Levitsky v. Levitsky

• Decision Date: 07 May 1963
• Docket Number: No. 194,194
• Citation: 231 Md. 388,190 A.2d 621
• Parties: John M. LEVITSKY v. Billie Jean LEVITSKY.
• Court: Maryland Court of Appeals

Page 388

231 Md. 388

190 A.2d 621

John M. LEVITSKY v. Billie Jean LEVITSKY.

No. 194.

Court of Appeals of Maryland.

May 7, 1963.

George L. Clarke, Baltimore (George W. White, Jr., and Buckmaster, White, Mindel & Clarke, Baltimore, on the brief), for appellant.

William O. Goldstein, Baltimore, for appellee.

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

BRUNE, Chief Judge.

In this custody case the Circuit Court for Baltimore County by a decree entered May 11th, 1962, awarded custody of the three minor children of the parties to the mother, the respondent-appellee, subject to rights of the father, the complaint-appellant, to visit the children and to have them visit him 'at all reasonable times.' The decree further provided that the mother is required to 'give immediate notice to this Court, in writing, in the event any of the said children shall be admitted to a hospital for care or treatment of any kind.' The Circuit Court also retained continuing jurisdiction over the children, so that the Court, sua sponte, to on motion of the complainant, may require periodic reports by competent pediatricians, periodic reports of school attendance, achievement and adjustment, and such other information as may be reasonably required, to keep the Court informed of the welfare and progress of the children. The father appeals from the award of custody of the children to the mother and from the denial thereof to him.

The parties were married in 1949 immediately after the father's graduation from the Medical School of the University of Nebraska. The mother was a Registered Nurse. Following their marriage it appears that they lived in or near Chicago and that the children were born there, the eldest in July, 1951, the second in December, 1952, and the youngest in October, 1954. The older two, both girls, were thus aged ten and nine years, respectively, and the third, a boy, seven years, at the time of the hearing in January, 1962. When the parties were married both were members of the Roman Catholic faith. Dr. John M. Levitsky, the appellant, still is, though he is a very irregular attendant at church. In 1956 Mrs. Billie Jean Levitsky, the appellee, became interested in the religious group known as Jehovah's Witnesses, has embraced the doctrines of that group, and she has, we take it, ceased to be a Roman Catholic.

In June, 1959, Dr. Levitsky, having been appointed to a fellowship for some advanced study at the Johns Hopkins Hospital, moved with his family to Baltimore. The parties separated late in 1959. In March, 1960, the husband obtained a divorce in an Alabama court on a ground or grounds not shown in the instant case. The decree of divorce incorporated by reference an agreement and supplementary agreement dated March 1, 1960, between the parties which provided in part: (a) that the mother should have custody of the children during the months when they were required to attend school; (b) that during those months the father should have certain visiting privileges and the right to have them during a part of their holidays; (c) that he should have the right to have each child with him for four weeks in the summer; (d) that the mother should 'consult' the father 'with respect to all important decisions concerning the education, training and general welfare of the children;' and (e) that '[i]f either of the parties shall have knowledge of any illness, accident or other matter seriously affecting the well-being of any of the children, he or she, as the case may be, shall promptly notify the other and, except in emergencies, shall not take any action without consulting the other.'

Since the divorce the mother has continued to live in the Baltimore area and is a resident of Baltimore County. The children live with her and attend a public school in that county, where they have done very well, in spite of the fact that each of them missed twenty-two days of school in a single school year. Two nights a week, Tuesday from 7:30 to 8:30, and Friday, from 7:30 to 9:30, and Sunday afternoons from 4:00 to 6:00 o'clock, Mrs. Levitsky and the children attend services or meetings at the Jehovah's Witnesses' Kingdom Hall in Lutherville. This hall is about a five minutes' walk from their home. On Saturday mornings the children go 'on service' by selling tracts published by the sect, and at times they accompany their mother on door-to-door visits to other persons which she makes for religious purposes.

