Parker v. Parker, 176

• Decision Date: 16 March 1960
• Docket Number: No. 176,176
• Citation: 222 Md. 69,158 A.2d 607
• Parties: Levin PARKER v. Evelyn P. PARKER.
• Court: Maryland Court of Appeals

Page 69

222 Md. 69

158 A.2d 607

Levin PARKER v. Evelyn P. PARKER.

No. 176.

Court of Appeals of Maryland.

March 16, 1960.

Theodore G. Bloom, Annapolis (Albert J. Goodman, Annapolis, on the brief), for appellant.

No brief and no appearance for appellee.

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

BRUNE, Chief Judge.

This case concerns the custody of the eight-year old son of divorced parents. The wife obtained a divorce on the ground of three years' voluntary separation and custody of the child was awarded to her, with rights of visitation to the father. The father appeals; there is no brief or appearance on behalf of the mother.

The evidence shows that the mother, Mrs. Parker, had lived in open adultery with the paramour, a Mr. Carmean, for a period of about a year and a half, but it is not shown that any intimate relations existed prior to the separation of the parties to this suit. ¹ The paramour was a married man, separated from his wife. In September, 1957, the appellee mother took the child here involved, Levin R. Parker, III (the only living child of the parties), to Florida with her. There she and Carmean lived together for three months in a tourist motel as husband and wife. Included in the group at the motel was Carmean's son, who is about four years older than Levin. In December, 1957, the appellee and Carmean returned to Maryland, and until February, 1959, they continued to live together at various places as husband and wife. At that time the appellee moved into her mother's apartment with the child, but without Carmean, and claims to have ceased cohabitation with him from that time up to the time of the trial. She testified she was in love with him and that she intended to marry him when she obtained a divorce. The paramour and his wife had been divorced about two years prior to the trial of this case.

It appears that the mother took generally good care of the child physically. She and Carmean joined a church in Anne Arundel County after returning to Maryland and about a year before the trial. The pastor of the church testified that he considered the mother a fit person to have the care and custody of the child and that he did so without any reservations. The mother claimed to be sorry for her misconduct, admitted that she had been wrong and declared her desire to have the child and to bring him up properly. She also said that she expected to go back to work. She offered no testimony as to plans for the care of the child while she might be away at work and he would be out of school.

The child has moved about as the mother has moved about, and her moves seem to have contributed to his rather frequent changes of school. His school attendance has been somewhat irregular and his school progress unsatisfactory. That appears to have been due in large measure to his emotional instability, and he is described as nervous and upset. Both the principal of his school and his teacher have been concerned about the boy. His teacher wrote this as a summary following a conference with the boy's mother: 'I have my doubts about too much effort by Mrs. Parker to help Levin. Her personal life is too complicated, and she is really more interested in her life than the well being of her child. She and Mr. Parker are separated. Child spends some time with both parents. I believe this is the biggest factor in child's problem.'

There was also evidence that the child had said that while he was in the custody of the mother he frequently went to bed late at night, including school nights. His uncle, a brother of his father, testified to an incident of this sort at the movies in February, 1959. On this occasion, the mother and Carmean had taken both Carmean's son and yound Levin to the movies on a school night. Levin went over to his uncle, got in his lap and went to sleep. The uncle left the movie at about 11:15; the boy was still there.

The father, aged 31, has been an employee of the Post Office Department for over ten years. The Chancellor commented that the testimony 'tends to prove that the husband's conduct and reputation have been good which cannot be said about the wife.' The father, too, is a church member and he has taken the boy to Sunday school each Sunday when the boy has been with him. The father lives with his parents, who would be quite willing to have the boy live with them, too. The testimony indicates, and the Chancellor found, that the boy would perhaps have a higher standard of living if custody were awarded to the father.

The boy himself was questioned as to his feelings towards his parents and his preference. In substance he testified that he loved each of his parents and that he would prefer to live with his mother. He also said that he loved his father's parents and that he liked Mr. Carmean.

There was testimony, not contradicted, by the father's brother that the boy had told him he did not get along well with Carmean's son--that he did not like him and that they fought. There was also testimony, likewise not contradicted, by the father, his brother and his mother to the effect that the boy was always very much upset when a visit to his father would come to an end and the time would come for him to be returned to his mother.

The Chancellor stated that he had observed the demeanor and carefully considered the testimony of all the witnesses, that he did not believe the then Mrs. Parker to be grossly immoral, but that she was sincerely repentant and would be a loving and devoted mother, and that the child (not then eight years old) needed 'this devoted care.' He added that if it should prove that the court was mistaken as to the mother's future conduct, the decree as to the child might be annulled, varied or modified at any time. After stating that materially the child might be better off with the father and observing that 'experience has proven that many of our outstanding men lived a lean boyhood,' he concluded his opinion with this sentence: 'In my opinion, the stability and welfare of this child requires me not to change the guardianship and custody from the mother.'

The problems presented by this case have been so fully considered in the case of Hild v. Hild, 221 Md. ----, 157 A.2d 442, which was decided by this Court a few months after the Chancellor's decision in the present case, that any extended...