Miller v. Miller

• Decision Date: 11 November 1948
• Docket Number: 9.
• Citation: 62 A.2d 293,191 Md. 396
• Parties: MILLER v. MILLER.
• Court: Maryland Court of Appeals

62 A.2d 293

191 Md. 396

MILLER v. MILLER.

No. 9.

Court of Appeals of Maryland

November 11, 1948

Rehearing Denied Nov. 19, 1948.

Appeal from Circuit Court No. 2 of Baltimore City; E. Paul Mason Judge.

Suit by Harry E. Miller, Jr., against Eileen W. Miller for divorce and to enjoin the defendant from removing a child of the parties from the plaintiff's custody, wherein the defendant filed a cross-bill for divorce. From a decree in favor of the plaintiff, the defendant appeals.

Decree affirmed.

MARKELL and HENDERSON, JJ., dissenting.

Hyman Ginsberg, of Baltimore (Ginsberg & Ginsberg, of Baltimore, on the brief), for appellant.

Helen Elizabeth Brown, of Baltimore, for appellee.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, HENDERSON, and MARKELL, JJ.

COLLINS Judge.

On October 6, 1947, Harry Miller, Jr., appellee, filed against his wife, Eileen W. Miller, appellant, a bill for a divorce a mensa et thoro; for the custody of their child, Joyce Anne Miller, who was born October 4, 1945; and for an injunction restraining her from removing the child, Joyce, from his custody. An answer was filed to that bill by the appellant denying the material allegations therein. On November 7 1947, the appellant filed a cross-bill praying a divorce a mensa et thoro, the care and custody of the child, alimony pendente lite, permanent alimony, support for the infant child, counsel fees and costs of suit.

After hearing in open court the chancellor signed a decree granting a divorce a mensa et thoro to Harry Miller, Jr., appellee awarding him the custody of the infant child, with the privilege to the mother to visit the child in the home of the appellee on Saturday afternoons of each week between the hours of 1 P.M. and 5 P.M., subject to further order of the court; and dismissing the cross-bill. From that decree the appellant appeals.

The parties to this suit were married in Baltimore on March 14, 1945. At that time the husband was twenty-six years of age and the wife twenty-five. Her home was in Jamaica, New York. She had attended the University of Alabama for three and one-half years and also had taken courses at Hunter College in New York. He was graduated from high school and has been honorably discharged from the United States Navy. Before entering the Navy he had been employed as a welder.

The parties knew each other about six months prior to marriage. After the marriage the husband and wife left Baltimore so he could attend the University of Tennessee at Nashville under the Act popularly called the 'GI Bill of Rights.' 38 U.S.C.A. § 693 et seq. There they occupied one room with bath at the time the child was born. At birth the child was of normal weight but had 'a form of club feet.' She developed an abscess, had pneumonia, and lost weight. The appellee was not very successful in his studies at the University. After consulting his father and mother and receiving permission from them to come to their home in Baltimore, the parties to this suit left Tennessee on December 17, 1945, and moved with the baby to the home of the appellee's parents. At his parents' home they had a room for themselves and the baby, and food. They paid his parents $15 per week. When the baby arrived in Baltimore she was sickly and very thin. A doctor was called and the child was found to be far from well. Her health improved materially while in the home of her paternal grandparents. The husband obtained a position driving a Yellow Cab which paid him between $45 and $55 a week.

In June, 1947, in addition to driving the taxicab he started a course in an automobile mechanics school, also under the 'GI Bill of Rights.' The wife admitted that in the appellee's parents' home she was always treated 'very nice.' She further said: 'I guess I did not act grateful, because I did not feel grateful.' She wanted a home of her own. She admits that the child became fat and healthy there. She says that her mother-in-law 'loved' to take care of the baby.

