Kirstukas v. Kirstukas, 316

• Decision Date: 31 January 1972
• Docket Number: No. 316,316
• Citation: 14 Md.App. 190,286 A.2d 535
• Parties: John M. KIRSTUKAS v. Edwin KIRSTUKAS.
• Court: Court of Special Appeals of Maryland

Page 190

14 Md.App. 190

286 A.2d 535

John M. KIRSTUKAS v. Edwin KIRSTUKAS.

No. 316.

Court of Special Appeals of Maryland.

Jan. 31, 1972.

Allen D. Grief, Baltimore, with whom were David Cohen, and Grief, Cohen & Alpert, Baltimore, on brief, for appellant.

Norman F. Summers, Baltimore, with whom was Julian S. Brewer, Jr., Arbutus, on brief, for appellee.

Argued before MORTON, ORTH and MOYLAN, JJ.

MOYLAN, Judge.

A decree of divorce a vinculo matrimonii granted by Judge J. Gilbert Prendergast in the Circuit Court for Baltimore City terminated the marital discord between Joan Kirstukas, the appellant (Wife), and Edwin Kirstukas, the appellee (Husband). It could not dissipate the discord over the custody of the three minor children of that marriage, which custody is the subject of this appeal.

The Husband and Wife were married on September 18, 1959. The three children of that marriage were, at the time of trial, respectively, a ten-year-old son, a nine-year-old daughter, and a five-year-old daughter. The Wife had a fourteen-year-old daughter from a previous marriage. The Husband and Wife physically separated on January 18, 1969. The Wife filed for a divorce a mensa et thoro, charging constructive desertion. The Husband filed a cross bill for divorce a mensa et thoro, charging actual desertion. The Wife subsequently filed a supplemental bill for a divorce a vinculo matrimonii, charging that the constructive desertion had then persisted for an uninterrupted period of eighteen months. The Husband filed a supplemental cross bill for divorce a vinculo matrimonii, charging that the actual desertion had then persisted for an uninterrupted period of eighteen months. Both Husband and Wife sought the award of permanent care and custody of their three minor children. At the conclusion of the strenuously-contested trial, Judge Prendergast dismissed the Wife's bill and granted a divorce a vinculo matrimonii to the Husband on the grounds of actual desertion. He deferred ruling on the subject of custody, pending the opportunity to talk in chambers to the children.

On March 19, 1971, Judge Prendergast filed the formal decree, granting the divorce to the Husband and also awarding him the custody of the three children. Incorporated as part of the record is Judge Prendergast's letter to counsel for both parties of March 12, 1971, explaining his reasons for his decision on the question of custody. It reads, in pertinent part:

'At the suggestion of counsel, the question of custody of the three children was deferred until the court should have the opportunity to interview them in chambers several days later. This has been done, and as the result I have concluded that the disturbing question of custody must be resolved so that the custody of all three children must be awarded the father, Edwin Kirstukas, subject to the further order of the court. It may well be noted that this conclusion is supported by the rather thourough investigation conducted by a representative of the Adoption and Custody Division of the Department of Juvenile Services, who testified at the trial.

In all divorce cases where the parties have children, the real losers generally are the children. I am satisfied that all three of these young people need and would like to have the company of both parents at all times but, unfortunately, Mrs. Kirstukas has left their home and refuses to return. Her activities are such that she has not been able to care for the children as well as she could and, I am sure, would do if she had remained at home. Mrs. Kirstukas has been in the past a good mother to the children and I believe they are devoted to her, but they are far happier with their father, who has managed to make provision for their upbrining, support and education, which I think is superior to that which they en joy at present.'

The Wife does not contest the granting of the divorce to her former Husband. She does contest, most strenuously, the awarding to him of the custody of the three children.

In Sullivan v. Auslaender, 12 Md.App. 1, 3-5, 276 A.2d 698, we clearly articulated the standard to be employed in reviewing an award of custody by the lower court. We do not 'consider the conclusion of the chancellor within the ambit of the clearly erroneous rule, Maryland Rule 1086.' We rather exercise our 'own sound judgment in determining whether the conclusion the chancellor reached was the best one.' Upon a thorough review of the entire record, it is our judgment that the conclusion reached by the chancellor was the best one.

Involved here is the interplay of two long-settled principles of law, and the question of whether those principles conflict or complement. The first, as enunciated in Hild v. Hild, 221 Md. 349, 357, 157 A.2d 442, 446, is that:

'Since the mother is the natural custodian of the young and immature, custody is ordinarily awarded t her, at least temporarily, in legal contests between parents when other things are equal, even when the father is without fault, provided the mother is a fit and proper person to have custody.'

