Carter v. Carter

• Decision Date: 31 January 1929
• Docket Number: 94,95.
• Citation: 144 A. 490,156 Md. 500
• Parties: CARTER v. CARTER.
• Court: Maryland Court of Appeals

144 A. 490

156 Md. 500

CARTER v. CARTER.

Nos. 94, 95.

Court of Appeals of Maryland

January 31, 1929

Appeal from Circuit Court of Baltimore City; Eugene O'Dunne Judge.

Suit by Paul O. Carter against Marie S. Carter. From decrees awarding guardianship and custody of child of parties to plaintiff and making allowance to defendant of counsel fees, plaintiff appeals. Decree respecting custody of child reversed and remanded. Decree as to counsel fees reversed.

Adkins J., dissenting in part.

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

Edward L. Ward and Ward B. Coe, both of Baltimore, for appellant.

John Philip Hill, of Baltimore, for appellee.

PARKE J.

There are two appeals on this record. The first involves the custody of a minor child of the parties; and the second appeal presents the propriety of allowing to a former wife a counsel fee for legal services rendered in connection with the determination of the future custody of a minor child after a decree of divorce a vinculo matrimonii had ended the marital relation between the parents of the infant and had awarded the custody of their child.

The original bill of complaint was filed on February 1, 1926, in the circuit court of Baltimore City, by Paul O. Carter against Marie S. Carter, and sought an absolute divorce and the guardianship and custody of John Paul Carter, their infant son, who was then in his fifth year. The ground alleged was an abandonment for the statutory period. The master reported that the testimony established the facts entitling the plaintiff to a decree; and the parties filed an agreement relative to alimony and the custody and support of the child. The chancellor then passed a decree which absolutely divorced the plaintiff and defendant; which awarded the agreed specific sum in lieu of all temporary or permanent alimony; which, conformably to their agreement gave the guardianship of the child to the plaintiff; and awarded his custody so that it be equally divided in time between the parents; and imposed upon the father the obligation of paying the mother the sum of $40 a week for the maintenance and education of the child while in the custody of the mother.

On October 5, 1926, the defendant filed a petition praying that the decree be revoked and annulled on the ground that it was collusively and fraudulently obtained; that the defendant be given an opportunity to appear and answer and to submit her defense to the allegations of the bill of complaint; and that the defendant be awarded alimony and the guardianship and custody of the infant. The plaintiff answered denying the material charges of the petition; and later the parties again agreed, subject to the approval of the chancellor, that the matter be submitted on the petition and answer; and that the decree be modified so as to allow the defendant a further sum of $1,500 and to make a different provision with respect to the rights of the parents in reference to the custody of the child. By its decree of April 26, 1927, the court dismissed defendant's petition, awarded her $1,500 as agreed, and gave the guardianship and custody of the child to the father, with the right of the mother to see the child at his father's residence and to have the child in her custody from the 1st of June in each year, or from the close of the child's school term, if it should extend beyond the first day of June, until the 1st day of September; and, also, for one week during the Christmas holidays and for another week during the Easter holidays of each year, with the right of the father to see the child at the mother's residence. The father was to pay the expenses of transportation from his home to the mother's home in New York or elsewhere, provided they be not in excess of the cost of transportation between Washington and New York, and the sum of $10 a week to the mother while the child was with her under the provisions of the decree. The chancellor made all the provisions with respect to the custody and support of the child effective until the further order of the court, and expressly retained jurisdiction for that purpose. McSherry v. McSherry, 113 Md. 395, 400-403, 77 A. 635, 140 Am. St. Rep. 428.

The question of the custody of the child was again presented to the chancellor by the petition of the plaintiff filed on December 6, 1927. In this petition the father recited his compliance with the modified decree, and the mother's refusal rendering it necessary for the father to institute habeas corpus proceedings in New York. While these proceedings were pending, the petition alleged that the mother had secretly removed the child from New York for the purpose of taking him to Canada, but that, discovering her plan, the father had employed a detective who had found the child on September 20, 1927, at Bridgeport, Conn., and who had there secured possession of the child and returned him to the father, who had him in his custody at the time of the filing of his petition.

The object of the father's action was to obtain the exclusive guardianship and custody of the child. In addition to the defendant's noncompliance with the decree, the plaintiff averred that his wife's conduct since the decree of April 26, 1927, made her unfit to have the minor, and that the plaintiff should have the sole custody of the child. The answer of the mother was a denial of all the accusations brought against her, an assertion of her rights under the decree, and a denial that it ought to be modified.

Voluminous testimony was taken by the parties, and the chancellor passed a decree on June 25, 1928, in which he modified the decree of April 26, 1927, so (a) that the custody and guardianship of the child be awarded to Marie S. Carter from June 26, 1928, to October 1, 1928, and also, one week during Christmas holidays of 1928, and one week during Easter holidays of 1929, with the right of the father to visit the child while in the custody of the mother; (b) that the father pay the mother the sum of $25 for the week of June 26, 1928, and thereafter at the rate of $100 a month from July 1, 1928, for the support, education, and maintenance of the minor during the period or periods that the child is in the custody of the mother; (c) that the custody and guardianship of the infant shall be committed to the father from October 1, 1928, to June 25, 1929, with the exceptions of the periods of the Christmas and Easter holidays, allowing the mother the right to see the infant while in the custody of the father; (d) that the father should pay the cost of transportation between Washington and New York for the first two periods of the mother's custody, and that the mother pay for the third trip; and (e) that the court retain jurisdiction of the infant "and that the provisions hereinafter (hereinbefore) shall remain in force until the further order of this court."

It will be observed that a part of the decree applies to a period which has passed, and, at the present time, the decree is effective to the extent that it gives the guardianship and custody of the infant to the father, subject to an interval of one week during the Easter holidays in 1929, until June 25, 1929; but the general declaration at the end of the decree that the specific provisions are to remain in force until the further order of the court would continue them indefinitely, and thus would give the "guardianship and custody" of the minor to his mother for slightly more than three months in the summer, a week at Christmas, and a week at Easter, with the father paying the mother at the rate of $100 a month during those periods, and having the "guardianship and custody" during the remainder of the year.

It is the rule of the common law that parents have the natural right to the custody of their children, and that, as between the mother and father, the primary right to the custody of the children is in the father, since it is his duty to provide for his children's protection, maintenance, and education. So, if the parents separate or are divorced, and a dispute arises as to the custody, the right of the father ordinarily is superior to that of the mother; but this rule must yield to the paramount consideration of what will be the best interest of the children and most conducive to their welfare; and the court will accordingly exercise its sound discretion and award the custody of the children according to the exigencies of the particular case, notwithstanding any agreement between the parents. Boggs v. Boggs, 138 Md. 422, 438, 439, 114 A. 474.

The child is now in its eighth year, and is not of such a tender age as to require a mother's ministration nor to make his separation from her prejudicial to his health. Moreover, the father has married again, and has a comfortable home, where the child is now receiving suitable care, nourishment maintenance, attention, and education in favorable surroundings, with every indication of their continuance and of his being reared in a...