Cornwell v. Cornwell

• Decision Date: 13 December 1966
• Docket Number: No. 205,205
• Parties: Seldon A. CORNWELL v. Anna May Gordon CORNWELL.
• Court: Maryland Court of Appeals

Page 674

244 Md. 674

224 A.2d 870

Seldon A. CORNWELL v. Anna May Gordon CORNWELL.

No. 205.

Court of Appeals of Maryland.

Dec. 13, 1966.

Howard Shecter and Franklin Somes Tyng, Bel Air, for appellant.

Nelson R. Kerr, Towson (Nelson R. Kerr, Jr., Towson, and Edward D. Higinbothom, Bel Air, on the brief), for appellee.

Before HAMMOND, C. J., and HORNEY, MARBURY, BARNES and McWILLIAMS, JJ.

MARBURY, Judge.

This is an appeal from a decree of the Circuit Court for Harford County (Stewart Day, C. J.), dated February 25, 1966, which ordered a change in custody of the two daughters of the parties from one of the divorced parents, the father, to the other, the mother. From this decree the father has appealed.

The marriage, which produced the two daughters, had an unsettled history. The appellee, Anna May Gordon Cornwell, who was sixteen or seventeen years old at the time, married Seldon A. Cornwell, appellant, on April 25, 1952, in Maryland. Following the marriage, the parties moved to Florida where the husband was stationed in the Marine Corps. On December 8, 1953, the first of the two children was born in Florida. After the husband was discharged from the Marines in February 1954, the family returned to Maryland, where appellant had a succession of jobs and where they lived in a number of different places from that time until they purchased a house in Street, Maryland, in December 1958. In June 1955, because of continuous domestic strife, the wife left her husband and went to Florida, allegedly with another man, leaving her infant daughter with an acquaintance while appellant was at work. She failed to notify him of where she had left the child and, as a consequence, he did not learn of the location of his daughter until two weeks later. There was a reconciliation six months subsequently, and the parties lived together for nearly seven years. On September 1, 1956, the second daughter was born.

There was testimony by an acquaintance of the wife, that she and the wife on two occasions met men in various bars in the winter of 1961 or 1962. In early 1962 the parties again separated, the wife leaving the husband and the two children. The cause of this separation is not clear. Appellant claimed it was because of a letter which spoke of a date which another man had with the appellee. Later, in June of 1962, appellee obtained a court order awarding her custody of the children. After three or four months, appellee lost her job, and the parties attempted to effect a reconciliation which lasted only a couple of weeks. They separated again, and the children remained with the appellant, because appellee was unemployed and had no sufficient accommodations in which to keep her children.

On November 5, 1962 or 1963, appellee was seen leaving a motel room with another man early that morning by appellant's sister who had been called to the scene by appellant. Appellant had noticed his wife's car parked in front of the motel. Again, a friend and fellow employee of appellant and appellant saw his wife nude in a motel room with another man with whom she had allegedly been living for some time prior to this incident. Apparently, this was the final straw, as the parties were divorced on September 8, 1964, the divorce being based on the ground of the wife's abandonment. The decree awarded custody of the children to the father subject to further order of the court. At that time the wife lived in a boarding house and worked as a waitress, which job did not pay her enough to maintain herself and the two children. The history of the relationship between the parties after the divorce shows a continuous conflict over visitation rights and privileges.

On April 17, 1965, appellee married a man whom she had met in August 1964, and with whom she had been seen spending the night of March 25, 1965, in his trailer. On August 24, 1965, appellee filed a petition for the custody of the two daughters on the basis that she now had a new, three bedroom house, had settled down, and could provide a wholesome environment for her children.

The hearing on the petition lasted three days, November 19, 22-23, 1965, and the chancellor heard numerous witnesses; with the consent of counsel for both parties, spoke in private with the two daughters who stated that they loved both parents equally; and later received an oral report from the probation department. The chancellor found that appellant, who worked during the day and was off only on Mondays and Tuesdays, left his children to be cared for by his elderly parents with whom he and the children were living in a farm house. The appellant's mother was sixty-eight years old and had a chronic back condition. His father was sixty-seven years old and was hard of hearing. Appellant's divorced sister, who had children of her own and who sometimes cared for appellant's daughters while she lived at the farm house, had moved out of the house and was living nearby. Appellant told the chancellor that he intended to marry again and move into a trailer. The children told the chancellor that they disliked the prospective stepmother, and the father informed the court that he would not marry her if the children did not really like her. At the oral argument on appeal it was admitted that subsequent to the hearing he had married her. The chancellor was unable to determine if the farm house in which the appellant and the children were living was adequate for the needs of the number of people living within it. He found the sleeping arrangements makeshift at best.