The wife obtained a position with the Social Security Organization in June, 1947, at a salary of about $32 per week. She worked from 4 P.M. until 12:30 A.M. After working she went out with employees of the office and often did not return home until two or three o'clock in the morning. While working with the Social Security she became acquainted with a man, Henry E. Yanus, who worked there, and who would take her to taverns where they would drink and eat until about two o'clock in the morning when the tavern closed. Her husband seriously objected to this association with Yanus. The husband testified that his wife often came home intoxicated. Yanus testified that he drank with her several evenings after work.

The husband testified that he made every effort to locate an apartment but was unable to do so. The rent was either too high or the places found were not suitable for his wife and baby. He went to the Baltimore Housing Authority, answered advertisements in the newspapers, and made an application for a 'GI loan' to buy a home. Apparently the wife made little effort to find another place to live. She said that she told her husband about a week before September 12, 1947, that she was 'tired' of staying with his parents and that she was going to leave.

On Friday night, September 12, 1947, the appellant came home from work about 3 A.M. and found the screen door locked. Her father-in-law testified that unfortunately when he went to bed the front door was open and the screen door was latched. He left the light lit and closed the front door but forgot to unlatch the screen. He said the next morning, before he left to go to work, he joked with Eileen about this and she knew that he did not intentionally lock her out.

The appellant testified that without her husband's knowledge she resigned her position about September 10, 1947, and left the Social Security on September 12th. That night after work, because it was her last night there, some of the employees took her to a tavern. At the party the employees gave her a gift. When she reached home about 2:30 A.M. the screen door was locked and she did not want to make a disturbance. The door bell was between the screen door and the big door. She went to a neighbor's house and spent the night. The next morning she returned home, packed a suitcase with some of the baby's and her clothes and carried the suitcase to the neighbor's house. No one in the Miller family saw her do this or knew she was planning to leave. She told her husband that morning that she intended to take the baby to see some friends for lunch, and she would meet him home about three o'clock and they would go to the 'movies' that evening. About 12 o'clock that day she left the house with the baby and with a paper bag, without any of the Miller family seeing her, and went to the neighbor's house where she picked up her suitcase, called a taxicab, stopped for Henry Yanus and went with him to the railroad station and she took the train to New York. Yanus did not go to New York with her. Yanus testified that she had previously told him she was making plans to leave for New York and was packing 'on the sly so no one could see it so she could sneak off that morning. * * * She said she was going to New York to stay.' That afternoon she called her husband on the telephone and said: 'Surprise, I am in New York.' She said she did not tell him before because she thought he would prevent her leaving. She admitted that her husband gave her no cause to leave and she left because he did not 'make her happy.' He said that in the telephone conversation she told him she was going to stay in New York and keep the baby. He also said she told him: 'not to bother to come there to see the baby because her father wouldn't let me near the house.' He was very surprised about this. He called his wife again the same day and arranged to meet her in New York the next day, September 14, 1947. She met him at the subway station. The wife testified that she wanted her husband to get a position in New York. She admitted, however, that when he came up to see her he had no idea of getting a position at that time because he was supposed to finish the mechanical school first. She said she was definitely through with him and intended to keep the baby. He saw Joyce at her parents' home for a few minutes. He says her parents' home is a small four room row house and her father does not like children and her mother thinks the baby would be too much trouble for her.

The appellee testified further that while he was in New York that Sunday his wife told him when she and his mother were in New York the previous Labor Day, she talked with her father and mother about leaving him and her father was in full accord. While he was there on September 14, 1947, he said his wife told him: 'If I wanted to get the things started again, and I wanted to prove to her father that I was the right type, and all like that, why not write some letters, go all out, so that her father could read them and see that I was trying to do the right thing, and so forth, for her. So I went home and I went all out.' He wrote her two letters in order to 'smooth things over and help her to come back on the baby's birthday.' In one of the letters he wrote to her he stated he was glad that he was going to get another chance with her.

The appellee returned to New York the following Saturday, went to the appellant's parents' home, found the grandmother in the house, and the two year old child playing in the dirt in the street in front of the house and sitting on the curbstone near 'traffic.' The appellant was attending a moving picture show. The appellee objected to the child being outside in the street, playing in the dirt, without supervision.

On October 4th, the child's...