Butler v. Perry, 204

• Decision Date: 15 June 1956
• Docket Number: No. 204,204
• Citation: 210 Md. 332,123 A.2d 453
• Parties: Ruth BUTLER v. Harry PERRY and Ruth Perry, his wife.
• Court: Maryland Court of Appeals

Page 332

210 Md. 332

123 A.2d 453

Ruth BUTLER v. Harry PERRY and Ruth Perry, his wife.

No. 204.

Court of Appeals of Maryland.

June 15, 1956.

Michael F. Freedman and John B. Fox, Baltimore, for appellant.

Walter V. Harrison, Baltimore (Morgan L. Amaimo, Baltimore, on the brief), for appellees.

Before BRUNE, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

HAMMOND, Judge.

Almost always there is some doubt in a custody case as to what is best for the child; in many cases it is difficult in the extreme to come to a conclusion that seems satisfyingly wise and sound. The case before us is in the latter category.

Warren Scott, III, the boy over whom paternal grandparents, who live in Pittsburgh, and the maternal grandmother who lives in Baltimore, are contesting, was born in Baltimore in 1950. His mother was Marjorie Butler, daughter of Ruth Butler, the appellant. His father was Warren Scott, Jr., son of Ruth Perry by a former marriage. Ruth Perry and her present husband are the appellees, the chancellor having awarded custody of the boy to them. Marjorie Butler and Warren Scott, Jr. lived together as man and wife for several years, although they were never married, perhaps because he had a wife from whom he had not been divorced. Warren Scott, III, lived with his parents in Baltimore until 1951 when the family went to Pittsburgh to stay with Mr. and Mrs. Perry. Later they had their own apartment in Pittsburgh and three months before her death, Marjorie Butler left Warren Scott, Jr. and went to live in her own apartment. The Perrys say that they supported the child to a large extent all the time he was in Pittsburgh, although the record shows that the child did not live with them continuously, having lived with his parents and then with his mother much of the time. In 1953, Warren Scott, Jr. murdered Marjorie Butler with a knife in an atrociously brutal and horrible killing, while his son was sleeping nearby. He is serving a sentence in the Penitentiary. Ruth Butler, the grandmother, went to Pittsburgh at that time and brought little Warren back to Baltimore with her. The Perrys say that she abducted him. She says that she acted under the advice of the Legal Aid Bureau of Pittsburgh. Warren has been with his grandmother in Baltimore since September 29, 1953. Ruth Butler has been unable to work since 1945 because of high blood pressure and lives on public assistance, receiving $70 a month at the present time. Warren receives survivor's benefits from his mother's Social Security protection of $30 a month. Ruth Butler and Warren live in a third floor apartment at 1707 W. Lexington Street with her sister and her sister's husband, Mr. and Mrs. Hart. The apartment consists of two bedrooms, a combination living room and dining room, kitchenette and bath. The child is clean, well kept, happy and well loved by his grandmother and his great-aunt, and shows great affection for both of them. The Perrys live in Pittsburgh in their own home and have an income of $300 a month from other properties which are rented. Mrs. Perry had been employed as a typist by the Federal government and had the equivalent of three years of college. Mr. Perry, now retired, had been in the hauling business.

