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330 U.S.

FRANKFURTER, J., dissenting.

documents. He may have been wrong in that belief. At all events it was the view of a judge who had presided for six weeks over a trial in which these matters were canvassed. The Circuit Court of Appeals did not have before it, nor have we, the knowledge or the basis for knowledge that Judge Hall had, and so neither court can say with any confidence that he did not have ground for thinking that the change in circumstances revealed in the course of the trial obviated the need for the demand that was made upon Young. We surely ought not to reverse the action of the district judge on the abstract assumption that papers ordered to be produced as relevant to an inquiry at the time the subpoena issued continued relevant several months later. We ought not to assume that a subpoena was proper months later when a proceeding lasting more than six weeks before the judge who had approved the subpoena in the first instance persuaded him that the circumstances no longer called for carrying out the terms of the subpoena. When the trial judge stated his understanding that the intervening circumstances had rendered inappropriate the use of his coercive powers, counsel for the Government did not gainsay the judge's view. The failure of Government counsel to contradict the interpretation of facts by the Court does not present any technical ground of not allowing a point to be raised on appeal to which no exception was taken. The significance of counsel's silence is its confirmation of the judge's interpretation of the circumstances. At least in the absence of contradiction the interpretation of the facts by the trial judge was a proper basis for the exercise of his judicial discretion.

On the record before us, Judge Hall exercised allowable discretion in finding that the subpoena had spent its force, and in concluding not to compel obedience to it. At the same time, he was justified in finding that because Young had disobeyed the subpoena while it was still alive, he

585

FRANKFURTER, J., dissenting.

should be fined and made to feel that one cannot flout a court's authority with impunity.

The question, then, is whether the Court could impose what constituted a fine for criminal contempt, that is, to vindicate the law as such, without a formal pleading charging Young with such disobedience. We do not think Judge Hall had to direct the clerk to issue an attachment against Young to inform him of that which he obviously knew and which the proceedings had made abundantly clear to him. The true significance of our opinion in United States v. United Mine Workers, 330 U. S. 258, as we understand it, is that contempt proceedings are sui generis and should be treated as such in their practical incidence. They are not to be circumscribed by procedural formalities, or by traditional limitations of what are ordinarily called crimes, except insofar as due process of law and the other standards of decency and fairness in the administration of federal justice may require. On this record we find not the faintest denial of any safeguard or of appropriate procedural protection.

We think the judgment of the Circuit Court of Appeals should be reversed and that of the District Court reinstated.

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NEW YORK EX REL. HALVEY v. HALVEY.

CERTIORARI TO THE COURT OF APPEALS OF NEW YORK.

No. 384. Argued February 5, 1947.-Decided March 31, 1947.

After a man and wife had been married in New York, had a child born there, and had lived there seven years, the wife took the child to Florida without the husband's consent and established a residence there. The next year, she instituted suit for divorce in Florida. Service of process on the husband was had by publication and he made no appearance. The Florida court granted the wife a divorce and awarded her permanent care, custody, and control of the child; but, the day before the decree was granted, the husband took the child to New York without the knowledge or approval of the wife. The wife instituted habeas corpus proceedings in New York, challenging the legality of the detention of the child. The New York court ordered (1) that the custody of the child remain with the mother, (2) that the father have rights of visitation including the right to keep the child with him during stated vacation periods each year, and (3) that the mother give a surety bond conditioned on the delivery of the child in Florida for removal by the father to New York for the period when he was entitled to keep it with him. Held: The order of the New York court did not fail to give the Florida decree the full faith and credit required by Article IV, § 1 of the Constitution. Pp. 612-616.

(a) Under Florida law, custody decrees of Florida courts ordinarily are not res judicata in Florida or elsewhere, except as to facts before the court at the time of judgment. Pp. 612-613.

(b) The Florida court would have been empowered to modify the decree in the interests of the child and to grant the father the right of visitation, had he applied to it rather than the New York court and presented his version of the controversy for the first time in his application for modification of the Florida decree. Pp. 613-614.

(c) So far as the Full Faith and Credit Clause of the Constitution is concerned, what Florida can do in modifying the decree, New York also may do. Pp. 614-615.

295 N. Y. 836, 66 N. E. 2d 851, affirmed.

610

Opinion of the Court.

A Florida court having granted a divorce and awarded custody of a child to a mother and the child having been removed to New York by the father without the mother's consent, the mother instituted habeas corpus proceedings in New York. The New York court ordered (1) that the custody of the child remain with the mother, (2) that the father have rights of visitation including the right to keep the child with him during stated vacation periods each year, and (3) that the mother give a surety bond conditioned on delivery of the child in Florida for removal by the father to New York for the periods when he was entitled to keep it with him. 185 Misc. 52, 55 N. Y. S. 2d 761. Both the Appellate Division, 269 App. Div. 1019, 59 N. Y. S. 2d 396, and the Court of Appeals affirmed, 295 N. Y. 836, 66 N. E. 2d 851. This Court granted certiorari. 329 U. S. 697. Affirmed, p. 616.

B. E. Hendricks argued the cause, and Robert S. Florence filed a brief, for petitioner.

Samuel Shapiro argued the cause and filed a brief for respondent.

MR. JUSTICE DOUGLAS delivered the opinion of the Court.

The Halveys were married in 1937 and lived together in New York until 1944. In 1938 a son was born. Marital troubles developed. In 1944 Mrs. Halvey, without her husband's consent, left home with the child, went to Florida, and established her residence there. In 1945 she instituted a suit for divorce in Florida. Service of process on Mr. Harvey was had by publication, he making no appearance in the action. The day before the Florida decree was granted, Mr. Halvey, without the knowledge or approval of his wife, took the child back to New York. The

Opinion of the Court.

330 U.S.

next day the decree was entered by the Florida court, granting Mrs. Halvey a divorce and awarding her the permanent care, custody, and control of the child.

Thereupon she brought this habeas corpus proceeding in the New York Supreme Court, challenging the legality of Mr. Halvey's detention of the child. After hearing, the New York court ordered (1) that the custody of the child remain with the mother; (2) that the father have rights of visitation including the right to keep the child with him during stated vacation periods in each year, and (3) that the mother file with the court a surety bond in the sum of $5,000, conditioned on the delivery of the child in Florida for removal by the father to New York for the periods when he had the right to keep the child with him. 185 Misc. 52, 55 N. Y. S. 761. Both the Appellate Division, 269 App. Div. 1019, 59 N. Y. S. 2d 396, and the Court of Appeals, 295 N. Y. 836, 66 N. E. 2d 851, affirmed without opinion. The case is here on a petition for a writ of certiorari which we granted because it presented an important problem under the Full Faith and Credit Clause of the Constitution. Article IV, § 1.

The custody decree was not irrevocable and unchangeable; the Florida court had the power to modify it at all times.1 Under Florida law the "welfare of the child" is the "chief consideration" in shaping the custody decree or in subsequently modifying or changing it. Frazier v. Frazier, 109 Fla. 164, 169, 147 So. 464, 466; See Phillips v. Phillips, 153 Fla. 133, 134-135, 13 So. 2d 922, 923.

1 "In any suit for divorce or alimony, the court shall have power at any stage of the cause to make such orders touching the care, custody and maintenance of the children of the marriage, and what, if any, security to be given for the same, as from the circumstances of the parties and the nature of the case may be fit, equitable and just, and such order touching their custody as their best spiritual as well as other interests may require." Fla. Stats. (1941) § 65.14.

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