Daubert v. Daubert, 339

• Decision Date: 25 June 1965
• Docket Number: No. 339,339
• Citation: 239 Md. 303,211 A.2d 323
• Parties: Patricia Gay DAUBERT v. John M. DAUBERT.
• Court: Maryland Court of Appeals

Page 303

239 Md. 303

211 A.2d 323

Patricia Gay DAUBERT v. John M. DAUBERT.

No. 339.

Court of Appeals of Maryland.

June 25, 1965.

W. Walter Farnandis, Baltimore, for appellant.

Edward S. Vidali, Baltimore (Fair, Vidali, Wagner & Evering, Baltimore, on the brief), for appellee.

Before PRESCOTT, C. J., and HAMMOND, MARBURY, SYBERT, and OPPENHEIMER, JJ.

OPPENHEIMER, Judge.

This case involves the custody of a six year old boy whose parents have been divorced. The parents, John M. Daubert and Patricia G. Williams, were married on December 14, 1952. They have three children, two daughters, Debra and Darlene, now eleven and four years old respectively, and a son, Michael. The Dauberts separated in 1961. On April 2, 1963, the father, John Daubert, obtained a decree of absolute divorce on the ground of constructive desertion. The wife did not oppose the bill. The custody of all three children was awarded to the mother and the father was directed to pay twenty-five dollars a week for their support, which he has done. At the time of the divorce, Daubert testified that his wife was a fit and proper person to have the custody of the children. He now states that he so testified because at that time he was unable to provide a proper home for the children.

About one year prior to the separation of the Dauberts, they voluntarily agreed to send Michael to the home of his mother's parents, James and Elsie Williams; at that time both of the Dauberts were working. Michael needed special medical care, which the grandparents could afford to give. Michael has lived with his grandparents ever since, for a period of four years. Mr. and Mrs. Williams, who are respectively fifty-six and fifty years of age, live in a one-bedroom house in the Brooklyn area of Baltimore City; both of them work fulltime. It has been necessary for Mrs. Williams to take Michael to the Brooklyn Community Nursery School each morning on her way to work; Mr. Williams calls for him each afternoon on his way home from work. It is undisputed that the grandparents have provided excellent care for Michael, at their own expense. There is general agreement that Mr. and Mrs. Williams are understanding, Kindly people and have provided as good a home for the boy as their means permitted.

John Daubert, the father, remarried on May 18, 1963. His present wife is the former Charlotte Lotz, who was a widow with four children of her own, two of whom are approximately of the age of Michael. Daubert and his present wife live in a large nine-room cottage, with facilities for the erection of additional bedrooms. Three of the present Mrs. Daubert's children by her former marriage live in the house. She is not employed.

Michael's mother, the former Mrs. Daubert, remarried on December 31, 1963. Her present husband is Donald W. Gill who had recently divorced his second wife. He and Patricia, Michael's mother, live in a small rented home with three bedrooms, in the Pilmlico area of Baltimore. Mr. Gill is employed as a truck driver and Patricia works full-time at the Social Security Administration. The girls, Debra and Darlene, live in this house and evidently have made a good adjustment and are happy.

On November 12, 1963, John Daubert filed a petition in the Circuit Court Part II o Baltimore City asking for the custody of all three children. Patricia Gill, the mother, filed an answer asserting that it would be in the best interest of the children if custody remained with her and also filed a petition asking for an increase in the amount of support to be paid by her former husband.

Testimony was taken before Judge Prendergast which developed the marital histories and present circumstances of the parties. Mrs. Ellis, a Director of the Brooklyn Community Nursery School in which Michael is enrolled, testified that Michael 'is an unusual child many times' although at other times he acts normally. There are times, in Mrs. Ellis' opinion, when he is really hard to cope with. She feels that Michael needs to be corrected and 'a firmness.' In a previous letter, Mrs. Ellis had stated that Michael has always needed special care. She testified that, in her opinion, '[t]he only reason that I would feel that Michael should be removed from the home--and maybe not that now--if anything should happen to Mrs. Williams, then I think that Michael should be with his father.' She was of the opinion there is no present reason why Michael should be removed from the home but also stated: 'Well, I think it would be a wonderful thing for the child to be with his own father and his new mother if they would provide the proper home for him.'

Mr. Karlin, Probation Officer of the Circuit Court of Baltimore City, who had made an investigation for the court in this matter, was of the opinion, as a result of his investigation, that the present arrangements with respect to the three children should not be changed. He had interviewed the present Mrs. Daubert and thought she was a very capable woman and that there would be no question as to her ability to provide a good home for Michael. Patricia, the present Mrs. Gill, in his opinion, was not able physically, because of her home conditions, to take care of Michael, but Mr. Karlin felt that, if the care of Michael were taken away from Mr. and Mrs. Williams by the court, Mrs. Gill should be given his custody.

Mr. and Mrs. Williams both testified. Michael sleeps in the only bedroom in their house; the Williams sleep on the sofa-bed in the living room. Mrs. Williams testified that Michael has constantly been under the doctor's care ever since he has been with them. '[H]e never did seem to grow up well * * * He needs a lot of special care that just an ordinary child doesn't require.' He has asthma trouble and has had an operation on his ears. Mr. and Mrs. Williams enjoy Michael and feel they can give him more personal care, which he needs, than either his mother or his father.

Michael's mother, the present Mrs. Gill, when asked by the court what she proposed to do when Michael could no longer stay in the nursery school, said that she hoped to get him in McDonogh and believes that her parents would pay the necessary expense. She also said that at the nursery school older children are sometimes permitted to stay on to help with the younger ones.

The present Mrs. Daubert testified that, from her observation, all three of the Daubert children feel insecure because of the breakup of their home. She has found her present husband to be a good influence on her own children and believes that she could grow to love his children as much as her own.

Daubert and his present wife are Catholics. Patricia is a Protestant, although her present husband is what he describes as a 'non-practicing Catholic'; the two Daubert girls attend the Catholic church. Michael, who is described as being a Catholic, which Judge Prendergast interpreted to mean, perhaps, that he had been baptized, is taken by his grandparents to a Protestant church each Sunday.

Several days after the conclusion of the testimony, Judge Prendergast filed a memorandum in which he recited the facts, gave his impression of the witnesses and analyzed and weighed the circumstances which he deemed controlling. In his analysis of the facts, Judge Prendergast referred to the general agreement as to the fine character of Mr. and Mrs. Williams. As to the present Mrs. Daubert, Judge Prendergast said: 'Mr. Charlotte Daubert made an excellent impression on the court and seems to be a dedicated mother to all the children for whom she is caring at present. She alone, of all the potential custodians of the children in dispute, is not employed and is available at all times to care for them.'

In his discussion, the judge referred to the recommendation of the Probation Department that the present custodial situation remain unchanged. The judge agreed that the two daughters are receiving proper and adequate care at present and that no change should be made as to them. He...