In April of 1954 the Perrys filed a petition in the Circuit Court of Baltimore City seeking custody of little Warren. Judge Mason referred the petition to the Juvenile Division of the Circuit Court for an investigation and report. The Director of Probation recommended in June, 1954, that the custody of Warren be awarded to Ruth Butler. The balance of his recommendation is as follows: 'In making this recommendation, we are aware that we are asking the Court to place this child in a home in which the income and the physical surroundings are greatly inferior to those offered by the petitioners. The petitioners, however, are parents of the putative father of this child. The putative father is currently confined in prison for having killed the natural mother. It does not seem to us that this child ought to be reared in an environment in which he will inevitably be required to express an affection for and an interest in the person who caused his mother's death. In the Butler home, the child appears to be secure, loved and wanted. He will be permitted to grow up without constantly being reminded of the very unpleasant circumstances of his mother's death.' The detailed investigation which was attached to the letter describes Warren as 'an attractive, friendly and well-mannered little boy who seems happy with his grandmother.' It notes that although Ruth Butler has high blood pressure, the doctor at the University Hospital reported that there is nothing in her condition 'to interfere with her properly caring for a child.' The apartment in which the grandmother and the boy live is described as 'moderately furnished, clean, neat and apparently well kept. * * * Warren sleeps in his own bed which is comfortable and clean. Mr. and Mrs. Hart are seemingly kind people who assist financially and physically with the care of Warren. Mrs. Hart seems to love Warren very much and he likewise loves her.' Mrs. Butler is described as a woman of good character and highest morals, who does not smoke or drink. Included is a quotation from the report of the Department of Public Welfare which noted that it felt that 'there seemed to be a genuine interest on Mrs. Butler's part to look after him well.' The summary and recommendation advises the court that the case is under the supervision of the Department of Public Welfare as Mrs. Butler is the recipient of public assistance and the Department will give close supervision in the matter of the care of Warren Scott, III, should the court award the custody to Mrs. Butler.

We are informed that Judge Mason was about to sign an order dismissing the petition when the appellees requested a hearing in open court. The matter then went off until October of 1955. Judge Oppenheimer, who then heard the case, held it sub curia, pending receipt of a report from a child psychologist, Dr. Carola B. Guttmacher. Her report shows that she found Warren to be a bright child. She concluded: 'It would seem advisable to let this child remain in Baltimore. He seems to have made a very good adjustment both at home and at school. It will be asking too much of a five year old child to reorient himself once more to a totally strange situation. The marked difference in the economic status of the grandmothers is a factor that undoubtedly should not be disregarded. However, if the paternal grandmother is so eager to help raise this child, perhaps she would be willing to contribute to his support financially, even if Warren does not live with her. There is so little known about what kind of people the Perrys are and what their real motivations are for requesting the custody of this child, that it would seem inadvisable to send Warren to Pittsburgh at present.' Thereafter, as disclosed by a memorandum he caused to be made a part of the record, Judge Oppenheimer called Dr. Guttmacher and emphasized to her that he was not trying to influence her report in any way, as he wanted her recommendation to reflect her independent judgment, but that he did suggest that she talk to Mr. and Mrs. Perry before reaching a final conclusion. Dr. Guttmacher did this and noted in her second report that she was well impressed by them and that they seem like warm, loving, intelligent people who would like to see Warren in a better environment than the one in which he is living at present. She added: 'That of course is the only conscious motivation. They feel that they can provide a better home for him at present as well as improve his possibility for a better education in the future. We suspect that besides the previous reason there are other ones. For example, competitive feelings with the maternal grandmother, guilt feelings about failing to raise a successful son, etc.' She concludes: 'We would think it worthwhile taking chances on transplanting Warren once more from this home in Baltimore where he feels happy and secure to the home in Pittsburgh, because there we think he may have a brighter future. * * * Warren's father most likely will be paroled while Warren will still be young. He will most likely regain custody of his child and in that case Warren's adjustment will be easier if he had been in Pittsburgh with the paternal grandparents. We see some drawbacks in this plan. First of all Mr. Perry seems quite weak and looks much older than his stated age. We wonder whether he will withstand the effort of raising an active six year old boy. Secondly, Mrs. Perry may feel rejected when Warren will show any signs of preferring to stay with his grandmother in Baltimore. It may require more than her love for this child to handle this transfer successfully.'

At the hearing, Donald McNeil, who has been a probation officer for twelve years, testified that he had made the investigation that led to the report of the probation department and reiterated that he felt custody should remain with Ruth Butler, whom he found to be 'a mild mannered, responsible person, a poor woman, but a woman of good habit and character. She was not known to drink and she lived a good, proper life.' On cross-examination he was asked whether the fact that the Perrys were shown to be good, kind people who had a genuine affection for the child and could give him far better material care than Ruth Butler, would affect his recommendation, and he said that it would not. He added that in his opinion it would probably be better if the father...