Kerns v. Kerns, No. 1016

CourtCourt of Special Appeals of Maryland
Writing for the CourtBLOOM
Citation59 Md.App. 87,474 A.2d 925
PartiesKaren Lea KERNS v. Eugene J. KERNS, Jr. Sept. Term 1983.
Decision Date09 May 1984
Docket NumberNo. 1016

Page 87

59 Md.App. 87
474 A.2d 925
Karen Lea KERNS
v.
Eugene J. KERNS, Jr.
No. 1016 Sept. Term 1983.
Court of Special Appeals of Maryland.
May 9, 1984.

[474 A.2d 926]

Page 88

William F. Renahan, Lanham, with whom were Renahan & Walsh, Lanham, on brief, for appellant.

Kenneth A. Isen, Riverdale, with whom were Weatherly, Schiszik & Isen, Riverdale, on brief, for appellee.

Argued before BISHOP, GARRITY and BLOOM, JJ.

BLOOM, Judge.

The present appeal requires us to address a heretofore unanswered question, i.e., does a chancellor in a contested child custody proceeding have the authority to award joint custody of the children to both parents? We conclude that a chancellor does have such authority. We also conclude that the chancellor in the instant case did not abuse his discretion in making such an award.

Karen Lea Kerns, appellant, and Eugene J. Kerns, Jr., appellee, were married on December 5, 1970. Their marriage produced two children, Michael Joseph, born on June

Page 89

13, 1971, and Kristina Marie, born on September 26, 1975. Although there is some dispute as to the circumstances leading to and surrounding the parties' separation, it is clear that they did separate on November 24, 1979, when appellant, together with the two children, left the marital home.

What followed the separation can best be characterized as a bitter, intense, and sometimes violent struggle over control of the custody and lives of the children. For the first three months following the separation, both children lived with appellant. Appellee believed that appellant was unreasonably restricting his access to the children. Appellee went to appellant's house, ostensibly to visit the children, but drove away with them and took them to live with him. He then enrolled both children in a private school. Shortly thereafter, appellant forcibly removed Kristina from the school. From the time of that incident until the chancellor's order of joint custody, Kristina resided with appellant and Michael resided with appellee.

Following the separation, the parties embarked upon a long period of procedural maneuvering which included a bill of complaint for divorce, a counter-bill for divorce and various petitions for modification of custody orders. By consent, temporary custody of Kristina was awarded to appellant and similar custody of Michael was awarded to appellee. The relationship between the parties remained acrimonious, and there were attempts by appellee to regain custody of Kristina by force. The friction that existed between the parties was further evidenced by fisticuffs that occurred on Easter 1982 between appellee [474 A.2d 927] and appellant's paramour. Furthermore, there were allegations that appellant changed addresses and phone numbers without contacting appellee, thereby depriving appellee of contact with Kristina. Just as appellee complained about his difficulty in seeing Kristina, appellant likewise was dissatisfied with the amount of time she was permitted to be with Michael.

Page 90

The battle for the children came to an adjudicatory showdown on March 11 and 12, 1982, in a trial on the cross bills of complaint for divorce a vinculo matrimonii filed by both parties. The Circuit Court for Prince George's County granted the divorce on the ground of the parties' three year separation. Md.Ann.Code art. 16, § 24. Since the parties had previously resolved all issues pertaining to disposition of marital property and neither party was requesting alimony, the sole issue, other than the divorce, was the custody and support of the children. The chancellor awarded custody of the children jointly to appellee and appellant. During the then current school year, Kristina would continue to reside with appellant and Michael would remain with appellee. Thereafter, both children would reside with appellee. The decree set forth a detailed visitation schedule, intended to afford "liberal and reasonable" visitation rights to appellant. In this appeal from that decree, appellant asserts:

I. The court is without authority to make an award of joint custody and abuses its discretion in making such an award when it is not requested or consented to by the parties.

II. Assuming arguendo that the court had the authority to award joint custody in the absence of the request or consent of the parties, the award of joint custody was inappropriate in this case.

