Ellis v. Ellis, 75
| Decision Date | 23 November 1973 |
| Docket Number | No. 75,75 |
| Citation | 19 Md.App. 361,311 A.2d 428 |
| Parties | Candice Frances ELLIS v. Harold Alvin ELLIS. |
| Court | Court of Special Appeals of Maryland |
Glenn B. Harten, Hyattsville, for appellant.
Bond L. Holford, Lanham, for appellee.
Argued before MORTON, POWERS and DAVIDSON, JJ.
This is an appeal by the mother of a five year old daughter from an order issued in the Circuit Court for Prince George's County, entitled 'Order Amending Final Decree of Divorce,' under which it was directed that the final divorce decree be 'modified and that the natural father, Harold Alvin Ellis, be awarded custody of the parties' infant child, Stella Francesca Ellis, with reasonable rights of visitation granted to the mother, Candice Frances Ellis.' It was further ordered that the provision for child support be stricken from the final divorce decree.
It appears that the appellant was granted a divorce from the appellee on July 2, 1969, and was awarded custody of their then two year old child. On November 17, 1972, the father, through appropriate pleadings, sought to gain custody of the child on the ground of the mother's unfitness. The issue was referred to a domestic relations Master who conducted an extensive hearing at which a number of witnesses testified on behalf of the parties and on December 18, 1972, the Master filed a report in which he recommended that custody of the child be awarded to the father.
Thereafter, the appellant filed exceptions to the Master's report and the appellee filed objections to the exceptions. The matter came on for hearing before the Chancellor on January 29, 1973. The Chancellor refused to permit the appellant to amend the exceptions and overruled them on the ground that they did not conform to the requirements of the local rules. The next day the Chancellor filed the order which is the subject of this appeal. Here, it is contended that the Chancellor erred in overruling the exceptions and in awarding the custody of the infant child to the father rather than allowing the child to remain in the mother's custody.
We do not reach these contentions because there would appear to be, on the record before us, a fundamental and crucial missing link in the judicial process with respect to the proceedings below, for it would appear that there was no evidence or testimony before the Chancellor at the time he signed the order awarding custody of the child to the father from which he could make a knowing and intelligent judgment concerning what actions should be taken which would best serve the interests and welfare of the infant child of the parties.
It is clear from the record that the Chancellor did not have before him a transcript of the testimony taken before the Master, Domestic Relations Causes, on December 14, 1972, since the request for such a transcript was not made until the appellant's solicitor filed such a request on March 9, 1973, so that it 'may be included as a part of the record that goes to the Court of Special Appeals.' It is equally clear that the so-called report of the Master contained no summary of the testimony adduced at the hearing and set forth no findings or basis for his recommendation. In fact, the report was simply a recommendation, without supportive reasons of any nature, that custody of the child be awarded to the father and that the child support provision in the original divorce decree be stricken.
Rule S 80 b and c of the 'Court Rules-Seventh Judicial Circuit of Maryland' provides, in pertinent part:
'b. REFERRAL.
The Clerk of Court shall refer to the Master for Domestic Relations Causes the following actions in which a hearing has been requested on a Bill or Petition:
2. For modification of existing orders or decrees to increase or decrease the amount of alimony or child support, or to change the custody of minor children or provisions for child visitation;
c. DUTIES.
The Master shall hear testimony and argument, unless waived, of counsel in all actions and thereafter promptly file in the proceedings his recommendation to the Court, duly signed by him. The Master shall at the same time notify each party to the action, or his counsel, of his recommendation by mailing a copy thereof, by ordinary mail, postage prepaid, to the address indicated in the pleadings.
Unless exceptions to the Master's findings and recommendation are filed within the time permitted by this Rule, the Master shall, after the expiration of such time, place in the Court file for consideration by the Court an appropriate order in accordance with his recommendation.
In divorce, annulment or separate maintenance actions heard by the Master there shall be filed in the proceedings either the stenographic transcript, or recording from a mechanical recording device, of the hearing.'
It is to be noted that the Rule makes no provision for the filing of a stenographic transcript or recording in cases of child custody and it would appear that none had been filed in the proceedings below at the time the Chancellor's order was entered. In fact, counsel for both parties to this appeal advised us at the time of argument before this Court that none had been filed.
If, as we can only assume from the state of the record before us, the Chancellor below had no evidence or testimony before him from which to make a determination of the status or the respective living conditions of the mother and father, which determination would be a sine qua non to an intelligent judgment of what course of action would be in the best interest of the infant child of the parties, a gross miscarriage of justice has occurred. Litigants in a child custody proceeding, as in all judicial proceedings, are entitled to have their cause determined ultimately by a duly qualified judge of a court of competent jurisdiction. Md.Const., Art. IV, § 1; Md. Code, Art. 26, § 30; Md. Rule 71 a. While the system of resorting to Masters is one of long standing 1 and undoubtedly has salutary effects resulting in the more expeditious dispatch of the judicial process, the system cannot supplant the ultimate role of judges in the judicial process itself.
As long ago as 1829, Chancellor Bland in Townshend v. Duncan, 2 Bland 45, traced the long history of Masters in Chancery. In outlining their functions and responsibilities, he concluded, at 57: 'The report of a master ought to be without any unnecessary recitals, as succinct as may be; and confined...
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Lemley v. Lemley
...The difficulty arises in large part from the role that masters play in our judicial system. As we explained in Ellis v. Ellis, 19 Md.App. 361, 365, 311 A.2d 428 (1973): Litigants in a custody proceeding, as in all judicial proceedings, are entitled to have their cause determined ultimately ......
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State v. Wiegmann
...not defer to the master's recommendation as to the appropriate course of action. Id. at 606, 402 A.2d 94; see also Ellis v. Ellis, 19 Md.App. 361, 365, 311 A.2d 428 (1973). A master is, however, an officer of the court, appointed by the circuit court; that court has constitutional authority......
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Wiegmann v. State, 1432
...not defer to the master's recommendation as to the appropriate course of action. Id. at 606, 402 A.2d 94; see also Ellis v. Ellis, 19 Md.App. 361, 365, 311 A.2d 428 (1973). A master is, however, an officer of the court, appointed by the circuit court; that court has constitutional authority......