Kartman v. Kartman

• Decision Date: 22 June 1932
• Docket Number: 56.
• Parties: KARTMAN v. KARTMAN ET UX. [a1]
• Court: Maryland Court of Appeals

161 A. 269

163 Md. 19

KARTMAN v. KARTMAN ET UX. ^[a1]

No. 56.

Court of Appeals of Maryland

June 22, 1932

Appeal from Circuit Court No. 2 of Baltimore City; Samuel K. Dennis Judge.

Suit by Isador F. Kartman against Jacob Kartman and wife. From the judgment for defendants, plaintiff appeals.

Reversed and remanded.

Argued before BOND, C.J., and PATTISON, URNER, ADKINS, OFFUTT DIGGES, PARKE, and SLOAN, JJ.

H Mortimer Kremer and Wm. Cabell Bruce, both of Baltimore, for appellant.

Herbert Levy, of Baltimore, for appellees.

SLOAN J.

This is a struggle between two brothers for the possession of the seven year old son of one of them, and, like all such cases no matter how decided it leaves a scar which even time may not obliterate.

Two brothers, Isador Kartman, the appellant, and Jacob Kartman, appellee, married sisters. They resided in the same house, a duplex dwelling. Isador and his wife, with one son, occupied the ground floor apartment; Jacob and his wife, childless, the upper floor. When the boy in this case, Donald, was three weeks old, his mother died. For a few weeks after Isador's wife died, he and his six year old son, Robert, and the infant lived upstairs with the appellees; the care of the baby devolving on his aunt, Mrs. Jacob Kartman. The appellant then had his mother and father come to live with him and the son, Robert, in the lower apartment, where they remained for two years. The four then moved to a house near by on Liberty Heights avenue, where they lived together until August, 1929, when the father died. In that month the appellant married, and he, his wife, and son Robert, moved to Mount Washington. In the meantime the younger child has been with his uncle and aunt, the appellees, but has been on an average two days a week with his father, returning to the appellees at night, except on three occasions, on one of which it was manifest that the appellant did not intend to take him back.

The upshot of it all was that on July 30, 1931, Isador Kartman filed a bill against his brother Jacob Kartman and his wife, Erma, charging that the appellees were arbitrarily and unlawfully withholding in their custody the seven year old son of the appellant, and prayed a decree that the appellant be awarded his son. The bill is filed under the provisions of section 80, article 16, of the Code, which gives the equity courts of this state original jurisdiction in all cases relating to the custody or guardianship of children, but by that section it is provided that nothing therein "contained shall be construed to take away or impair the jurisdiction of the several Juvenile Courts in this State and of the Juvenile Court of Baltimore City in cases relating to dependent or delinquent children, or be taken or construed to repeal or modify the provisions of Section 21 of Article 42 of the Code of Public General Laws." These cases more often come before the courts on petitions for habeas corpus than on petitions or bills in equity, but no matter how they come the principles to be applied, the status of the parties, and the thing to be done are the same, and for this reason, and because of the intention of the Legislature in the enactment of section 80 of article 16, Act of 1920, c. 573, not to impair the effect or modify the provisions of section 21 of article 42, Acts of 1890, c. 70, it is in order here to quote from the latter act as follows: "Whenever a minor is brought before a court or judge upon habeas corpus in private custody, the court or judge, in the determination of the case, shall be guided and controlled by a parental consideration of what is demanded by the best interests of such minor, and the custody shall be determined without regard to technicalities of procedure and without reference to any alleged technical claim or right of custody; the minor, when brought up by habeas corpus, shall be deemed to be in the custody of and subject to the order of the court or judge issuing the writ or hearing the case, and the court or judge may adjourn the examination from time to time, and shall not allow the proceedings to be controlled by the parties thereto, or any of them, and it shall not lie within the power of the parties, or any of them, to dismiss the case or settle it; * * * and any court or judge disposing of the custody of a minor upon habeas corpus may assume and retain jurisdiction over such minor in as ample a manner as a court of chancery, or judge of a court of chancery upon bill or petition, and may pass such other and further orders in relation to his care and custody as may be deemed just and beneficial." But after all the acts referred to are merely declaratory of the powers theretofore exercised by courts of chancery where the disposition of children was concerned. Barnard v. Godfrey, 157 Md. 264, 145 A. 614. As expressed by Justice Brewer, then on the Supreme Court of Kansas, in case of petition of Frank B. Bort, 25 Kan. 308, 37 Am. Rep. 255: "When the custody of children is the question, * * * the best interest of the children is the paramount fact. Rights of father and mother sink into insignificance before that. Even when father and mother are living together, a court has the power, if the best interests of the child require it, to take it away from both parents, and commit the custody to a third person. In other words, a court of chancery stands as a guardian of all children, and may interfere at any time and in any way to protect and advance their welfare and interests." Schneider v. Batey, 161 Md. 547, 157 A. 739, 741.

In their brief, and at the argument, the appellees stressed an agreement or understanding between the brothers almost immediately after the mother's death, and alleged declarations of the father afterwards, as in the nature of an estoppel to his right to take these proceedings, and cited several authorities to the effect that such agreements should be respected, but, as stated in Re Rosenthal, 103 Pa. Super. Ct. 27, 157 A. 342, 344: "The relationship of parent and child is a status--not a property right. * * * The paramount issue--whether the jurisdiction of the court of the county in which the child happens to be at the time ( Finlay v. Finlay, 240 N.Y. 429, 148 N.E. 624, 40 A L. R. 937, and Commonwealth v. Daven [298 Pa. 416, 148 A. 524], supra) is invoked in habeas corpus proceedings, by petition, or by bill, or in any other way--is the best interest and permanent welfare of the child. The contract is not conclusive, but must yield to this consideration." This is also the rule declared in this state by the statute quoted (article 42, section 21), wherein it is stated that the court "shall be guided and controlled by a parental consideration of what is demanded by the best interests of such minor, and the custody shall be determined without regard to technicalities of procedure and without reference to any alleged technical claim or...