Davis v. Davis

• Decision Date: 08 October 1976
• Docket Number: No. 110,110
• Citation: 364 A.2d 130,33 Md.App. 295
• Parties: John Franklin DAVIS, Jr. v. Mary Louise DAVIS.
• Court: Court of Special Appeals of Maryland

Page 295

33 Md.App. 295

364 A.2d 130

John Franklin DAVIS, Jr. v. Mary Louise DAVIS.

No. 110.

Court of Special Appeals of Maryland.

Oct. 8, 1976.

Certiorari Granted Dec. 30, 1976.

John R. Foley, Washington, D.C., for appellant.

A. J. D. Schmidt, Rockville, with whom was Judson R. Wood, Gaithersburg, on the brief, for appellee.

Argued before THOMPSON, POWERS and MELVIN, JJ.

THOMPSON, Judge.

This case involves the custody of Katherine Leigh Davis, (Leigh), born March 21, 1968, the youngest child of John Franklin Davis, Jr., the appellant, and Mary Louise Davis, the appellee. On September 25, 1974, Mr. Davis filed a suit in the Circuit Court for Montgomery County for a divorce a vinculo matrimonii on the grounds of adultery and asked for custody of the three minor children of the parties. In her answer and in a cross-bill the appellee sought custody of the three children. The chancellor awarded Mr. Davis a divorce as requested, gave him custody of the two older children of the parties and dismissed the appellee's cross-bill. Mrs. Davis was given custody of Leigh. Mr. Davis has appealed; Mrs. Davis did not; thus, the only question before the Court is the custody of Leigh. ¹

The parties were married on September 26, 1958, and lived in Montgomery County, Maryland, until the date of trial December 11, 1975. Three children were born to the parties: John Franklin Davis, III, now age 17, Mary Jane Davis, now age 15, and Leigh, now age 8. While their marriage appears to have been anything but harmonious, at least during the last year, the parties lived together until they separated on January 31, 1974. During this period Mr. Davis complained to his wife as to the amount of her drinking and her occasionally returning home in the early hours of the morning. On January 31, 1974, the appellee, Mary Louise Davis, left the family home and took an apartment. Her youngest daughter accompanied her but apparently the two older children declined to do so. There was evidence that after the separation and prior to the trial Mrs. Davis held a number of different jobs but always, was careful to arrange that her daughter was properly cared for by neighbors or other baby sitters, including in some instances her older children. The older children visited her with some frequency and the youngest daughter spent Friday nights and Saturdays with Mr. Davis. The relationship of each parent with all the children was described as good. The relationship between the children also appears to be good. Mr. Davis has made arrangements for a neighbor and his older children to take care of Leigh from the time she returns from school until he returns from work, in the event he should be awarded custody. Mr. Davis lives in a nice four-bedroom dwelling. Mrs. Davis lives in a nice two-bedroom apartment.

There was strong evidence that Mrs. Davis had committed adultery with three different men on many occasions from June of 1974 until November 30, 1974, more than two months after the bill of complaint had been filed in these proceedings. Specifically the following situations were observed:

1) Prior to June, 1974, Mrs. Davis was observed in the company of William Katzenberger numerous times including several at the New Yorker Restaurant in Laurel;

2) On June 26, 1974, Mrs. Davis was observed entering Katzenberger's apartment building at 4:45 p. m. from which they exited at 6:08 p. m 3) On June 27, 1974, Mrs. Davis was observed 'hugging and kissing' Ray Giovannoni in the latter's automobile parked outside of the Side Door Restaurant in Gaithersburg;

4) On July 2, 1974, at approximately 6:00 p. m. Mrs. Davis was observed kissing Katzenberger in a service station;

5) On July 3, 1974, Mrs. Davis was observed entering her apartment at approximately 12:46 p. m. from which she exited at 1:31 p. m. followed by Katzenberger at 1:36 p. m.;

6) On July 18, 1974, Mrs. Davis and Giovannoni were observed leaving the Side Door Restaurant shortly after midnight, entering the latter's automobile, driving to a dark area in the rear of the parking lot where they parked for 10 minutes before returning to the bar;

7) On July 24, 1974, Mrs. Davis and Giovannoni were observed entering Giovannoni's apartment building at 11:50 p. m., the lights went off at 1:05 a. m., and Mrs. Davis left the building at 6:45 a. m.;

8) On September 1, 1974, Mrs. Davis and Giovannoni were observed in the latter's apartment at midnight preparing for a party which was still going on at 3:30 a. m.;

9) On September 4, 1974, Mrs. Davis was observed leaving the Washington Country Club at 8:25 p. m., arm in arm with Dale Thompson, embracing and kissing passionately after which they went to Thompson's home in Colesville where they stayed until 12:35 a. m.;

10) On September 9, 1974, Mrs. Davis arrived at Thompson's home at midnight, Thompson arrived at 1:30 a. m., at 2:30 a. m. the lights on the first floor went out and the lights on the second floor went on, at 3:00 a. m. all lights went out until Mrs. Davis left the home at 4:30 a. m.;

11) On October 26, 1974, Mrs. Davis and Giovannoni arrived at the latter's apartment at 2:00 a. m. and at 9:30 a. m. Mrs. Davis left;

12) On November 30, 1974, Mrs. Davis and Giovannoni arrived at his apartment at 2:30 a. m. and at 9:30 a. m. Mrs. Davis left.

While there is no evidence that the appellee committed adultery at a location where Leigh was present, there was evidence that on occasions Mrs. Davis has taken her daughter out in the company of at least two of these men. Mrs. Davis did not in the testimony, either at the custody hearing not at the earlier trial, discuss her adulterous relationships in any manner. The chancellor with reference to the adulteries made no detailed findings of fact but stated that the 'evidence certainly was overwhelming in connection with her adultery.' The court found that Mr. Davis provided a more than adequate home for the two older children and that they seemed to be doing well with him. He found that Mrs. Davis had been providing an adequate home for the youngest child, Leigh. Stating that he was aware of the presumptions of unfitness that arise from adulteries, the chancellor felt that the best interest of the child was continuing the present situation rather than changing custody. The chancellor did not spell specific visitation rights but gave each party to the proceedings the reasonable rights of visitation with the children because the parties had themselves worked out these rights in a satisfactory manner.

Inasmuch as the chancellor's opinion after the custody trial was very brief, we will quote it in full:

'Gentlemen, I have, of course, heard all of the testimony in connection with the original trial of this case, which consumed a couple of days, and I have had the benefit of reviewing that transcript, and I have had the benefit of our custodial investigation in connection with the three children.

'It's obvious to me that Mr. Davis can and has provided an adequate or even more than adequate home for the two older children, and certainly on the basis of their latest report cards, and the custodial investigation report they are doing well with him.

'It's equally obvious to me that Mrs. Davis is able to and has been providing an adequate home for the youngest daughter, Leigh. It's quite obvious to me that she would be unable to remain where she is if the Court awarded her custody of all three of the children, but I don't intend to do that, so it's not necessary to really even discuss that aspect of the case.

'The primary concern of the Court in this particular case has been the younger child, Leigh, who has been with her mother, and as to whether that should be at least a temporary, permanent arrangement, or whether the custody should be changed to the father.

'Being aware of the law in reference to the adultery of the mother and the presumptions that...