Fanning v. Warfield

• Decision Date: 10 January 1969
• Docket Number: No. 6,6
• Citation: 248 A.2d 890,252 Md. 18
• Parties: , 36 A.L.R.3d 1086 Carol H. FANNING v. Edwin WARFIELD, III.
• Court: Maryland Court of Appeals

Page 18

252 Md. 18

248 A.2d 890, 36 A.L.R.3d 1086

Carol H. FANNING v. Edwin WARFIELD, III.

No. 6.

Court of Appeals of Maryland.

Jan. 10, 1969.

William B. Wolf, Jr., Washington, D.C., for appellant.

Charles E. Hogg, Ellicott City, and (Irving V. M. Abb, Rockville, on the brief) for appellee.

Before HAMMOND, C. J., and MARBURY, BARNES, McWILLIAMS, SINGLEY and SMITH, JJ.

HAMMOND, Judge.

The appeal is by a divorced and remarried mother, Mrs. Philip Fanning, now a resident of Far Hills, New Jersey, from a decree of the Circuit Court for Howard County passed by Judge Sachse, (a) dismissing her petition for contempt against her former husband, the father of their four children, for kidnapping their eldest son, (b) retaining permanent custody of the four children in the mother, (c) granting the father the right to send the eldest child, the son to Gilman School in Baltimore, either as a day student or a five-day boarder, the boy to reside with his father, also remarried, in Howard County 'from Sunday evening until his school-week is completed on Friday' if a day student, and also on two consecutive week-ends in every four-week period, and (d) fixing other periods of visitation.

The couple were married in 1947 and lived in Howard County until they separated voluntarily in 1964. In 1965 they executed a separation agreement, which provided in parts here pertinent:

'A. That Husband agrees that wife shall have custody of the children on condition that Husband shall have free and full rights of visitation with said children at such times as will not interfere with the schooling and welfare of said children. Husband shall have the children visit with him for at least six weeks each summer and for at least half of the Christmas and Easter school holidays, exact times to be arranged between the parties by mutual agreement. The parties agree that either party shall have the right annually upon request to have this custody agreement reconsidered before their respective counsel or by the Court.

'B. Husband agrees to pay (or be responsible) for the support of the children, Four Hundred Dollars ($400.00) Permonth and in addition one-half of the school tuition of said children beginning September, 1965, provided he shall be consulted as to the place or places of their schooling.'

A supplement to the agreement, signed by both parties, provided:

'that the parties confirm their understanding that the meaning of said sentence is that they agree that either party shall have the right annually upon request to have the visitation provisions of the custody agreement reconsidered before their respective counsel or by the Court, and that they do not intend that the basic grant of custody to the wife shall be the subject of such reconsideration.'

The agreement as clarified was ratified, confirmed and incorporated in the decree of divorce of January 21, 1966, which in addition specifically gave custody of the four children to the mother. Nevertheless in the Spring of 1966 the father sought to persuade the mother to send the son to live with him and go to Gilman School commencing in September 1966. The mother decided it would be better for the boy to continue his schooling at the Far Hills Country School and the father, apparently reluctantly, continued to pay half the tuition at Far Hills. Throughout the school year of 1966-67, the father not only maintained but intensified his pressure to bring about the boy's going to Gilman. The mother countered by saying that she would give consideration to any good full time boarding school selected by the father, suggesting five or six, all of which were comparable to Gilman.

In May 1967 the father filed a petition for modification of custody and visiting rights in order to gratify his increasing determination to have his son live with him and attend Gilman School.

A hearing on the petition was held in open court before Judge Mayfield in June 1967. When the testimony was concluded, Judge Mayfield at the close of the day said on the questions of custody and schooling:

'the basic problem is, what's the best interest and the best welfare of the children, the four children. Obviously, there's some lingering differences, resentments and bitterness between Mr. Warfield and Mrs. Fanning, which probably is understandable, but I haven't heard anything from the testimony that's been offered to indicate that any degree in change of custody is necessary, nor anything to indicate that the children are not being well-cared for, well-provided. I'm positively certain that both parents love the children equally, with the greatest amount of affection emanating from both parents, but, it would be extremely difficult for me certainly, and I would suspect, any Court, to say that one school or the other is better. I can understand Mr. Warfield's desire to have his son go to Gilman and I can understand Mrs. Fanning's reasons for wanting him to go to boarding school. Which would be the better in the long run I'm unable to say. I think it would be impossible for me to decree that the child attend one or the other schools. I think that from what Mrs. Fanning has testified, that by her indicated attention and desire, she is fulfilling the terms of the agreement with regard to schooling, when she says that she's satisfied that Ted will attend a boarding school either in Maryland or elsewhere, as long as it's a full-time, seven-day, boarding school. And, I have no reason to suspect that he wouldn't get an equal education at a good boarding school and equal to the education that he might receive at Gilman. And, that arrangement might also afford a better opportunity for both parents to visit without recrimination from either. So, I certainly wouldn't include in any decree, that I wrote, any directive, that Edwin attend one or the other schools.

'As I say again, I've heard nothing to indicate that the, up to the present at least, that the best interests and the welfare of the children are not being met at the present time. Their schooling is, according to the testimony, in good shape. There's no indication that they are not in good health, well-clothed, well-housed, and they are certainly showered with love and affection. So, I wouldn't do anything to change the basic custody until perhaps that there's some...