Barnard v. Barnard

• Decision Date: 17 April 1929
• Docket Number: No. 70.,70.
• Citation: 145 A. 614
• Parties: BARNARD v. BARNARD.
• Court: Maryland Court of Appeals

145 A. 614

BARNARD

v. BARNARD.

No. 70.

Court of Appeals of Maryland.

April 17, 1929.

Appeal from Circuit Court, Anne Arundel County; Robert Moss, Judge.

Suit by J. Chandler Barnard against Emilie Eleanor Barnard with reference to the custody and guardianship of the minor children of the parties. From the decree, plaintiff appeals. Affirmed.

Argued before BOND, C. J., and URNER, ADKINS, OFFUTT, DIGGES, PARKE, and SLOAN, JJ.

Allan H. Fisher, of Baltimore, and Eugene P. Childs, of Annapolis, for appellant.

Nicholas H. Green, of Annapolis, for appellee.

DIGGES, J. By decree dated September 13, 1928, the circuit court for Anne Arundel county, in equity, awarded to Emilie Eleanor Godfrey the custody, control, and guardianship of Barbara Alice Barnard and J. Chandler Barnard, Jr., minor children of Emilie Eleanor Godfrey and J. Chandler Barnard, subject to the right of the father, J. Chandler Barnard, to visit them, to advise as to their care and education, and, as they advanced in years, to be consulted by the court as to his wishes in their education and the schools they should attend, provided he be able to aid financially in their education; that the said children should not be removed from the state of Maryland for a longer continuous period than three months without the consent of the court; that their father, J. Chandler Barnard, pay the sum of $200 monthly to the mother for the support of the minor children until they arrive at the age of 21 years, said payments to cease as to one-half thereof upon the death of either child before reaching the age of 21 years, and to cease as to one-half thereof upon the elder of the said children becoming 21 years of age; and that the court would fix the time when the father could visit the children, upon application by petition. It is from this decree that the appeal here is prosecuted; and the sole question presented for our review is whether or not such disposition of the children as to their guardianship, custody, and control, and the amount decreed to be paid for their support, is just and reasonable and most beneficial to the minor children.

The bill in this case was filed by the father under section 80 of article 16 of the Code, which provides: "The several equity courts of this State shall have original jurisdiction in all cases relating to the custody or guardianship of children and may on bill or petition filed by father or mother or relative or next of kin or next friend of any child or children to direct who shall have the custody or guardianship of such child or children, and who shall be charged with his, her or their support and maintenance, and may from time to time thereafter annul, vary or modify its decree or order in relating to such child or children." From this language it will be seen that courts of equity in this state have full power, and it is their duty, to determine who shall have the custody, control, and guardianship of minor children, and who shall be charged with their maintenance and support, when applied to by any of the persons mentioned in the statute; and this without regard to the question of whether or not the parents of said child or children have been divorced or are living apart. This section is declaratory of the inherent power of courts of equity over minors, and in the exercise thereof it should be exercised with the paramount purpose in view of securing the welfare and promoting the best interest of the children. In so doing it is proper to take into consideration the natural rights incident to the status of parent and child, regard being had for the character habits and condition in life of the respective parents; but such consideration for the parents should not influence the court in the final disposition, if it would clearly not be for the best interests of the child; because, even though, due to the parental status and the fact that the law imposes upon them the obligation to maintain and support their children, they have a natural right to the custody, control, and companionship of the children, they nevertheless may forfeit this right by reason of their improper conduct, manner or habit of living, or by failure to provide surroundings conducive to the proper rearing and well-being of children of their station in life. There can be no binding, and very little helpful, precedent found in the decisions of the courts on this subject, because essentially each case must depend upon its peculiar circumstances. Not only this, but circumstances which would require the custody and control in one person at the time the chancellor acts may, and frequently do, so change as to necessitate a modification of the original decree; and such contingency the Legislature had in view when the statute provided that the court "may from time to time thereafter annul, vary or modify its decree or order in relating to such child or children."

The prayer of the plaintiff (appellant here), contained in the original bill, is that the court assume jurisdiction of the children and determine who should be charged with their support and maintenance and who should have their custody and care; and in the supplemental bill the relief asked for was that J. Chandler Barnard, Jr., the son, be awarded to him, but be permitted to visit his mother six months without interruption in each and every calendar year, while the custody of the daughter, Barbara Alice Barnard, be awarded to the defendant, the mother, with the right of the father to have her visit him for a period of two months without interruption in each year; and...