on the floor of the Constitutional Convention that, without the extension of power in the Legislature, the provision 'would amount to nothing more than what now takes place among all Independent Nations.' Hunt and Scott, Madison's Reports of the Debates in the Federal Convention of 1787, p. 503. The play which has been afforded for the recognition of local public policy in cases where there is called in question only a statute of another state, as to the effect of which Congress has not legislated, compared with the more restricted scope for local policy where there is a judicial proceeding, as to which Congress has legislated, suggests the congressional power.

[Footnote 3] M'Elmoyle v. Cohen, 13 Pet. 312.

[Footnote 4] Grover & Baker Machine Co. v. Radcliffe, 137 U.S. 287, 299, 11 S.Ct. 92.

[Footnote 5] The extent to which the doctrine may be applied to judgments for penalties has not been clearly defined. Leflar, Extrastate Enforcement of Penal and Governmental Claims, 46 Harvard Law Rev. 193. Compare 33 Columbia Law Rev. 492, 507. And see People of State of New York v. Coe Manufacturing Co., 162 A. 872, 10 N.J.Misc. 1161 (New York judgment based on tax claims given full faith and credit); 42 Yale Law Journal, 1131.

[Footnote 6] See, also, Weidman v. Weidman, 274 Mass. 118, 174 N.E. 206, 76 A.L. R. 1359; Palmer v. Palmer, 265 Mass. 242, 163 N.E. 879; 42 Harvard Law Rev. 701.

[Footnote 7] That corporations cannot invoke the privileges and immunities clause does not explain the difference between these two cases. Application of the doctrine of forum non conveniens, while more limited when applied to actions based on foreign judgments, is not altogether precluded. 33 Columbia Law Review, 492, 502.

[Footnote 8] But see Beale, Constitutional Protection for Divorce, 19 Harvard Law Rev. 586; Haddock Revisited, 39 Harvard Law Rev. 417. Compare Harper, Collateral Attack upon Foreign Judgments, 29 Michigan Law Rev. 661, 679.

[Footnote 9] Cf. Cole v. Cunningham, , 10 S.Ct. 269, with Union Pacific R. Co. v. Rule, 155 Minn. 302, 193 N.W. 161. See 39 Yale Law Journal, 719. Cf. Tennessee Coal, I. & R. Co. v. George, 233 U.S. 354, 34 S.Ct. 587, L.R.A. 1916D, 685.

[Footnote 10] In re Estate of Ommang, 183 Minn. 92, 235 N.W. 529; Bauer v. Abrahams, 73 Colo. 509, 216 P. 259; Dudley v. Dudley, 151 Iowa, 142, 130 N. W. 785, 32 L.R.A. (N.S.) 1170. Sometimes the state granting the divorce will not recognize the validity of the later marriage, Wilson v. Cook, 256 Ill. 460, 100 N.E. 222, 43 L.R.A.(N.S.) 365, unless the party had changed his domicile before remarrying, Pierce v. Pierce, 58 Wash. 622, 109 P. 45. Thus the divorce proceedings, on the one hand, and the marriage record, on the other, are denied full credit. See Beale, Laughlin, Guthrie and Sandomire, Marriage and the Domicil, 44 Harvard Law Rev. 501; 16 Minnesota Law Rev. 172. The present case is not distinguished by arguing that in the divorce situation it is a question of faith and credit to be given to a statute, and not to judicial proceedings. Goodwin v. Goodwin, 158 App.Div. 171, 173, 142 N.Y.S. 1102. While it is usually a statute that prescribes the disability which is to attach to the divorce, it is the judicial proceedings themselves which are in question as much as in the present case, where the judgment for support is unalterable within the state by virtue of the Georgia statute. Without denying the validity of a marriage in another state, the privileges flowing from marriage may be subject to the local law. State v. Bell, 7 Baxt. (66 Tenn.) 9, 32 Am.Rep. 549 ( husband and wife of different races may be prohibited from cohabiting within state though lawfully married elsewhere); Restatement of Conflicts of Law, 181.

