Borys v. Borys

76 N.J. 103

Opinions

Per Curiam.

This case presents a substantial federal constitutional question. The Appellate Division held that the full faith and credit clause does not compel recognition of a sister state decree which purports to alter the custody of minor children domiciled in New Jersey. We affirm.

I

Nancy Jean and William John Borys were married in New Jersey in 1969, and moved to Florida the following year. They had two children, William John Borys, Jr., born in New Jersey in 1969, and Mario Jean Borys, born in Florida in 1970. The mother and children returned to New Jersey in February, 1973, and the Boryses were granted a Florida divorce four months later. The divorce decree awarded permanent custody of the children to the mother.

The father, who had remained in Florida, later sought to change the custody order. Both parents appeared. In an order entered September 16, 1974, the court vacated its original order, continued custody with the mother on a temporary basis, and gave the father visitation rights in Florida. The court retained jurisdiction to enter further custody orders. In December, 1974 the Florida court informally interceded to require the father to return the children to the mother after a visit. On August 27, 1975 the mother again sought assistance from the Florida court when the father failed to return the children at the conclusion of their visit. At that time the father was also alleged to be in arrears in his child support payments. Meanwhile, the paternal grandparents, Florida residents, had petitioned the court (with their son’s consent) to award them custody of the children. The court arranged for the children to be returned to their mother in New Jersey upon the mother’s stipulation that the children would be returned to Florida for a custody hearing.

In accordance with the Elorida court’s instructions, the paternal grandparents paid the travel expenses of the mother and children for a hearing in Elorida on September 11, 1975. Although the mother reported to the judge’s chambers on September 10, she and the children did not appear at the hearing. Instead, they returned to New Jersey, allegedly upon the advice of Elorida counsel. Notwithstanding their absence, the court proceeded to hear testimony from the children’s father and paternal grandparents and one of the grandparents’ neighbors. All four witnesses were examined by the grandparents’ attorney. Neither the mother nor the father was represented by counsel. The court also had before it two letters concerning the mother’s 'care of the children from the New Jersey Division of Youth and Eamily Services, dated November 20, 1974 and September 26, 1975, and a letter concerning the son from the Raritan Bay Mental Health Center to the Division of Youth and Eamily. Services. Finally, the court directed the Circuit Court Counselors Office to investigate the grandparents’ suitability as custodians. On January 20, 1976 the Florida court- entered an order which held the mother in -contempt and awarded permanent custody of the children to the grandparents.' This order could not be enforced because the children . were no longer in Elorida.

On February 5, 1976, the mother started custody proceedings in New Jersey. Her complaint recited the existence of the Elorida order, but asserted that the Elorida court had lacked jurisdiction. The grandparents initiated a separate Chancery Division action on February 13, 1976, seeking recognition and enforcement of the Elorida custody award. The mother and grandparents moved for summary judgment in their respective actions, and the mother also moved for consolidation. The Chancery Division denied the motion for consolidation and ordered summary judgment for the grandparents on the ground that the mother had not alleged any changed circumstances since entry of the Elorida order. The Appellate Division correctly reversed and remanded for a plenary hearing on the consolidated complaints. The grandparents appealed as of right, there being a substantial constitutional issue. R. 2:2-1 (a). After hearing oral argument we entered an order affirming the judgment below and indicating that an .opinion would be filed in due course. 76 N. J. 103 (1978). See Dolan v. Tenafly, 75 N. J. 163 (1977). We followed this procedure in the interest of informing all parties of our decision as soon as possible, since this ease involves the sensitive matter of children’s custody. In light of the importance of the question presented and the lack of authoritative precedent, we now set forth at some length our reasons for affirming the Appellate Division’s decision.