III. The appellee has failed to demonstrate a change of circumstances necessary to justify a transfer of custody.

I. Chancellor's authority to grant joint custody

Appellant argues that, while there is no case law directly addressing the subject, Md.Ann.Code art. 72A, § 1 "seems to preclude an award of joint custody." Appellant points to the portion of that statute which provides: "Where the parents live apart, the court may award the guardianship of the child to either of them, but, in any custody proceeding, neither parent shall be given preference solely because of his or her sex" (emphasis added). Appellant argues that

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the emphasized portion of the statute requires the court to award custody to one of the parents but not both of them. We disagree. While it is arguable that the emphasized portion requires the court to make a choice between the parents, such an interpretation ignores the remainder of the sentence which forbids any preferences based solely on the parent's sex. "Read as a whole, the sentence deals with whether a parent's sex should be relevant when both are requesting custody, not with joint versus sole custody." Ester,Maryland Custody Law--Fully Committed to the Child's Best Interests?, 41 Md.L.Rev. 225, 252 (1982). Furthermore, we note that the section provides that the court may award the guardianship of the child to either parent; it does not provide that the court shall award guardianship to either parent. Adopting language from an opinion of the Attorney General, we refuse to hold "that such a provision--designed to permit a court, in its discretion, to deprive one or another parent of all right to custody--should be read to preclude a court, under appropriate circumstances, from approving an arrangement that instead is designed to preserve both parents' right to continued...

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13 practice notes
  • Bienenfeld v. Bennett-White, BENNETT-WHITE
    • United States
    • Court of Special Appeals of Maryland
    • September 1, 1991
    ...custody to show a change of circumstances when the other party has custody by virtue of a pendente lite award of custody. Kerns v. Kerns, 59 Md.App. 87, 97, 474 A.2d 925 (1984). Kerns is inapposite to the case before us, however. Unlike in Kerns, the agreement-based custody order in the ins......
  • Frase v. Barnhart, No. 6
    • United States
    • Court of Appeals of Maryland
    • December 11, 2003
    ...as current circumstances warrant, and it does not bind the court when it comes to fashioning the ultimate judgment. See Kerns v. Kerns, 59 Md.App. 87, 97, 474 A.2d 925, 930 (1984); Leary v. Leary, 97 Md.App. 26, 52-53, 627 A.2d 30, 43 (1993); Kovacs v. Kovacs, 98 Md.App. 289, 311-12, 633 A.......
  • Leary v. Leary, No. 1558
    • United States
    • Court of Special Appeals of Maryland
    • September 1, 1992
    ...continues to be what is in the best interests of the child. McCready v. McCready, 323 Md. 476, 481, 593 A.2d 1128 (1991); Kerns v. Kerns, 59 Md.App. 87, 97, 474 A.2d 925 (1984) (no need to show a change of circumstances following a pendente lite Mr. Leary contends that, if the court's opini......
  • Santo v. Santo, No. 89, Sept. Term, 2015.
    • United States
    • Court of Special Appeals of Maryland
    • July 11, 2016
    ...authority of courts to award joint custody. Summ. of Comm. Rep., S. Judicial Proceedings Comm. H.B. 810 (1986) (citing Kerns v. Kerns, 59 Md.App. 87, 474 A.2d 925 (1984) ). The General Assembly's decision to codify case law in FL § 5–203 established no limitation upon a trial court's equity......
  • Request a trial to view additional results
13 cases
  • Bienenfeld v. Bennett-White, BENNETT-WHITE
    • United States
    • Court of Special Appeals of Maryland
    • September 1, 1991
    ...custody to show a change of circumstances when the other party has custody by virtue of a pendente lite award of custody. Kerns v. Kerns, 59 Md.App. 87, 97, 474 A.2d 925 (1984). Kerns is inapposite to the case before us, however. Unlike in Kerns, the agreement-based custody order in the ins......
  • Frase v. Barnhart, No. 6
    • United States
    • Court of Appeals of Maryland
    • December 11, 2003
    ...as current circumstances warrant, and it does not bind the court when it comes to fashioning the ultimate judgment. See Kerns v. Kerns, 59 Md.App. 87, 97, 474 A.2d 925, 930 (1984); Leary v. Leary, 97 Md.App. 26, 52-53, 627 A.2d 30, 43 (1993); Kovacs v. Kovacs, 98 Md.App. 289, 311-12, 633 A.......
  • Leary v. Leary, No. 1558
    • United States
    • Court of Special Appeals of Maryland
    • September 1, 1992
    ...continues to be what is in the best interests of the child. McCready v. McCready, 323 Md. 476, 481, 593 A.2d 1128 (1991); Kerns v. Kerns, 59 Md.App. 87, 97, 474 A.2d 925 (1984) (no need to show a change of circumstances following a pendente lite Mr. Leary contends that, if the court's opini......
  • Santo v. Santo, No. 89, Sept. Term, 2015.
    • United States
    • Court of Special Appeals of Maryland
    • July 11, 2016
    ...authority of courts to award joint custody. Summ. of Comm. Rep., S. Judicial Proceedings Comm. H.B. 810 (1986) (citing Kerns v. Kerns, 59 Md.App. 87, 474 A.2d 925 (1984) ). The General Assembly's decision to codify case law in FL § 5–203 established no limitation upon a trial court's equity......
  • Request a trial to view additional results

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