Hild v. Hild

• Decision Date: 25 January 1960
• Docket Number: No. 10,10
• Parties: Edward F. HILD v. Ethel M. Cover HILD.
• Court: Maryland Court of Appeals

Page 349

221 Md. 349

157 A.2d 442

Edward F. HILD v. Ethel M. Cover HILD.

No. 10.

Court of Appeals of Maryland.

Jan. 25, 1960.

J. Francis Ford, Baltimore, for appellant.

W. Giles Parker, Baltimore, for appellee.

Before BRUNE, C. J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.

HORNEY, Judge.

It has been said that the courts have no greater responsibility or more difficult problem than to decide a question respecting the custody of a child. ¹ The statement is as applicable to an appellate court as it is to a court on the nisi prius level. This appeal is certainly not an exception. The father of a seven-year old boy has appealed from a custody decree in a case in which the chancellor, having previously found the mother guilty of adultery and granted the father a divorce, subsequently awarded the custody of the child to the mother. The mother had married the second of two paramours almost immediately after the divorce decree and several months before the date of the custody decree.

The litigants were married in April of 1951 and the child was born in April of 1952. As early as 1953 the parties had marital difficulties and the wife left the husband and filed suit for a divorce. Later, when the husband was about to be inducted into the armed service, a reconciliation was effected. During the time he was stationed at training centers in this country, particularly while he was in Texas, the parties lived together with their son until the husband was sent overseas to Korea. After the husband was discharged from the service in October of 1955, the marital relationship was resumed for approximately three days, but came to an abrupt end when the wife informed the husband that she no longer cared for him and ordered him to leave the home of her parents where they had been sojourning. The wife retained custody of the first born son, and a second son was born to her in July of 1956. The husband did not seek custody of the second child because he believed that it was not his.

In January of 1956 the wife filed another bill in the Circuit Court for Baltimore County on the grounds of abandoment and desertion and sought an absolute divorce, and in the alternative a partial divorce, and custody of the first born child. The husband countered with a cross-bill on the ground of adultery and also sought custody of the child.

It would serve no useful purpose to relate the details of the adulterous relationships and other indiscritions of the wife. The chancellor believed the wife had not been truthful, had testified falsely as a witness and had committed perjury. He found that she had been guilty of adultery with two men and that she was then living in open adultery with one of them. During the course of his oral opinion the chancellor stated that the father of the older boy was a man of excellent character and had testified to the truth. He also stated that the paternal grandmother of the order boy was a woman of exemplary character and that he believed her testimony. The chancellor was further of the opinion that the maternal grandfather and grandmother of the boys were excellent people, but he thought they had not told all they knew of their daughter's conduct and had concealed more than they had revealed. He added, however, that he appreciated their reluctance to testify about their daughter, that he sympathized with their difficult situation, and that he did not hold their hesitation or timidity against them.

On July 8, 1958, nearly four months after hearing the divorce actions in open court, the chancellor granted the husband an absolute divorce from his wife, but he reserved the custodial question and awarded temporary custody of both children to the wife with visiting rights to the husband under supervision of the probation department of the court. The divorced wife did not appeal from the divorce decree.

On October 1, 1958, approximately three months later, the chancellor passed the custody decree by which, although he was not impressed with the mother's character, he decided that the best interests of the older child impelled him to continue temporary custody with the mother under strict supervision and with more extensive visitation rights to the father. It was from this decree that the present appeal was taken by the father.

Prior to hearing testimony on the divorce actions, the chancellor had caused the chief probation officer to investigate the home of the wife as well as that of the husband and his mother. The officer testified in open court that he had made three surprise visits to the wife's home and that on each occasion he had found the children happy, healthy and well cared for. When he was asked by the court to express his opinion as to the desirability of separating the children, he confessed that he was not an expert in that field and doubted his competence to comment thereon, but went on to say that from a 'physical standpoint' it would be a tragedy to take them from their mother or to 'split them up.' And when he was pressed as to the effect on the children of the mother's promiscuity in her sexual relations, he was of the opinion that the mother would put the welfare of the children first and that her past conduct would not reflect on them in the future. At the time of these visits the mother and the paramour she later married were living together as man and wife. The officer further testified that he had visited the home of the husband and his mother and made inquiries in the neighborhood as to their standing. As a result of this investigation he was satisfied that their home would be an 'excellent environment' in which the boy would be 'excellently cared for.'

There was no other testimony by official or disinterested witnesses bearing on the question of custody. However, there were in the transcript two written reports of an assistant who took over where the chief probation officer left off, but they had not been included in the printed appendix. It was for this reason, with the approval of counsel for both parties, that we ordered all written reports and recommendations of the probation officers, as well as summarizations of such reports and recommendations as had been made orally to the chancellor, to be made a part of the record on appeal. This was done. Some of the reports were in writing initially and others had been made orally from written notes made at the time of each interview. ² The three conferences which the chancellor had with the chief probation officer took place after the court hearing, but before the passage of the custody, decree, and for the most part were merely an elaboration of what he had testified to in court. The only pertinent reports of the assistant probation officer considered by us were made between the date [October 1, 1958] of the custody decree continuing temporary custody and the date [March 20, 1959] of the supplemental opinion, filed with the transcript of the testimony taken in open court, which supplemental opinion was in effect a renewal or affirmation of the custody decree continuing temporary custody. Primarily such reports involved visits made by the assistant to the mother's home and the boy's school.

Despite the mother's lack of cooperation with the probation department--with respect to the visiting rights of the father which she refused to facilitate except when it suited her--and her past indiscretions, the assistant too was of the opinion that the welfare of the older boy would best be served by staying with his mother. He also found the boy to be happy, healthy and well adjusted with his stepfather, his brother, his mother and in school. The mother was seeing that the boy received some religious training though he had difficulty distinguishing the difference between the public school and the church school. The child expressed a desire to visit his father, but not to stay overnight, and preferred to stay most of the time with his mother, his brother and his dog. While it is undoubtedly true that both parents sparred for the boy's affections without considering the feelings of the other parent, there is no doubt that the mother had deliberately endeavored to prejudice the child against the father. Moreover, as so often happens, the parents, in discussing their respective situations in front of the boy, demonstrated their hatred of each other and considered their own wounded pride rather than the boy's welfare.

In the supplemental opinion filed March 20, 1959, the chancellor, in addition to remarking that he had great respect for, and confidence in, the probation officers and the director of the probation department, who had also given the question of custody considerable thought, stated that '[t]he probation officers and the Court have come to the unanimous opinion ³ that it is in the best interest of this child [the oldest son] to remain with the mother, * * * with liberal visiting privileges for the father * * * [so that he] should have an opportunity to see much of the child, to remain in close contact with him and to have the child in his custody over weekends so that he can see that the child receives the religious training which he wishes the child to have.' The chancellor was apprehensive that 'to disrupt the child's life at this time by placing him in a different environment might have a most unfavorable influence upon the little boy.' Recalling his remarks concerning the mother's veracity, the chancellor recognized that he had been 'rather severe,' but reiterated that the child 'should continue to live with her as at present.'

At the common law the father was generally entitled to the custody of his minor children, but in the absence of statutory requirements to the contrary, modern courts invariably hold that the best interests and welfare of the child should be primarily considered in making an award of custody. Carter v. Carter, 1929, 156 Md. 500, 144 A. 490.

As we observed at the outset, the task of awarding the...