Kauten v. Kauten, 233

• Decision Date: 11 February 1970
• Docket Number: No. 233,233
• Citation: 261 A.2d 759,257 Md. 10
• Parties: Thomas E. KAUTEN v. Juanita L. KAUTEN.
• Court: Maryland Court of Appeals

Page 10

257 Md. 10

261 A.2d 759

Thomas E. KAUTEN v. Juanita L. KAUTEN.

No. 233.

Court of Appeals of Maryland.

Feb. 11, 1970.

C. Jefferson Dotson, Mt. Rainier, for appellant.

George E. Andrews, Camp Springs (Robert J. Schick and Andrews & Schick, Camp Springs, on the brief), for appellee.

Before HAMMOND, C. J., and BARNES, FINAN, SMITH and DIGGES, JJ.

FINAN, Judge.

This case is before us on appeal from a final order of the Circuit Court for Prince George's County. The order arose from a divorce proceeding in which the husband, appellant, was granted a divorce a vinculo matrimonii on the grounds of his wife's adultery while she was awarded custody of their daughter. It is the custody decision which is being appealed.

The parties to this dispute were married October 4, 1961, and the child whose custody is involved was born February 5, 1964. On October 19, 1967, the appellant was granted a divorce a mensa et thoro from the appellee, his wife, on grounds of desertion. Custody was awarded to appellee. Although unknown at the time of the first custody hearing, the appellee, a white woman, was eight months pregnant, the putative father being black. The appellee gave birth to the child on November 19, 1967.

On November 22, 1968, a hearing for a divorce a vinculo matrimonii was held, and on June 20, 1969, the order was issued granting the appellant the divorce and continuing custody in the appellee.

The legal standard to be applied in custody cases is quite clear, the best interest of the child being the determinative factor in making the award. Orndoff v. Orndoff, 252 Md. 519, 250 A.2d 627 (1969); Shanbarker v. Dalton, 251 Md. 252, 247 A.2d 278 (1968); Breault v. Breault, 250 Md. 173, 242 A.2d 116 (1968). While simple to state, application of the rule is often quite difficult for an appellate tribunal which has before it only the transcribed record. For this reason the Court has established certain principles for better application of the legal standard to the facts at hand. For example it will be a rare occurrence when a young child will be taken from its mother if she is a fit person and all other things are equal. Hild v. Hild, 221 Md. 349, 357, 157 A.2d 442 (1960). This is true even though the mother has been guilty of adultery. Shanbarker v. Dalton,supra. Another common principle is that a person who has committed adultery will have the burden of proving his fitness. Insogna v. Insogna, 229 Md. 33, 181 A.2d 677 (1962); Palmer v. Palmer, 238 Md. 327, 207 481 (1965); and Cornwell v. Cornwell, 244 Md. 674, 224 A.2d 870 (1966). Perhaps the most often applied rule of interpretation is that the chancellor's findings of fact should be given great weight since he had the parties, witnesses and child before him. Holcomb v. Holcomb, 255 Md. 86, 256 A.2d 886 (1969); Daubert v. Daubert, 239 Md. 303, 211 A.2d 323 (1965); and Sibley v. Sibley, 187 Md. 358, 50 A.2d 128 (1946).

Reviewing the evidence in the present case, it would seem that either parent can support an adequate home. This view is confirmed by a report from the Department of Juvenile Services. There was also evidence that, ten years prior to this litigation, when he was seventeen years of age, the father spent seven months in Spring Grove Hospital because of mental instability. Also, that upon one occasion, after their separation, he threatened the wife that he would solve their problems with a .38 revolver. The wife, however, admitted that she did not consider him a violent person.

The child involved has had a history of medical problems and suffers from a serious kidney ailment. In light of the child's youth and the close attention she requires it is not surprising that the chancellor awarded custody to the mother at the original hearing on October 19, 1967, since other factors being equal the mother will usually be given a young...