61 So.2d 478 (1952)


Supreme Court of Florida, Special Division A.

November 21, 1952.

Attorney(s) appearing for the Case

Goldstein, Klein, Burris & Lehrman, Miami Beach, for appellants.

Robert O. Ghiotto, Boca Raton, for appellee.

WHITE, Associate Justice.

This appeal brings to this Court a contest between the maternal grandparents of a six year old boy, on the one side, and the child's mother, on the other, regarding the child's custody. Upon petition for writ of habeas corpus brought by the grandparents against their daughter, the lower court entered judgment for the latter and the grandparents have appealed.

The parents of the child were divorced by decree of the Superior Court of the State of New Jersey. Custody of the child in question, as well as his sixteen year old sister, was awarded to the mother. Subsequently, the mother married her present husband and came to Florida with the boy, leaving his sister with the mother's parents in New Jersey. After a while, the grandparents petitioned the Superior Court of New Jersey for a modification of the original decree. The mother and boy were then in Florida. The mother was notified of the New Jersey proceedings. She engaged counsel there, who, on her behalf, appeared at, and took part in, a hearing upon the grandparents' petition held February 11, 1952. Thereupon, the New Jersey Court awarded custody of both children to the grandparents.

Armed with the decree of the New Jersey Court, the grandparents, on March 3, 1952, presented their petition for writ of habeas corpus in Florida. A hearing followed on March 19, 1952. Upon authority of "Dorman v. Friendly, 146 Fla. 732, 1 So.2d 734, and supporting authorities", the Circuit Court ruled that the decree of the New Jersey Court was not binding upon Florida; that the Florida Court should act solely and entirely upon considerations touching the best interest of the child as shown at the hearing on the writ of habeas corpus. Pursuant to that ruling, the Chancellor proceeded to take testimony relating almost entirely to circumstances and conditions existing prior to the date of the New Jersey decree.

In addition to Dorman v. Friendly, 1941, 146 Fla. 732, 1 So.2d 734, other cases upon the subject are State ex rel. Clark v. Clark, 1941, 148 Fla. 452, 4 So.2d 517; Digirogio, v. Digirogio, 1943, 153 Fla. 24, 13 So.2d 596; Gilman v. Morgan, 1947, 158 Fla. 605, 29 So.2d 372; Eddy v. Stauffer, 1948, 160 Fla. 944, 37 So.2d 417; Little v. Franklin, Fla., 1949, 40 So.2d 768; People of State of New York ex rel. Halvey v. Halvey, 1947, 330 U.S. 610, 67 S.Ct. 903, 91 L.Ed. 1133.

Those cases demonstrate that the position of the Chancellor would have been sound except for the fact that the child's mother engaged counsel in New Jersey and, through them, took part in the New Jersey proceedings. Cf. Gilman v. Morgan, supra.

The decree of modification entered by the New Jersey Court recites:

"Whereas, proofs were taken in open Court on the 11th day of February, 1951, (sic) in the presence of Harry Wolf, Esquire, Attorney for Roy Lambertson and edna (sic) M. Lambertson, his wife; and Ezra Karkus and Edward Farry, Jr., Esquires, Attorneys for Leonore Ada Bell Bruguier Williams, * * *".

The following appears in the transcript of the Florida proceedings:

"Q. Mrs. Williams, you knew about this proceeding in New Jersey, didn't you? A. Yes, I did. "Q. You retained a lawyer didn't you? A. Yes, I did."

At this point appellee's counsel objected and the court interrupted the examination, ruling that "all we are interested in here is the welfare of this child, at this time."

When the proceedings were brought in New Jersey to modify the original decree of divorce, the appellee had a choice of forums. Having elected to take part in the New Jersey proceedings, she consented to being bound by that Court's decision. Becoming dissatisfied with the result there, she may not later re-litigate the same issue in another forum as was done here.

Had there been a showing to the Florida court that new conditions had arisen since the entry of the New Jersey decree awarding custody to the grandparents, which would make it to the best welfare of the child to depart from that decree, then the Florida court might well have acted accordingly. See People ex rel. Halvey v. Halvey, supra. But no such showing appears in the record brought to this Court.

Under the facts of the case the lower court should have recognized the rights of the petitioners flowing from the New Jersey decree and awarded the child to the appellants.


SEBRING, C.J., and TERRELL and MATHEWS, JJ., concur.


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