Marvel R. NEAL, also known as Marvel N. Hoffman, Appellant, v. STATE of Florida ex rel. J. A. NEAL and Zenia Neal, his wife, Appellees, 135 So. 2d 891

WIGGINTON, Judge. This appeal is from a final judgment entered in a habeas corpus proceeding instituted by appellee grandparents, by which custody of the minor child born of appellant mother was taken from her and awarded to the grandparents. Appellant, who was respondent in the habeas corpus proceedings, is the natural mother of the child in question. She and the child’s father were divorced by final decree entered in the Chancery Court of Mississippi on July 12, 1955. By such final decree the custody of the child was awarded to the mother.

She subsequently consented for the child to visit his grandparents in Mississippi who thereafter refused to return the child to the mother when demanded. The mother thereupon instituted a habeas-corpus proceeding in the State of Mississippi for the purpose of regaining possession of the child. Upon the first hearing in that cause a decree was entered finding in favor of the mother, and ordered that the person of the child be delivered to her. Upon the entry of this decree the mother and the child immediately departed from the State of Mississippi and ultimately established residence in Duval County, Flor-’ ida.

The habeas corpus decree originally entered in the Mississippi suit was appealed to the Supreme Court of that state. The decree was reversed and the cause remanded for further proceedings. The mother had apparently severed connections with her local counsel and for this reason was not informed that the decree in her favor had been reversed and further proceedings were required. The case subsequently proceeded to final decree on the merits resulting in a decree in favor of the grandparents, and awarding to them custody of the child.

Armed with this decree the grandparents proceeded to Duval County in this state where they instituted the habeas corpus proceedings now under consideration. In response to the petition for writ of habeas corpus brought by the grandparents, the mother filed her answer alleging in substance the foregoing facts. By her answer she put in issue the validity of the final decree in habeas corpus entered by the trial court in Mississippi, and contended that she was entitled to retain custody of her child under the previously rendered final decree of divorce which had not been modified or set aside.

Her attack upon the validity of the Mississippi habeas corpus decree is two-fold. She first alleges that it is void for the reason that the answer of the grandparents to her petition for habeas corpus contained no prayer for affirmative relief, and therefore the court was without jurisdiction to grant such relief by awarding custody of the child to the grandparents.

She further alleges that the judgment is void for the reason that she had no notice of reversal of the original decree by the Supreme Court of Mississippi, was not personally notified of any subsequent proceeding and therefore did not appear nor offer further evidence in support of her petition or in opposition to the grandparents’ claim of entitlement to custody of the child.

At final hearing the trial court of Duval County struck that paragraph of the mother’s answer in which she alleges a lack of knowledge that the original habeas corpus decree in her favor rendered by the trial court of Mississippi had been reversed and remanded for further proceedings, and that she had no personal knowledge of the further proceedings had in that cause which resulted in the decree awarding custody of her child to the grandparents.

Before proceeding with the taking of testimony the trial court ruled that evidence in the case would be limited to facts occurring since May 24, 1960, the date of the final decree rendered in the Mississippi habeas corpus proceedings, and that upon such evidence the court would base its decision on what would be for the best interest of the child. After the testimony was concluded the trial court announced that it considered itself bound by the final decree in habeas corpus rendered by the trial court of Mississippi after reversal of the cause by the Supreme Court.

Having found that it was so bound, the court held that its consideration would be confined to the question of whether the proof showed a sufficient change in circumstances of the child or the parties as would justify the court in taking custody from the grandparents and awarding it to the mother. The court ultimately concluded that the evidence before it failed to show such a change in circumstances as would warrant changing the custody provisions of the Mississippi habeas corpus decree, and therefore granted the writ as prayed and awarded custody of the child to the grandparents.

From a review of the record it is clearly apparent that the trial court considered itself unequivocally bound by the final decree rendered by the trial court of Mississippi in the habeas corpus proceeding by which custody of the child was awarded to the petitioner grandparents. In so doing he placed upon the respondent mother the burden of proving such a change in circumstances of either the child or the parties as would justify taking custody of the child from the grandparents and awarding it to the mother. In this respect the trial court committed error.

It could have been only upon the erroneous theory that the Mississippi decree awarding custody of the child to the grandparents was entitled to recognition and enforcement under the full faith and credit clause of the United States Constitution that the trial court ruled it was bound thereby. In Vermeulen this court held that judgments and decrees affecting the custody of minors, not being final, occupy a different status from those affecting divorces and property rights, and may be modified as circumstances warrant without doing violence to the full faith and credit clause of the Constitution.