See also 2 Nelson, Divorce and Annulment, Section 15.09 (2d ed., 1945); Kauten v. Kauten, 257 Md. 10, 261 A.2d 759; Oberlander v. Oberlander, 256 Md. 672, 261 A.2d 727; Cornwell v. Cornwell, 244 Md. 674, 224 A.2d 870; Palmer v. Palmer, 238 Md. 327, 207 A.2d 481; Sellman v. Sellman, 236 Md. 1, 202 A.2d 372; Wallis v. Wallis, 235 Md. 33, 200 A.2d 164; Parker v. Parker, 222 Md. 69, 158 A.2d 607; Oliver v. Oliver, 217 Md. 222, 140 A.2d 908; Roussey v. Roussey, 210 Md. 261, 123 A.2d 354; Townsend v. Townsend, 205 Md. 591, 109 A.2d 765; Trudeau v. Trudeau, 204 Md. 214, 103 A.2d 563; Porter v. Porter, 168 Md. 296, 177 A. 464; Barnett v. Barnett, 144 Md. 184, 125 A. 51; Levering v. Levering, 16 Md. 213; Mullinix v. Mullinix, 12 Md.App. 402, 278 A.2d 674; Widdoes v. Widdoes, 12 Md.App. 225, 278 A.2d 100; Myers v. Butler, 10 Md.App. 315, 270 A.2d 341.

The Wife seeks legal solace in the fact that Judge Prendergast referred to her as one who had been 'in the past a good mother to the children' and did not pronounce her 'unfit.' In view of the clear ruling of Judge Prendergast, amply supported by the evidence, that the Husband was better able to serve the interests of their children, the Wife makes too much of what appears to have been an obiter act of verbal generosity-a softening of the blow-a touch of judicial gallantry. Seizing upon the not unfavorable language, however, she urges that it brings her within the compass of 'a fit and proper person to have custody.' She looks to the principle as operating in a vacuum and urges the absolute proposition that a 'not unfit' mother should never be separated from her children.

The above-stated principle does not operate in a vacuum, however. It is correlative of and ancillary to another long-settled and, indeed, paramount principle, also enunciated in Hild v. Hild, supra, at 357, 157 A.2d at 446, to the effect that:

'. . . modern courts invariably hold that the best interests and welfare of the child should be primarily considered in making an award of custody.'

See also Hall v. Triche, 258 Md. 385, 386, 266 A.2d 20; Goldschmiedt v. Goldschmiedt, 258 Md. 22, 25, 265 A.2d 264; Krebs v. Krebs, 255 Md. 264, 266, 257 A.2d 428; Fanning v. Warfield, 252 Md. 18, 24, 248 A.2d 890; Shanbarker v. Dalton, 251 Md. 252, 257, 247 A.2d 278; Heaver v. Bradley, 244 Md. 233, 242, 223 A.2d 568; Snow v. Watson, 240 Md. 712, 713, 213 A.2d 748; Mullinix v. Mullinix, supra; Widdoes v. Widdoes, supra; Myers v. Butler, supra. That this is the paramount consideration is clear. 'Of course, it is too elementary to be stressed that the welfare of the child is the controlling test in a custody case.' Butler v. Perry, 210 Md. 332, 342, 123 A.2d 453, 458, citing Burns v. Bines, 189 Md. 157, 55 A.2d 487, 57 A.2d 188, and Stimis v. Stimis, 186 Md. 489, 47 A.2d 497. The superior role assigned to this criterion was well summarized in Sullivan v. Auslaender, supra, 12 Md.App. p. 3, n. 2, 276 A.2d p. 699:

'That securing the welfare and promoting the best interest of the child is decisive is emphasized by the various other ways reference is made to that 'clean and well defined' requirement. It was stated to be the 'paramount question' in Piotrowski v. State, 179 Md. 377, 381, 18 A.2d 199; the 'sole question' in Young v. Weaver, 185 Md. 328, 331, 44 A.2d 748; the 'paramount consideration' in Glick v. Glick, 232 Md. 244, 248, 192 A.2d 791; the 'determining factor' in Heaver v. Bradley, supra, 244 Md. at 242, 223 A.2d 568; the 'ultimate test' in Fanning v. Warfield, supra, 252 Md. at 24, 248 A.2d 890; 'of transcendent importance' in Dietrich v. Anderson, 185 Md. 103, 116, 43 A.2d 186.'

A surface reading of the Wife's argument would make it appear that these two principles of equity jurisprudence are in collision. They are not. The first principle is a statement of one of the weighty factors that needs be considered in the weighing operation contemplated by the second principle. The so-called 'preference' for the mother as the custodian particularly of younger children is simply a recognition by the law, as well as by the commonality of man, of the universal verity that the maternal tie is so primordial that it should not lightly be severed or attenuated. The appreciation of this visceral bond between mother and child will always be placed upon the balance scales and, all else being equal or nearly so, will tilt them. As heavy a factor as it may be, however, it is still but a factor. Every statement of the preference is hedged about by the context, 'all else being equal.' If, after giving due weight to the maternal preference, the scales nonetheless demonstrate the better suitability of the father or, indeed, of some third person to serve the interests of the child, the path for the chancellor is clearly indicated. The 'better interests' of the child is always the paramount consideration. In Nelson, Divorce and...