Oliver v. Oliver

• Decision Date: 29 April 1958
• Docket Number: No. 197,197
• Citation: 217 Md. 222,140 A.2d 908
• Parties: Thomas F. OLIVER v. Betty Adams OLIVER.
• Court: Maryland Court of Appeals

Page 222

217 Md. 222

140 A.2d 908

Thomas F. OLIVER v. Betty Adams OLIVER.

No. 197.

Court of Appeals of Maryland.

April 29, 1958.

Dissenting Opinion May 6, 1958.

James C. Christopher and John C. Keating, Bethesda, for appellant.

James H. Pugh, Rockville, for appellee.

Before HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ., and JAMES MACGILL, J., Specially Assigned.

HORNEY, Judge.

Thomas F. Oliver (the husband or the father) filed a bill in the Circuit Court for Montgomery County (Anderson, J.) against Betty Adams Oliver (the wife or the mother) for a divorce a vinculo matrimonii on the grounds of abandonment and adultery, and for the custody of their three year old daughter (the child or the daughter). The testimony was taken by an examiner, and after argument, the chancellor granted the husband an absolute divorce for abandonment, but not for adultery, and awarded custody of the child to the wife, with limited visitation rights to the husband. The husband appealed from the final decree, insisting (i) that there was sufficient evidence to prove adultery, and (ii) that he was entitled to custody of the child.

The parties were married in 1950 and lived together, not entirely harmoniously, until November of 1954, when the wife removed to the home of her mother in Virginia. She took with her the child, who had been born in 1953. The separation was continuous and uninterrupted until the time testimony was taken in 1957, although the husband had made several abortive attempts at reconciliation.

Both the husband and wife had been employees of the federal government. In 1952 the wife became acquainted with Taylor Potter (Potter), a fellow employee, by sharing in a car pool. For awhile the husband saw no reason to object to his wife's friendship with Potter. However, after the Olivers separated at the end of 1954, the husband learned that Potter was making frequent visits to his wife at her mother's home. In January of 1955 the wife and child moved into an apartment in Wheaton, Maryland. Although the husband continued to visit them, relations between the parties reached their lowest point in November of 1955 when the wife filed suit for a divorce in Virginia, to which the husband interposed a successful defense. In the meantime, Potter's wife had died and he became a more frequent visitor at the wife's apartment.

At this point, the wife and Potter became involved in a companionship which was not consistent with a normal friendship between a virtuous woman and a continent man. The husband hired a detective to keep the apartment of his wife under constant surveillance. During March and April of 1956 the detective, his assistant, and the husband often sat in a parked car and watched Potter enter and leave the wife's apartment. One evening, when Potter went to the apartment, the lights went out at about nine o'clock in the evening, and Potter did not leave until after midnight. On another occasion Potter stayed until three-thirty in the morning. By using binoculars, the detectives saw Potter and the wife hugging and kissing in a car. The wife's maid testified that Potter had come to the apartment many times, and had been in the wife's bedroom once when he was not fully clothed. The child began to refer to Potter as 'Daddy Taylor,' often speaking of 'Daddy Taylor's pillow' on the wife's bed, and 'Daddy Taylor's toothbrush.'

Potter and the wife denied all of the above allegations. Potter, who had moved to Michigan several months before the trial, admitted that he had been to the wife's apartment, but only infrequently, and never when the lights were out. He denied any sexual intimacies with her, describing his relationship as being more of an 'older brother' to her. When asked if he had ever kissed the wife, he replied, 'No, not that I recall, * * * [except] if I pecked her on the cheek or something I probably would not have recalled it.' Because he had moved away, he had seen her only once or twice in the eight months preceding the taking of the testimony--when he had come to Washington on business.

On the issue of the custody of the child, the father contends that the court erred in awarding the daughter to the mother. He insists that because the mother had been guilty of adultery, and because the child had been compelled to live in the same house with the wife and her paramour, he (the father) should have been awarded the custody of the daughter. On the other hand, most of the witnesses believed that the wife was a fit and proper person to have custody of the child. One witness thought the wife was a considerate and loving mother. Another thought that she was 'a model mother, * * * dependable, trustworthy, * * * an excellent mother with an understanding of child development.' Because the mother had once been a teacher, it was believed that 'her training as a teacher helps.' Even one of the husband's witnesses, the wife's maid, thought that the wife was a very good mother and would be a proper person to rear the child. Except for the husband's own testimony, there is no evidence in regard to his fitness and ability to take care of and provide for the daughter if he were awarded custody. But there is nothing to indicate that he is not also a fit and proper person to have such custody, although he offered no definite plan for the care of the child.