In Rhoades it was recognized that orders, judgments or decrees affecting custody of minors are subject to modification at any time as the welfare of the child might require. We held that for this reason decrees affecting the custody of minors are not entitled to recognition under the full faith and credit clause of the United States Constitution. It was ultimately held that although such decrees were not entitled to enforcement under the full faith and credit clause, the trial courts of this state are authorized in their discretion to recognize such judgments or decrees under the rule of comity.

Our decision in Rhoades was affirmed in all respects by the Supreme Court in its denial of certiorari. The foregoing holdings by this court in both Vermeulen and Rhoades were in conformity with the prior decisions of the Florida Supreme Court on the same subj ect. In State v. Rasco the Supreme Court considered a petition for writ of habeas corpus to secure the custody of a minor child. The petitioner father sought custody of his child whose custody had been awarded to the mother u'nder a decree of the Circuit Court of Duval County.

The father, a resident of New Jersey, questioned the jurisdiction of the Circuit Court in Florida to award custody of his child to the mother. The Supreme Court denied the petition. After citing numerous cases involving proceedings seeking custody of minors which were in support of its ruling, the Supreme Court said: “These cases also establish the rule that the doctrine of comity plays no

part in the adjudication of such cases. Neither are decrees in such cases protected by the full faith and credit provision of the Federal Constitution, U.S.C.A., art. 4, § 1. This on the theory that the welfare of the child is the question of primary consideration, and this can best be determined by the Court who has jurisdiction of it, and in whose jurisdiction it resides.” And in Eddy v. Staufer the Supreme Court, speaking through Mr.

Justice Hob-son, said: “Counsel for petitioner cite respectable authority to sustain their contention that full faith and credit should be accorded the decrees of sister States in cases involving the question of custody of minors, not necessarily as an incident to the so-called full faith and credit clause of the Federal Constitution but certainly upon the basis of comity. The decided authorities are in conflict on this question. Some of this Court’s decisions appear, upon a cursory examination, to lack consistency but, upon detailed examination, do not appear to be subject to such criticism.

However, there is approximate unanimity of opinion to the effect that the Courts of a State where a child may be residing, even temporarily, have jurisdiction to make such orders concerning the child’s custody as his welfare may from time to time require. This is almost uniformly the rule if the court of original jurisdiction may modify its custody decree.” In Little v. Franklin the Supreme Court, speaking through Mr.

Justice Terrell, said: “We are not unmindful of the rule that judgments and decrees of the Courts of sister States be given full faith and credit in the State of the forum, but this rule like others may have its exceptions. We hold that judgments and decrees affecting the custody of children, not being final, occupy a different status from those affecting divorces and property rights and may be modified as circumstances warrant without doing violence to the full faith and credit requirement of the Federal Constitution. People of State of New York ex rel. Halvey v.

Halvey, 330 U.S. 610, 67 S.Ct. 903, 91 L.Ed. 1133; * * *.” In Dahlke v. Dahlke the mother of minor children filed a petition in an adjudicated divorce proceeding seeking custody of her minor children which had been awarded by the court to the paternal grandparents. The grandparents and the children resided in Ohio at the time the petition was filed and service of process attempted. The trial court dismissed the petition for the reason that service of process was insufficient and the court did not have jurisdiction over the grandparents who were named as parties to the cause.

In affirming the chancellor the Supreme Court, speaking through Mr. Justice Barns, said: ‘Furthermore, the Full Faith and Credit Clause of the Constitution of the United States, Art.

IV, § 1, would not make a decree favorable to the appellant-petitioner binding on the appellees or the courts of Ohio in event of proceedings brought to enforce it there.” Reverting to our opinion in Rhoades it was held that although decrees affecting the custody of minors were not entitled to enforcement under the full faith and credit clause, the trial courts of this state are authorized in their discretion to recognize such judgments or decrees under the rule of comity.

Judicial “comity” refers to principle under which courts of one jurisdiction give effect to law and judicial decisions of another out of deference and respect, not obligation. Judicial comity is not a rule of law, but one of practical convenience and expediency based on theory that a court that first asserts jurisdiction will not be interfered with in continuance of its assertion by a court of a foreign jurisdiction unless it is desirable that one give way to the other.

