Burns v. Bines

• Decision Date: 03 November 1947
• Docket Number: 5.
• Parties: BURNS et ux. v. BINES et al.
• Court: Maryland Court of Appeals

55 A.2d 487

189 Md. 157

BURNS et ux. v. BINES et al.

No. 5.

Court of Appeals of Maryland

November 3, 1947

Appeal from Circuit Court, Harford County; Frederick Lee Cobourn Judge.

Habeas corpus by William Thomas Bines and Ethel B. Bines against Benjamin Burns and Matilda Burns, his wife for custody of three grandchildren of the parties, wherein Edward Roland Bines intervened as a party plaintiff. From an order giving custody of Edward Roland Bines, Jr., to plaintiffs defendants appeal.

Order reversed.

Robinson & Fahey, and Edward D. Higinbothom, all of Bel Air, for appellants.

Robert H. Archer, Jr., of Baltimore (Robert H. Archer and Tydings, Sauerwein, Archer, Benson & Boyd, all of Baltimore, and T. Leo Sullivan, of Bel Air, on the brief), for appellees.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, HENDERSON, and MARKELL, JJ.

MARKELL Judge.

This is an appeal by the maternal grandparents of a child, Edward Roland Bines, Jr., from an order in a habeas corpus proceeding giving custody of the child to his paternal grandparents. The paternal grandparents filed the petition for the writ against the maternal grandparents, alleging that the child and his two sisters were 'unlawfully detained in the custody of the defendants.' After the testimony had been taken and the case argued and submitted the father of the children, who is imprisoned under sentence for life for the murder of the mother, his wife, was on his petition made a 'party plaintiff.' He prayed that the custody of the children be given to his parents 'during the time he is confined to the Maryland Penitentiary.' The court, by order dated January 29, 1947, gave custody of the daughters to the maternal grandparents and of the son to the paternal grandparents.

The father killed the mother on November 8, 1945. They had three children, Genevieve, born September 18, 1942, Judith (who has died pending this appeal), born November 24, 1943, and Edward, born March 24, 1945. At the time of the murder the husband, wife and children were at their own house. The children were then brought to the paternal grandparents' house. The lower court says: 'Soon thereafter the maternal grandparents appeared at the home of the paternal grandparents, and over their objections and against their wishes removed all the children therefrom, and continuously thereafter to the day of this hearing have denied [them] any and all access to or communication with said children. * * * The testimony in this case proves rather conclusively that both the paternal and maternal grandparents are solid and respectable citizens and that, in the home of either, the children will be well cared for and receive all reasonable moral training and education.'

Appellants contend (1) that the court was without jurisdiction because (a) sections 20 and 21 of Article 42 of the Code were specifically repealed by section 5 of Chapter 797 of the Acts of 1945 and (b) the court has no such jurisdiction under sections 1, 2 and 3 of Article 42 or under the common law. Motion to dismiss the proceedings on these grounds was overruled. The court held, and appellees contend, that the court had jurisdiction under the common law and sections 1, 2 and 3. Sections 20 and 21 were indeed specifically repealed. Cockerham v. Children's Aid Society, 185 Md. 97, 102, 103, 43 A.2d 197.

The common law writ of habeas corpus was 'a writ in behalf of liberty,' to deliver a prisoner from unjust imprisonment and illegal and improper restraint. It was not 'calculated to try the rights of parents and guardians to the custody of infant children,' but was frequently used when children were detained from their parents or guardians on the ground that such detention from legal custody was equivalent to illegal restraint and imprisonment. People ex rel. Pruyne v. Walts, 122 N.Y. 238, 241, 25 N.E. 266. A child cruelly treated by its father could, on habeas corpus against the father, be released from such illegal restraint. Archer's Case, Fortescue 196, 1 Ld.Raymond 673. Ordinarily the person illegally restrained, including a child old enough to choose, could only be set free from illegal restraint, and not delivered over to the custody of any particular person. Rex v. Smith, 2 Strange 982, habeas corpus by the father against an aunt; a boy of thirteen was given liberty to go where he pleased and chose to stay with the aunt. Matter of Waldron, 1816, 13 Johns. 418, habeas corpus by the father against the maternal grandparents; it was said that the children 'cannot be considered under any improper restraint.' However, in Blisset's Case, Lofft. 748, on habeas corpus by the father against the mother for custody of a six months old child, Lord Mansfield said the natural right was with the father, but he being unfit, the court would take jurisdiction to determine what was best for the child. Much later it was said that before the Judicature Act, in matters of custody of young children, the common law jurisdiction, by habeas corpus, was exercised to determine 'as between two or more persons their rights'; that this jurisdiction to determine the rights between the parties might be exercised as between parents and other persons or in cases not involving the relation of parent and child; that 'at common law the parent had, as against other persons generally an absolute right to the custody of the child, unless he or she had forfeited it by certain sorts of misconduct'; that proceedings might be stayed to give time for application to the Court of Chancery; but that under the Judicature Act proceedings by habeas corpus are governed by the same principles, based not on the right of the parent but on the welfare of the child, which had governed the 'parental' jurisdiction 'exercised by the Court of Chancery from time immemorial.' The Queen v. Gyngall, [1893] 2 Q.B. 232, 238-240. At common law the father's right to custody, even as against the mother, was so nearly absolute that it was not forfeited by living in adultery, provided he maintained separate establishments for his mistress and his children. King v. Greenhill, 4 Ad. & El. 624, 640, 643. Lord Eldon said that the Court of Chancery had jurisdiction over the custody and maintenance of children but lacked means of exercising it (e. g., by compelling payments by the father) if the child had no property under the jurisdiction of the court. Wellesley v. Duke of Beaufort, 2 Russ. 1, 19-21, 22, 23.

Section 85 of Article 16 of the Code (Acts of 1920, ch. 573, relating to custody and maintenance of children) '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.' Barnard v. Godfrey, 157 Md. 264, 267, 145 A. 614, 615. Perhaps this declaratory statute was passed to remove any doubt as to the power of equity courts to give custody to one person and compel maintenance by another. In Maryland, if it was ever doubted that, at law as well as in equity, the welfare of the child was paramount over the rights of the parents, any doubt was removed in 1888, Acts of 1888, ch. 79, Code of 1939, Art. 42, sec. 21, by providing that in habeas corpus proceedings the court should be 'guided by what appears to be for the best interests of such minor.'

Until the repeal of section 21 of Article 42 in 1945, 'the principles to be applied, the status of the parties, and the thing to be done [were] the same' in equity...