The husband elected to sue his wife by joining in one action two independent claims or causes for an absolute divorce--abandonment and adultery--pursuant to Maryland Rule 313, subd. a (Joinder of Claims). The chancellor declined to grant the divorce on the ground of adultery because he was not 'convinced beyond a reasonable doubt that the charge of adultery * * * [had] been proven,' and granted the divorce on the ground of abandonment because 'the evidence * * * [was] clear and convincing that the * * * [wife] abandoned and deserted the * * * [husband].' While we do not agree that adultery must be proven 'beyond a reasonable doubt,' ¹ we are unable to say that the chancellor was clearly wrong in granting the divorce on the ground of abandonment instead of adultery. Moreover, we think the question is unimportant in this case. The real question here is the custody of the child, and a determination of that question does not necessarily depend on the ground for divorce which entitled the husband to a decree. In this case, as in all other cases concerning the custody of children, it is generally the best interests of the child which determine the award of custody.

Even if we assume that the wife did commit adultery, as the evidence in this case appears to indicate, the result so far as present custody is concerned would be the same. In making an award of custody, a court must necessarily take into consideration all of the evidence bearing on the question. The law on the subject is clear. It is the application of the law to the facts in each case that is difficult.

In divorce cases, courts are inclined to award the custody of minor children to the innocent party, but it does not follow as a matter of course that the plaintiff in a divorce action is entitled to custody. The question is within the sound discretion of the chancellor. If, for instance, the child is so young or in such condition of health as to need the care of a mother, particularly if the child is a girl, custody is ordinarily awarded to the mother, at least temporarily, even if the father is without fault. Madden, Persons and Domestic Relations (1931), 377-78. And there is no absolute rule that one who has committed adultery is morally unfit to have custody of a child. The circumstances in a particular case may justify awarding a minor child to a parent who has committed adultery. The guilt of a wife may even be overlooked where she is not grossly immoral. 2 Nelson, Divorce and Annulment (2d ed. 1945), Sec. 15.06.

In Swoyer v. Swoyer, 1929, 157 Md. 18, 145 A. 190, 196, a leading case is Maryland, there is an elaborate discussion of the many considerations involved in a child custody proceeding where the wife is guilty of adultery. In that case the custody of the children was awarded to the husband pending further order of the court, even though he was a steady drinker, had no fixed place of abode, and was away on business much of the time, and the wife had been a careful and attentive mother. But, as was therein suggested, no hard and fast rule can be drawn to govern cases of this kind. The welfare and best interests of the children must govern 'even though that involves awarding their custody to the parent whose misconduct is the cause of the divorce.' Although the husband's character was not beyond reproach, he was awarded custody because, among other things, the wife had continued the adulterous relationship with her paramour until the case was heard.

That the cessation of the adulterous relationship is an important factor is illustrated in Pekar v. Pekar, 1947, 188 Md. 360, 52 A.2d 468, where the decree granted the husband a divorce for the wife's adultery and awarded him the custody of their eight year old son. The decree was affirmed, primarily because the wife had continued to live with the paramour. In Pangle v. Pangle, 1919, 134 Md. 166, 106 A. 337, 338, another case demonstrating the reluctance of this Court to award custody to an adulteress while the paramour still dominates the scene, the wife's adultery resulted in the grant of a divorce to the husband, and an award of the custody of their five year old daughter. Two weeks later, the wife married her paramour, and a few months after that marriage, she petitioned the court for the custody of the child. We denied her custody, saying: 'Having lost his wife through her misconduct, he ought not to be deprived of the custody of his daughter and subjected to the humiliation of surrendering her to the support and control of the author of this marital misfortune.' (Emphasis added.)

Another case illustrating the significance of the cessation...