The public policy of this state, as reflected by the decisions of our Supreme Court, impels the view that in custody proceedings a decree of a foreign jurisdiction involving that issue shall give way to a decree based upon the best interest of the minors involved. Whether recognition of the Mississippi habeas corpus decree should be accorded under the doctrine of comity will depend at least in some measure upon the manner in which the case was litigated which resulted in the judgment or decree of custody.

If the chancellor finds that in the case out of which the questioned judgment or decree arose both parties were before the court and were accorded ample opportunity to fully develop and present their evidence on the custody issue, such factor is one which the court may well consider in determining whether recognition of the judgment or decree should be granted.

In the case we now review we are of the view that the mother, having initially instituted the habeas corpus proceeding in the State of Mississipi, was legally bound in that jurisdiction by the final judgment ultimately rendered therein after reversal and remand of the cause by the Supreme Court of that state. The evidence is equally clear, however, that because of her voluntary act in departing from the state, the mother received no actual notice that the initial judgment rendered in her favor had been reversed or that further proceedings in the cause would be had.

It is equally clear that the mother did not appear before the trial court upon the remand of the cause, nor was she represented by counsel or offered any additional evidence in support of the allegations of her petition. That case apparently proceeded in an ex parte fashion which resulted in the final judgment favoring the grandparents. These are factors which the trial court of Duval County was entitled to consider in reaching a conclusion as to whether the final decree rendered in Mississippi is entitled to recognition and enforcement under the doctrine of comity.

The order striking that portion of appellant’s answer alleging the foregoing facts was therefore erroneous. If, because of all the circumstances surrounding this case, the trial court should •conclude that the Mississippi decree is not entitled to recognition under the doctrine •of comity, we are faced with the situation wherein the respondent mother was originally awarded custody of her child under the final decree of divorce, which decree has not been modified or set aside.

Under these circumstances the burden in this habeas corpus proceeding would then .rest upon the petitioner grandparents to show by a preponderance of the evidence that the circumstances of the child or the moth•er have so materially changed since the entry of the custody provision contained in the divorce decree as to warrant withdrawing custody of the child from the mother and awarding it to the grandparents.

Stated differently, under the latter circumstances the burden would rest on the grandparents to show entitlement to the child’s custody, rather than this burden resting on the mother to show her entitlement to custody as held by the trial court. Appellant mother has also assigned as error failure of the trial court to dismiss the petition or quash the writ on the ground the habeas corpus decree rendered by the trial court of Mississippi is void for the reasons assigned.

We are unable to determine from the state of the record before us whether the grandparents’ answer filed in response to the mother’s petition for writ of habeas corpus in the Mississippi action contained a prayer for affirmative relief and custody of the child. Assuming it did not, we are of the view that such omission would not render the decree void. Habeas corpus has been traditionally employed in this state as a vehicle for the purpose of determining custody as between one parent and a third party, as well as by a third party against a natural parent.

In such proceedings the welfare of the child is one of the controlling considerations, and the court in the exercise of its discretion may award custody to such of the parties as the best interest of the child may require, taking into account at all times the right of the natural parent in the premises. We have carefully considered the remaining assignments of error, but find them to be without substantial merit. The judgment appealed is accordingly reversed and the cause remanded for further consideration and proceedings consistent with the views expressed herein. Reversed. CARROLL, DONALD K., C. J., concurs.

STURGIS, J., dissents. . In re Vermeulen’s Petition (Fla.App.1959), 114 So.2d 192. . Rhoades v. Bohn (Fla.App.1959), 114 So. 2d 493. . Bohn v. Rhoades (Fla.1960), 121 So.2d 777. . State ex rel. Rasco v. Rasco, 139 Fla. 349, 190 So. 510. . Eddy v. Staufer, (1948), 160 Fla. 944, 37 So.2d 417. . Little v. Franklin (Fla.1949), 40 So.2d 768. . Dahlke v. Dahlke (Fla.1957), 97 So.2d 10, 17. . Kellogg-Citizens Nat. Bank of Green Bay, Wis. v. Felton, 145 Fla. 68, 199 So. 50. . Moody v. Branson, 192 Old. 327, 136 P.2d 925. . 15 Fla.Jur., Habeas Corpus, § 61, pp. 445-146; Mattison et ux. v. State ex rel.

Lowe, Fla.App.1958, 107 So.2d 747; Witt v. Burford, 84 Fla. 201, 93 So. 186; Lee v. Lee, 67 Fla. 396, 65 So. 585.