Dietrich v. Anderson

• Decision Date: 28 June 1945
• Docket Number: 54.
• Citation: 43 A.2d 186,185 Md. 103
• Parties: DIETRICH et ux. v. ANDERSON.
• Court: Maryland Court of Appeals

43 A.2d 186

185 Md. 103

DIETRICH et ux. v. ANDERSON.

No. 54.

Court of Appeals of Maryland

June 28, 1945

Appeal from Circuit Court, Baltimore County; Frederick Lee Cobourn Judge.

Petition by John D. Dietrich and wife under Code 1939, art. 16, § 85 on which the court, as requested, assumed jurisdiction of Sandra Anne Anderson, an infant, and in June, 1941, awarded custody to petitioners. Four years later the child's father, Garnet W. Anderson, Jr., filed a petition to set aside the 1941 decree, and from a decree on January 8, 1945 setting aside the 1941 decree and awarding custody of the child to her father, petitioners appeal, and by leave of court the child's mother, Geraldine Anne Anderson intervened on the appeal. Petitioners also appeal from an order of February 28, 1945, denying leave to file a petition for review of the decree of January 8th. Motions by the child's father to dismiss both appeals.

Motion to dismiss appeal from order of February 28th granted and appeal dismissed, and motion to dismiss appeal from decree of January 8th denied and such decree reversed.

Edward L. Ward, of Baltimore (H. Courtney Jenifer and Walter M. Jenifer, both of Towson, on the brief), for appellants.

Herbert M. Brune and H. Hamilton Hackney, both of Baltimore (Louis M. Riehl, of Baltimore, on the brief), for appellee.

Hall Hammond, of Baltimore, and Roy W. Smith, of Council Bluffs, Iowa, amici curiae.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, MELVIN, HENDERSON, and MARKELL, JJ.

MELVIN Judge.

This case involves the custody of a child, Sandra Anne Anderson, whose parents were but seventeen years old when she was born (August 19, 1939), and were married while high school pupils in Council Bluffs, Iowa. Being totally unprepared for the duties and obligations of parenthood, the young father (the appellee here), who chose not to be diverted from his career as a student but continued on in that role from high school to college, soon found himself without wife or child. They separated in May, 1940, at Kingsport, Tennessee, the mother and infant leaving, without the father's knowledge, for Towson, Maryland, and the father, a few days later, going back to Nebraska. The purpose of the mother's visit to Towson, as subsequently revealed, was to join her sister and their mother, who, with the sister's husband, were then living in an apartment in the home of Mr. and Mrs. John D. Dietrich, the appellants in the instant case.

It was during this visit that the latter were asked, so they testified, to take over the care and custody of the infant, Sandra, with a view to adopting her. The mother did not appear as a witness, nor did her sister and brother-in-law, who must have been thoroughly conversant with Sandra's status in this home, so that on the record before us it is uncontradicted that she was placed with the Dietrichs under the circumstances related by them.

When the child's mother and grandmother returned to their home in Council Bluffs, Iowa, in July, 1940, they left Sandra, then ten months old, with the Dietrichs and she has been there ever since. She has had no other home and has known no parents other than Mr. and Mrs. Dietrich, who had no children of their own. It is undisputed--in fact it is conceded and emphasized throughout the successive stages of these proceedings--that this home, located in a delightful suburban environment, has left nothing to be desired in the way of wholesome, material advantages, and that in it this infant has developed into a happy, healthy child under the loving care and devotion of these foster parents who are, themselves, respected and substantial citizens of high moral character.

Under date of March 14, 1941, Mr. and Mrs. Dietrich filed a petition in the Circuit Court for Baltimore County under Section 85 of Article 16 of the Code, asking the court to assume jurisdiction of the infant, Sandra Anne Anderson, and to award them temporary custody of her. This petition was based on the allegations, mainly, that the infant's mother and maternal grandmother requested the petitioners, in May, 1940, to care for and adopt her; that having no children of their own, and being desirous of having a child in the home, they agreed to this upon the mother's promise that immediately upon her return to Council Bluffs she would institute divorce proceedings against her husband, obtain custody of the child, and then consent to the adoption proceedings in Baltimore County; that 'the father of the infant is in the military service and apparently has no interest in the child' (it was later disclosed that he was then a student at the University of Tennessee); that the mother has no means of support and no home of her own; that within a few days prior to the filing of the petition two letters had been received from the mother, threatening to come to Baltimore and take the child; that from their knowledge of the parents, petitioners believe it would be unfair to the infant to permit it to be taken from them by the mother, and that 'the safety, welfare and best interests of the child demand that this court assume jurisdiction over it at this time, to the end that a full investigation might be made by this court and its permanent custody later determined.'