II

The full faith and credit clause states:

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof. [17. 8. Const. Art. XY § 1]

Congress has directed that judicial proceedings

* * * shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken. [28 ¡7. S. C. A. § 1738]

In interpreting the full faith and 'credit clause, courts must reconcile the apparent simplicity of this statutory and constitutional language with the complexity of interstate relations in a federal system. This reconciliation has been especially difficult in domestic relations cases in general and in custody litigation in particular. See Williams v. North Carolina, 317 U. S. 287, 63 S. Ct. 207, 87 L. Ed. 279 (1942) (divorce); Williams v. North Carolina, 325 65 S. Ct. 1029, 89 L. Ed. 1577 (1945) (divorce); Yarborough v. Yarborough, 290 U. S. 202, 54 S. Ct. 181, 78 L. Ed. 269 (1933) (child support); Jackson, “Pull Paith and Credit — The Lawyer’s Clause of the Constitution,” 45 Colum. L. Rev. 1, 14 (1945).

The full faith and credit clause, which was derived from a similar provision in the Articles of Confederation, received little attention during the constitutional convention and the ratification debates. The scanty history does suggest, however, that the framers were concerned primarily with enforcement of money judgments.¹ It is not surprising that the clause has been applied rigorously to such judgments, regardless of the underlying cause of action. See Milwaukee County v. M. E. White Co., 296 U. S. 268, 56 S. Ct. 229, 80 L. Ed. 220 (1935) (tax deficiency judgment); Fauntleroy v. Lum, 210 U. S. 230, 28 S. Ct. 641, 52 L. Ed. 1039 (1908) (gambling debt). As the United States Supreme Court explained,

[t]hese consequences flow from the clear purpose of the full faith and credit clause to establish throughout the federal system the salutary principle of the common law that a litigation once pursued to judgment shall be as conclusive of the rights of the parties in every other court as in that where the judgment was rendered, so that a cause of action merged in a judgment in one state is likewise merged in every other. The full faith and credit clause like the commerce clause thus became a nationally unifying force. It altered the status of the several states as independent foreign sovereignties, each free to ignore rights and obligations created under the laws or established by the judicial proceedings of the others, by making each an integral part of a single nation, in which rights judicially established in any part are given nation-wide application. [Magnolia Petroleum Co. v. Hunt, 320 U. S. 430, 439, 64 S. Ct. 208, 214, 88 L. Ed. 149 (1943)]

Finality has little meaning, however, in the context of child custody adjudication. A custody decree is purely prospective, intended to secure the future welfare of the child. Fantony v. Fantony, 21 N. J. 525, 536 (1956). Further, the decree may have serious consequences for some who are not parties to the litigation, namely, the child and its state of residence. Since the conditions which would satisfy the best interests of the child during all of its minority could not be conclusively determined in one decree, custody orders are uniformly held to be modifiable. See Restatement (Second), Conflict of Laws, § 79, comment b.

The power of a forum state to modify a foreign custody decree -consistently with the full faith and credit clause was recognized by the United States Supreme Court in New York ex rel. Halvey v. Halvey, 330 U. S. 610, 67 S. Ct. 903, 91 L. Ed. 1133 (1947). Mrs. Halvey left her husband in New York and took their child to Florida, where she ultimately obtained an ex parte divorce. On the day before the Florida court awarded permanent custody of the child to Mrs. Halvey, Mr. Halvey clandestinely returned to New York with the child. When Mrs. Halvey initiated a habeas corpus proceeding in New York to recover the child, the New York court modified the Florida order to grant Mr. Halvey visitation rights. The Supreme Court affirmed:

So far as the Full Faith and Credit Clause is concerned, what Florida could do in modifying the decree, New York may do. * * * * The general rule is that this command requires the judgment of a sister State, to be given full, not partial, credit in the State of the forum.. *' * * * But a judgment has no constitutional claim to a more conclusive or final effect in the State of the forum than it has in the State where rendered. * * * *' Whatever may be the authority of a State to undermine a judgment of a sister State on grounds not cognizable in the State where the judgment was rendered (Cf. Williams v. State of North Carolina, 325 U. S. 226, 230, 65 S. Ct. 1092, 1095, 89 L. Ed. 1577, 157 A. L. R. 1366), it is clear that the State of the forum has at least as 'much leeway to disregard the judgment, to qualify it, or to depart from it as dods the State where it was rendered.

