(dissenting).
The writ was sought by the mother on the ground that the June 27, 1956, order of the Ohio court is entitled to full faith and credit in the courts of this state. An examination of that document indicates that it was entered to give effect to an agreement of the parties concerning the custody of this child which they .made on October 14, 1954. It seems to me that under these circumstances the 1956 order, if it adjudicated the best interest and welfare of the child, did so as of the date of the divorce which was February 4, 1955.
The majority opinion refers to the “opinion and decision” portion of Exhibit A as containing the findings on which the 1956 order was entered. I do not share this view. As I see it the factual basis for the 1956 order was the prior agreement of the parties. In fact, I seriously doubt that such opinion and decision is properly before us. When Exhibit A was offered in evidence there was. objection to the “opinion and decision” portion of it. In admitting the Exhibit the trial court said: “I don’t think there is anything before me, except the Judge’s Order, and I will admit it on that basis.”
Under the general rule custody decrees of a sister state are given full faith and credit only as to the circumstances existing at the time such decree was entered. As to those circumstances it is final. This is the rule announced in Application of Habeck, 75 S.D. 535, 69 N.W.2d 353. It seems to me that the trial Court in hearing this .matter on April *19410, 1958, was faced with circumstances substantially different from those that the Ohio court passed on.
At the time these parties stipulated as to the custody of this little girl she was about three years of age. When the hearing was held she was about seven years old. In the meantime both her mother and father had remarried and established new homes. Also her father suffered a serious coronary thrombosis just prior to the hearing of this matter. In fact, the trial was delayed a month because of it. In view of these changes in circumstances I feel that the Ohio order was not entitled to full faith and credit in this proceeding.
At the trial the father requested permission to submit testimony “in reference to the merits of the custody of the child”. The mother made no objection and stated that she too was prepared to submit testimony on this issue. The father’s request was denied because his affidavit contained no allegation of substantial change in circumstances and he -made no oral request to show such changed circumstances. For this same reason the court refused to hear the testimony which the mother was prepared to submit. It is true that the father’s return did not contain such allegations in so many words, yet the changes which I have enumerated were all before the trial court. In addition the return filed by the father urged that the writ should not issue because “the best interest and welfare of said child requires that her care and control be continued in” him.
Obviously it would have been better pleading to have set out these changed circumstances in the return. Nevertheless it seams to me that an inquiry into the best interest and welfare of this little girl, regardless of which parent prevailed, is too important a concern to be denied because of inartistic pleading. By SDC 33.0915 our courts, when attempting to determine the effect of a pleading, are admonished to construe it liberally with a view of substantial justice between the parties. I think this liberality should be indulged to its greatest length in a proceeding of this kind.
As I see it the order being reviewed is, under our rule. *195res judicata as to the present welfare of this child because that is a matter which could have been presented on this hearing. Ex parte Watt, 73 S.D. 436, 44 N.W.2d 119; see also Wellnitz v. Wellnitz, 71 S.D. 430, 25 N.W.2d 458 and Application of Habeck, supra. Even though the present arrangement should prove detrimental to the child, it cannot be altered unless and until there is a subsequent change in circumstances. The harshness of this rule is added reason why an inquiry into custody decrees should not be denied except in clear and compelling circumstances.
In many jurisdictions the courts have tempered such harshness by permitting the re-opening of custody decrees in the absense of a claim of subsequent changes for the consideration of matters in existence but not considered in the original proceeding. Annotation 9 A.L.R.2d 623; Casteel v. Casteel, 45 N.J.Super. 338, 132 A.2d 529. They seem to regard this salutary view especially applicable in those cases where the decree was entered on agreement of the parties. All too often in those situations the matter of the child’s welfare is of little importance when the agreement is being made.
I would reverse.