On this petition the court passed an order assuming jurisdiction and control of the infant, and awarding temporary custody to the petitioners 'with leave to the parents, or either of them, to move for a rescission of this order at any time.'

Under date of March 20, 1941, the infant's mother, Geraldine Anne Anderson, filed a demurrer and answer to this petition, asking that the child's custody be awarded to her, instead of to the petitioners. The matter of this petition and answer was set for hearing in open court, and for four days during the first week in June, 1941, the hearings were conducted before the chancellor (the late Judge William H. Lawrence). All parties in interest, including the parents of the infant, appeared in person and were represented by counsel.

As a result of these hearings, the court on June 10, 1941, entered a decree awarding the custody of the infant, Sandra Anne Anderson, to the petitioners, John D. Dietrich and Mae Marsh Dietrich, his wife, and assuming jurisdiction over said infant, subject to the further order of the court. No appeal was taken from this decree, and its provisions, including, specifically, the assuming of jurisdiction, were not questioned on the record until June 13, 1944, when the father of the infant, Garnet W. Anderson, Jr., filed a petition in the original proceedings, asking that this court vacate its aforesaid order of June 10, 1941, on the ground that it was without jurisdiction to pass it, and alleging that the State of Virginia, and not the State of Maryland, was, and is, the legal domicile of the infant. The petition further alleges that the material and financial circumstances of the petitioner are now such that he is able to provide a suitable home and proper environment for his infant daughter, so that she can live with him and his mother in Memphis, Tenn., in quarters which he will provide for them. He contends that 'under the present circumstances, petitioner, as parent and natural guardian of the infant, Sandra Anne Anderson, is entitled to be awarded the custody of his daughter.' It is shown by the petition, and not disputed in the case, that since October, 1941, the petitioner has been in active service in the Army Air Corps; that for seventeen months until January, 1944, he was in foreign service as an air pilot, that he has made a meritorious and distinguished record in that service, and has been promoted to the rank of Captain. Since September 25, 1944, he has been on duty at Memphis, Tenn., where he expects to be stationed 'for an extended period' at the Memphis Air Base.

To this petition Mr. and Mrs. Dietrich filed a demurrer averring, in substance, that the petitioner assigns no material change of circumstances arising after the decree of June 10, 1941, legally justifying a modification of the decree for change of custody of the infant, Sandra Anne Anderson, and that 'the question of jurisdiction of this court to pass this decree of June 10, 1941, as well as the legal domicile of the child, Sandra Anne Anderson, is res adjudicata.' The court (Judge Murray) on November 28, 1944, sustained the demurrer on 'the question of the jurisdiction of this court to hear and determine this cause and to assume jurisdiction over said infant.' The demurrer as to all other grounds was overruled and the respondents granted leave to answer the remaining averments. This they did at length by referring in detail to the proceedings in June, 1941, leading up to the passage of the decree of June 10, 1941, and relating the progress made by the infant Sandra while in their home, without any help or contribution of any kind from, or interest shown by, the father or mother, since she was left with the respondents in 1940.

On this petition and answer the court of equity again heard voluminous testimony on the conflicting claims to this infant's custody. Whereas, in June, 1941, the principal contestant against the Dietrichs was the young mother, on the allegation that the father apparently had no interest in the child, at the hearing in June, 1944, it was the father who, for the first time, assumed the role of active claimant against the Dietrichs, and did so on the allegation, among others, that 'she (the mother) has abandoned all claim to the care and custody of the infant, Sandra Anne Anderson.'

At this last hearing, the chancellor pointed out that the 'material and vital testimony' to be adduced before him 'would be that which would affect the standing of the parties since the decree of Judge...