Boothe v. Boothe
| Decision Date | 11 October 1983 |
| Docket Number | No. 1821,1821 |
| Citation | 466 A.2d 58,56 Md.App. 1 |
| Parties | Bernadette Grace BOOTHE v. Henry F. BOOTHE et ux. |
| Court | Court of Special Appeals of Maryland |
Willard L. Broms, Leonardtown, for appellant.
David F. Jenny, Leonardtown, for appellees.
Argued before LOWE, GARRITY and GETTY, JJ.
When Bernadette Grace Boothe (appellant) was divorced from Thomas Joseph Boothe, Sr. on November 21, 1980, the custody of their four children ranging from 4 to 13 years-of-age was granted to their father, with the reluctant acquiescence of appellant. With the help of his parents who lived nearby on the farm upon which his own home was built, Mr. Boothe, Sr. raised his children in the rural atmosphere of their home. Despite appellant's admitted meretricious personal life which appears to have succeeded the divorce, she was permitted liberal visitation privileges. There was no evidence that she was required to contribute to her children's support yet she gave gifts to them and voluntarily continued to be responsible for their dental care and some social activities. She availed herself of every opportunity for visitation.
Their paternal grandmother, however, did some of the chores of child raising for these children such as mending their clothes, walking them to the school bus, taking them to the doctor if needed, providing meals on weekends and other tasks customarily done by a mother. The children also spent a great deal of time at their paternal grandparents' farmhouse, near the children's home which had been built on part of the grandparents' farm.
On June 13, 1982, Thomas Joseph Boothe, Sr. was killed in an automobile accident. Despite the mother's express desire to assume custody of the children (she propitiously used more discretion in her living arrangements by obtaining a trailer to house the children out of her paramour's presence), the grandparents obtained and retained physical custody of the children. The grandparents filed a petition for custody on June 14, 1982, and the appellant counterfiled for custody of her children on June 25, 1982. A hearing on the issue of temporary custody was held on August 5, 1982. On September 3, 1982, there was a custody hearing in open court to determine who would have custody of the children. This concluded in judgment by the Circuit Court for St. Mary's County in favor of the grandparents, from which appellant mother has appealed.
The record reflects a deeply loving and caring young mother who maintained close contact with her children. Although concerned over the children's need for discipline, she is averse to severe physical punishment which she fears may be the custom of the paternal grandparents. The mother's living facilities consist of a trailer and yard in a trailer park, neatly kept and clean, but somewhat confining for a family of five.
The sexagenarian grandparents have a farmhouse with more interior space than the trailer and with 76 acres surrounding it. Their conceded love and concern for the children was exhibited by their care for them even while they were in the custody of their son. The grandparents are, to phrase it kindly, philosophically more stoic, perhaps, than the mother; certainly less averse than the mother to corporal punishment. 1 But the geographic "environment" which always included the grandparents in some degree of an in loco parentis relationship is that to which the children have become accustomed, having been in varying degrees exposed to both throughout their lives.
In determining the best interest of these children, the chancellor balanced the environmental stability concept described in Sartoph v. Sartoph, 31 Md.App. 58, 354 A.2d 467 (1976), against the natural parent presumption explicated in Kartman v. Kartman, 163 Md. 19, 161 A. 269 (1932), and decided that under the circumstances of this case, the children's best interest lay in their remaining in the rural environment maintained by the paternal grandparents.
The appellant complains to us that the legal presumption of the children's welfare being best served with their natural parent was not overcome in this case. She points out that in Ross v. Hoffman, 280 Md. 172, 372 A.2d 582 (1977), the Court of Appeals through Judge Digges noted that:
"Therefore, in parent-third party disputes over custody, it is only upon a determination by the equity court that the parent is unfit or that there are exceptional circumstances which make custody in the parent detrimental to the best interest of the child, that the court need inquire into the best interest of the child in order to make a proper custodial disposition." Id. at 179, 372 A.2d 582 (emphasis added).
Appellant points out that the judge expressly found that she was not unfit. After analyzing many of the cases addressing the natural parent presumption, she contended that the circumstances here are not so "exceptional" as to "make custody in the parent detrimental to the best interest of the child". Only such circumstances, she contends, would have permitted a custodial disposition predicated upon a "best interest of the children" determination.
Her argument is persuasive, especially upon review of the record of her maternal virtues and ties, which continued during and after her marital estrangement. Clearly she has surpassed exception No. 1 (parental unfitness), as decided by the court. Just as clearly she has neither abandoned her children nor neglected to see them during any period of permitted visitation as has so often been persuasively "exceptional" in the older cases. E.g., Trenton v. Christ, 216 Md. 418, 140 A.2d 660 (1958); Ross v. Pick, 199 Md. 341, 86 A.2d 463 (1952); Dietrich v. Anderson, 185 Md. 103, 43 A.2d 186 (1945); Piotrowski v. State, 179 Md. 377, 18 A.2d 199 (1941); and Ross v. Hoffman, supra. Even her consensual acquiescence to paternal custody was a difficult acknowledgment of the children's best interest at the time, in permitting them to stay in the marital home with their father after the divorce.
It is ironically unfair, perhaps, that that difficult decision made then to benefit the children is part of the "exceptional" circumstance that haunts her still nearly three years later. The fact remains, however, that whether the custody during the past two or three years had derived from her well-purposed acquiescence or judicial determination, the raising of these children by their father with the help of the paternal grandparents, without the day-to-day guidance and help of their natural mother, is an exceptional circumstance. When viewed in light of uprooting...
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