[Footnote 11] Further examples might be referred to. The policy of the state in which the foreign judgment is set up fixes the periods of limitations, and the priority which foreign judgment creditors may have. M'Elmoyle v. Cohen, 13 Pet. 312; Cole v. Cunningham, 133 U.S. 107, 112, 10 S.Ct. 269. A state may, under some circumstances, deny the authority of foreign officers to deal with things within its territory, see Great Western Mining & Mfg. Co. v. Harris, 198 U.S. 561, 576, 25 S.Ct. 770, even though the officer's action took place in the foreign state, Clarke v. Clarke, 178 U.S. 186, 194, 20 S.Ct. 873; Hoyt v. Sprague, , 631. The limitation upon the doctrine of such cases which this Court has imposed in holding that certain statutory successors to corporations in a foreign state shall have the privilege of maintaining suit, Converse v. Hamilton, 224 U.S. 243, 32 S.Ct. 415, Ann. Cas. 1913D, 1292; Bernheimer v. Converse, 206 U.S. 526, 27 S.Ct. 755, illustrates the appropriate function of this Court in balancing the interests of local and foreign sovereign. The extrastate force given to a voluntary assignment in receivership, as compared with the more restricted effect of an assignment which is commanded by court order, further demonstrates the nature of the full faith and credit mandate. See Cole v. Cunningham, 133 U.S. 107, 129, 10 S.Ct. 269; Catlin v. Wilcox Silver-Plate Co., 123 Ind. 477, 482, 24 N.E. 250, 8 L.R.A. 62, 18 Am.St.Rep. 338; Zacher v. Fidelity Trust & Safety-Vault Co. (C.C.A.) 106 F. 593; Laughlin, Extraterritorial Powers of Receivers, 45 Harvard Law Rev. 429, 461 ff. The problems in relation to the extrastate consequences of the dissolution of a corporation are becoming important. Compare Clark, Receiver, v. Williard et al., Trustees (Mieyr v. Federal Surety Co.) Supreme Court of Montana, 23 P.(2d) 959, decided April 1, 1933, certiorari granted October 23, 1933, 290 U.S. 619, 54 S.Ct. 103, 78 L.Ed. --, with National Surety Co. of New York v. Cobb (C.C.A.) 66 F.(2d) 323, certiorari denied 290 U.S. 692, 54 S. Ct. 127, 78 L.Ed. --, November 13, 1933.

[Footnote 12] This control is particularly important in the case of the children of divorced couples. They are usually young; in Maryland over 60 per cent. are under ten years of age when divorce occurs. Divorces are often not contested, and the intervention of a disinterested judge is frequently nominal. Allowances for children in the divorce court are typically small. Marshall and May, The Divorce Court, 31, 79, 80, 82, 226-231, 323.

[Footnote 13] Frequently a criminal statute provides as an alternative penalty for nonsupport of a child that the guilty party post a bond or otherwise provide for the future support of the child. Such a statute exists in South Carolina. Section 1123, South Crolina Code 1932. Cf. Mason's 1927 Minn. St. 10136. The state's special interest in securing the father's liability is emphasized, not only by the frequency of penal measures, but also by the fact that in some places a statute is necessary before any suit can be maintained against the father. Huke v. Huke, 44 Mo.App. 308; Rawlings v. Rawlings, 121 Miss. 140, 83 So. 146, 7 A.L.R. 1259. Cf. Hooten v. Hooten, 168 Ga. 86, 147 S.E. 373. See Madden, Domestic Relations, 383. Contra: Doughty v. Engler, 112 Kan. 583, 211 P. 619, 30 A.L.R. 1065. Cf. Craig v. Shea, 102 Neb. 575, 168 N.W. 135. Likewise notable is the extensive repudiation of the view that the duty to support is correlative with the right to custody and services. See Jacobs, Cases on Domestic Relations, 772.

[Footnote 14] The duty of support is also enforced through entertaining suits by third parties to recover for necessaries furnished. However, conflicting policies make this an unsatisfactory method, for the courts seek to discourage wrongful action on the part of wives or minors in leaving their homes, and have consequently gone to some lengths in refusing to impose liability on the father, unless he has been at fault in breaking up the home. Baldwin v. Foster, 138 Mass. 449. See Mihalcoe v. Holub, 130 Va. 425, 107 S.E. 704. Contra: Maschauer v. Downs, 53 App.D.C. 142, 289 F. 540, 32 A.L.R. 1461. See Birdsong v. Birdsong, 182 Ky. 58, 206 S.W. 22. Cf. Sanger Bros. v. Trammell (Tex. Civ. App.) 198 S.W. 1175.

[Footnote 15] See State v. Miller, 111 Kan. 231, 206 P. 744, 22 A.L.R. 788; Walder v. Walder, 159 La. 231, 105 So. 300; People v. Miller, 225 Ill.App. 150; Hilliard v. Anderson, 197 Ill. 549, 552, 553, 64 N.E. 326. See, also, State v. Moran, 99 Conn. 115, 121 A. 277, 36 A.L.R. 862; McCloskey v. St. Louis Union Trust Co., 202 Mo.App. 28, 213 S.W. 538; State v. Langford, 90 Or. 251, 176 P. 197. An attempt to relieve himself of liability by a settlement or other contract will normally be ineffectual. See Harper v. Tipple, 21 Ariz. 41, 184 P. 1005; Edleson v. Edleson, 179 Ky. 300, 200 S.W. 625, 2 A.L.R. 689; Michaels v. Flach, 197 App.Div. 478, 189 N.Y.S. 908, affirming 114 Misc. 225, 186 N.Y.S. 899; Von Roeder v. Miller, 117 Misc. 106, 190 N.Y.S. 787. Cf. Henkel's Estate, 13 Pa.Super.Ct. 337. Higher education is properly an object of a suit for an increased allowance. Cf. Esteb v. Esteb, 138 Wash. 174, 244 P. 264, 246 P. 27, 47 A.L.R. 110; Hilliard v. Anderson, 197 Ill. 549, 64 N.E. 326; Commonwealth ex rel. Smith v. Gillmor, 95 Pa. Super. Ct. 557; Sisson v. Schultz, 251 Mich. 553, 232 N.W. 253; Moskow v. Marshall, 271 Mass. 302, 171 N.E. 477.