The narrow ground on which we rest the decision makes it unnecessary for us to consider several other questions argued, e. g., whether Florida at the time of the original decree had jurisdiction over the child, the father having removed him from the State after the proceedings started but before the decree was entered; whether in absence of personal service the Florida decree of custody had any binding effect on the husband; whether the power of New York to modify the custody decree was greater than Florida’s power; whether the State which has jurisdiction over the child may, regardless of a custody decree rendered by another State, make such orders' concerning custody as the welfare of the child from time to time requires. On all these problems we reserve decision. [330 U. S. at 614-16, 67 S. Ct. at 906, 91 L. Ed. at 1136-37 (footnote omitted; emphasis added)]

Three justices concurred in the result.

In May v. Anderson, 345 U. S. 528, 73 S. Ct. 840, 97 L. Ed. 1221 (1953), the Supreme Court held that the forum was. not required in a habeas corpus proceeding to give full faith’ and credit to a custody decree embodied in a foreign ex parte divorce judgment. The divorce was granted by Wisconsin, which had been the marital domicile. Before the petition for divorce was filed, however, the wife had taken the- children to Ohio, where she was served with process under a Wisconsin matrimonial long-arm provision. The Wisconsin divorce granted custody to the father, who sought to enforce the decree in an Ohio habeas corpus proceeding. The Ohio courts ruled that they were obligated by the full faith and credit clause to honor the Wisconsin order. Justice Burton wrote for a bare majority that Wisconsin never obtained personal jurisdiction over the .mother and therefore the Wisconsin custody decree was- not entitled to full faith and credit. Justice Frankfurter joined in the Burton opinion, but filed a concurrence which presented a markedly .different interpretation of the majority rationale.- According to -him, the Court’s decision was based on the inappositeness of the full faith and credit clause to custody determinations. Justice Frankfurter advanced a thesis he would develop more fully in subsequent decisions: “Children have a very special place in life which law should reflect. * * * [T]he child’s welfare in a'custody case has such a claim upon the State that its responsibility is obviously not to be foreclosed by a prior adjudication reflecting another State’s discharge of its responsibility at another time.” 345 U. S. at 536, 73 S. Ct. at 844, 97 L. Ed. at 1228. Although they dissented, Justices Jackson and Reed observed:

And; of course, no judgment settling custody rights as between^ .the parents would itself prevent any state which may find itself responsible for the welfare of the children from taking action adverse to either parent. [345 U. S. at 542, 73 S. Ct. at 847, 97 L. Ed. at 1231]

Footnotes

1

Prior to the Articles of Confederation, the colonial legislatures had grappled with the problem of the effect to be given to foreign judgments. As early as 1650, Connecticut enacted a law granting recognition to judgments from colonies with reciprocal provisions. Sumner, “The Pull-Paith-and-Credit Clause ■ — ■ Its History and Purpose,” 34 Ore. L. Rev. 224, 227 (1955). Several other colonies addressed the problem, most notably Massachusetts in 1774. The preamble to the Massachusetts statute clearly stated that it was intended to prevent the development of the colony as a debtor’s haven. Nadelmann, “Pull Paith and Credit to Judgments and Public Acts,” 56 Mich. L. Rev. 33, 40 (1957). The sole comment in The Federalist on the constitutional clause echoed this concern:

The power here established may be * * * particularly beneficial on the- borders of contiguous States, where the effects liable to justice may be suddenly and secretly translated, in any stage of the process, within a foreign jurisdiction. [The Federalist, No. 42]

It is also noteworthy that. the constitutional convention debate on full faith and credit was closely linked to discussion of the- bankruptcy power. 2 Farrand, Records of the Federal Convention of 1787, 448 (1911); Nadelmann, supra, at 56-57.