Gibbons & Kinney, of Phoenix, for petitioner.
Shimmel, Hill & Hill and Harry Cavanagh, of Phoenix, for respondent.
Stanford, Justice. Udall, C. J., and Phelps, De Concini and La Prade, JJ., concur.
[73 Ariz. 98] The subject of this action, Barbara Lynn Hughes, is the child of Samuel B. Hughes and Ruby A. Hughes, formerly residents of San Diego, California. She is now about eight years of age.
On August 11, 1949, the father, Samuel B. Hughes, obtained a divorce from Ruby in San Diego county, California, and the care and custody of the child was awarded him, with the court retaining jurisdiction to review the matter and make such further orders as the welfare of the child might require.
In January of 1950 the father obtained a modification of the divorce decree, whereby the California court permitted him to remove Barbara Lynn to Arizona, and thereafter he and the girl came to Phoenix to make their home.
Ruby, the mother, who had become a resident of Texas, returned to San Diego and on August 17, 1950 appeared before the California court and asked for a further modification of the decree, giving custody of the child to her. Neither the father nor Bargara Lynn were personally before the California court at the time of the hearing; they remained in Arizona. Following the hearing, on August 17th, the California court made its "Order Modifying the Interlocutory Judgment of Divorce and Final Judgment of Divorce", purportedly granting the petition of Ruby Hughes for the custody of the child, and on the 19th day [73 Ariz. 99] of that month, she instituted habeas corpus proceedings in the superior court of Maricopa county, Arizona, based on the California decree as modified, to gain the care and custody of the child. After the hearing on September 13, 1950, the father and Barbara Lynn both appearing, the superior court made the following disposition of the case: "The prayer of the petitioner asking the Court to dispose of the custody of the minor child and directing that the child be awarded to the petitioner is denied.
Now, I trust that the parties will arrange some way that this lady be given some means of showing her affection and attention on the child in some fashion. There will be an order releasing the child to the father." From the order of the lower court, awarding the custody of Barbara Lynn to the father, the mother has brought this appeal.
Petitioner Ruby Hughes bases her argument on three assignments of error: (1) That the lower court erred in denying the prayer in the petition for custody of the child in light of the California decree as modified granting such custody, and in light of the full faith and credit clause of the United States constitution, art. 4, § 1; (2) that the court erred in admitting evidence of petitioner's mental illness prior to the date of the California order; and (3) that the court erred in admitting evidence concerning the father's lack of representation at the hearing before the California court.
In bringing this appeal, petitioner relies solely on the last modification of the decree made by the California court and maintains that it should be given full faith and credit. In order that such a decree be entitled to full faith and credit, it is a prime requisite that the court making the decree have ...