[Footnote 16] Hunter v. State, 10 Okl.Cr. 119, 134 P. 1134, L.R.A. 1915A, 564, Ann. Cas. 1916A, 612; State v. Waller, 90 Kan. 829, 136 P. 215, 49 L.R.A.( N.S.) 588; Cruger v. Heyward, 2 Desaus (S.C.) 94, 110; State v. Constable, 90 W.Va. 515, 112 S.E. 410; Gulley v. Gulley, 111 Tex. 233, 231 S.W. 97, 15 A.L.R. 564. Cf. Taylor v. San Antonio Gas & Elec. Co. (Tex. Civ. App.) 93 S.W. 674. When suit is instituted by the wife, considerations of equity as between husband and wife may obtrude, McWilliams v. Kinney, 180 Ark. 836, 22 S.W.(2d) 1003; Fulton v. Fulton, 52 Ohio St. 229, 39 N.E. 729, 29 L.R.A. 678, 49 Am.St.Rep. 720, unless the wife is unable to support the child, State v. Miller, 111 Kan. 231, 206 P. 744, 22 A.L.R. 788; White v. White, 169 Mo.App. 40, 154 S.W. 872.

[Footnote 17] Georgia seems to be the only state to do so. 2 Vernier, Family Laws, 196 ff. A similar attempt by the courts of another state has been held null and void and subject to collateral attack. See Walder v. Walder, 159 La. 231, 105 So. 300.

[Footnote 18] Cf. Laumeier v. Laumeier, 308 Mo. 201, 271 S.W. 481. And there could be no complaint if South Carolina chose to follow the Georgia determination Cf. Laumeier v. Laumeier, 242 N.Y. 501, 152 N.E. 401.

[Footnote 19] In the custody cases a very similar situation is presented. As conventionally stated, the rule has been that the most the full faith and credit clause can require is that the prior ruling shall be deemed conclusive in the absence of an asserted change in circumstances. See Calkins v. Calkins, 217 Ala. 378, 115 So. 866. Cf. People ex rel. Allen v. Allen, 105 N.Y. 628, 11 N.E. 143, affirming 40 Hun (N.Y.) 611. In one state a distinction has been drawn between personal rights of the parents and the interest of the state in the welfare of the child: unless there is an allegation that the best interest of the child requires a change in custody, the parties will be bound. Wear v. Wear, 130 Kan. 205, 285 P. 606, 72 A.L.R. 425. See In re Bort, 25 Kan. 308, 309, 37 Am.Rep. 255. Another state gives credit to the extent that prior determinations of fact are deemed incontrovertible, but exercises an independent judgment of the conclusion to be drawn from them. Commonwealth ex rel. Rogers v. Daven, 298 Pa. 416, 148 A. 524. In no case has there been such an abject surrender as this Court now requires of South Carolina. A tendency may be discerned to give conclusive force to the determinations of the state wherein the child resides, as long as that residence continues, but that upon change of residence the questions will be open in the state to which the change is made. In re Erving, 109 N.J.Eq. 294, 157 A. 161, 164; Milner v. Gatlin,139 Ga. 109, 113, 76 S.E. 860; Steele v. Steele, 152 Miss. 365, 118 So. 721; In re Alderman, 157 N.C. 507, 73 S.E. 126, 39 L.R.A.(N.S.) 988; Griffin v. Griffin, 95 Or. 78, 84, 187 P. 598; In re Groves, 109 Wash. 112, 114, 186 P. 300; cf. Barnes v. Lee, 128 Or. 655, 275 P. 661. See 80 University of Pennsylvania Law Rev. 712; 81 University of Pennsylvania Law Rev. 970; Restatement of Conflict of Laws, 153, 156. Reasonable latitude should be preserved to states where the child is found to take temporary police measures, even though contrary to the terms of a decree of the state of residence. Cf. Hartman v. Henry, 280 Mo. 478, 217 S.W. 987.

[Footnote 20] Supra, note 13.

Footnote 21 Cf. Home Insurance Co. v. Dick, , 50 S.Ct. 338, 74 A.L.R. 701, with Kryger v. Wilson, 242 U.S. 171, 37 S.Ct. 34.

Footnote 22 'A state may impose upon one person a duty to support another person if'1. The person to be supported is domiciled within the state, and the person to support is within the jurisdiction of the state. ...'