Appellee showed that she and her second husband had recently purchased a new, nicely furnished house with three bedrooms, that she was not employed in a job outside of the home, and that she would have time to give sufficient attention to her children. The chancellor found that appellee's new husband was steadily employed and had a good income, and that his attitude toward the girls was excellent. The two daughters liked him. The chancellor also found that the mother greatly desired to have her daughters with her, and that she had mended her former ways and was fit to bring up her daughters properly. Chief Judge Day, on the strength of the probation officer's oral report, which recommended that the mother have custody, and by his own determination, concluded that since the two daughters were approaching adolescence, the mother's understanding and maturity were greatly needed.

The record before this Court does not contain the probation department's report received by the chancellor. The report, or at least a sufficient summary of it, should have been in writing and have been available to counsel for both parties prior to the chancellor's decision. However, neither counsel insisted upon its being reduced to writing in order to test its accuracy in the court below. As a consequence there is nothing before us for review in that regard. Maryland Rule 885. There is a partial summary of the findings of the probation department in the opinion of the court below, and a review of the record before us indicates that the chancellor was not clearly erroneous in awarding custody of the children to the mother. Rule 886 a.

It is universally recognized that the mother is the natural custodian of her young. Accordingly, the mother is ordinarily awarded the custody of children of tender age, especially girls unless it is clearly shown that she is not a fit and proper person. Sellman v. Sellman, 236 Md. 1, 202 A.2d 372; Oliver v. Oliver, 217 Md. 222, 140 A.2d 908; Porter v. Porter, 168 Md. 296, 177 A. 464. We are not unmindful of the great number of cases which have laid down the general rule that where a separation and a subsequent divorce is the result of adultery on the part of one spouse, the custody of the children, born during the marriage, is awarded to the innocent party, not as a matter of punishment, but because it is assumed that the child will be reared in a cleaner, more wholesome, moral atmosphere. Palmer v. Palmer, 238 Md. 327, 207 A.2d 481; Ferster v. Ferster, 237 Md. 548, 207 A.2d 96; Hild v. Hild, 221 Md. 349, 157 A.2d 442, and cases cited therein. These cases also require a strong showing to be made to overcome the usual rule against awarding custody to an adulterous mother. The mere fact that the adulterous spouse has married the paramour or that she now has the ability to provide greater comforts for the children is not sufficient to overcome this rule. Bray v. Bray, 225 Md. 476, 171 A.2d 500.

However, the fact that the mother may have committed adultery is not an absolute and inflexible bar to her being awarded custody, for when the adulterous relationship has ceased for a reasonable period of time so as to render it unlikely that it will be revived, and the mother has changed her way of living and has demonstrated that she is a fit and proper person to raise her children in a clean and moral atmosphere, then her past indiscretion may be overlooked in considering the award of custody. Palmer v. Palmer, supra; Wood v. Wood, 227 Md. 112, 175 A.2d 573; Oliver v. Oliver, supra.

The primary consideration in cases of this nature is the best interest and welfare of the children. The cases denying an adulterous mother the custody of her children are numerous, but the facts and circumstances in eath case are unique. As stated by Judge Hammond (now Chief Judge) in Trudeau v. Trudeau, 204 Md. 214, 218, 103 A.2d 563, 564:

'Thus, whatever paths of the maze are followed, the destination is always the child's welfare and prospects. Even as no will had a twin, no custody matter is the image of another and in none can the proper paths be plotted automatically on a map of the principles laid down by the cases. This is why the opinions of this Court reiterate, as particularly applicable, the rule that the opportunity of the Chancellor to see and hear the witnesses must be accorded the greatest respect. It was set forth in Cullotta v. Cullotta, supra, 193 Md. 374, 384, ...