The father is now Associate Professor of Preventive Medicine at the University of Illinois. He lives in a house which he owns at Oak Park, a suburb of Chicago. His teaching obligations leave him a considerable amount of time when he can be at home, and he made arrangements under which his aunt would act as housekeeper and help to take care of the children, if custody were awarded to him.

There are in this case questions of the relative stability or instability of the parents, of the comparative desirability of the respective homes offered by them, and of lack of frankness in the testimony of each of them. There is also, of course, involved the problem of uprooting caused by a change in custody--a subject which we considered at some length in Winter v. Crowley, Md., 190 A.2d 87. All of these questions are overshadowed here by the question of whether or not the mother should be permitted to continue to have custody of these children in view of her refusal, because of her religious beliefs, to permit her son to have blood transfusions when competent medical doctors deemed such treatment essential to save his life, and because of her announced intention to adhere to the same view, if such a situation should again arise with regard to any of the children.

Judge Raine's opinion in the Circuit Court thus summarizes the facts which present this problem:

'The attack on her, as custodian of the children, centers on the facts that she is a Jehovah's Witness, and that because of her religious beliefs at least one of the children has been denied proper medical attention in the past, and that it is a probability, or at least a possibility, that prompt and adequate medical attention may be denied the children in the future. This contention by the husband is dramatically illustrated by recent events. On December 20, 1961, young Nicholas Levitsky was admitted to Mercy Hospital. It became quite obvious that he was hemorrhaging internally, and in the days following his admission his hemoglobin count sank to an alarming degree. Notwithstanding the advice and pleading of the competent physicians at Mercy Hospital the wife flatly refused to permit blood transfusions to be given to her son. The point was soon reached when the doctors advised the mother that the boy could die if blood transfusions were not administered. Notwithstanding this information Mrs. Levitsky signed a paper at the request of the hospital authorities, acknowledging that she was aware that her son might die, and in this document she reiterated her refusal to permit blood transfusions, and absolved the hospital from any responsibility for the death of the boy, which the Court finds as a fact would have inevitably occurred had not the hospital authorities taken other action. When the boy's condition became most critical the doctors were able to talk with the father by telephone, and he gave his permission for the necessary transfusion. At about the same time the hospital staff communicated with [the father's] attorneys [in Baltimore], who presented to Judge Jones of the Supreme Bench of Baltimore City a petition and order assuming jurisdiction over the infant, and authorizing Mercy Hospital to give the child transfusions. This order was signed promptly by Judge Jones, although it appears that, acting on the father's authority, the hospital began the transfusion process prior to the passage of the order. In any event, the transfusions were administered and the child immediately began to rally and was discharged from the hospital as cured on January 10, 1962.'

Judge Raine further stated that he would 'have no hesitancy in retaining these children in the care and custody of their mother, save for her unequivocal assertion from the witness stand, that, should the situation arise again, she would deny her children a blood transfusion even if the result of her action was swift and sudden death. The importance of this attitude, and the possibility of dire results that could stem from her inflexible adherence to her religious beliefs cannot be overlooked. Neverthless, the Court feels that the best interests of the children would be sreved by allowing them to remain with their mother.'

The trial judge in giving his reasons for his conclusion laid stress upon the school reports of the children and the impressions of their teachers therein reflected as showing that the children are intelligent, well behaved and well adjusted. The judge also discussed the change of impression of Dr. Manfred Guttmacher, a distinguished psychiatrist, as to the fitness of the mother to have the children, a change which was based largely upon Dr. Guttmacher's view that the mother's taking her children to a chiropractor for medical treatment indicated grossly defective judgment, in the light of her own training as a registered nurse. Judge Raine thought the premise erroneous. Though our reading of the testimony leads us to believe that there was a rather strong foundation for the premise, we do not believe that the situation with regard thereto was so serious as to be of controlling importance. We note that Dr. Guttmacher declined to rest his change of mind upon the mother's refusal to consent to blood transfusions for the desperately ill boy, which refusal was based upon her religious convictions. He apparently sought to keep clear of that issue. We cannot do so.

The testimony indicates that each of the parents has some neurotic difficulties. The trial judge spoke of the father's ...