Piotrowski v. State on Application of Kowalek

• Decision Date: 19 February 1941
• Docket Number: 24.
• Citation: 18 A.2d 199,179 Md. 377
• Parties: PIOTROWSKI et ux. v. STATE, on Application of KOWALEK.
• Court: Maryland Court of Appeals

18 A.2d 199

179 Md. 377

PIOTROWSKI et ux. v. STATE, on Application of KOWALEK.

No. 24.

Court of Appeals of Maryland

February 19, 1941

Appeal from Baltimore Court of Common Pleas; J. Abner Sayler, Judge.

Habeas corpus proceeding by the State of Maryland, on application of Anthony A. Kowalek, against Charles E. Piotrowski and wife. From and adverse order, defendants appeal.

Order reversed and case remanded for an order in accordance with opinion.

Theodore R. McKeldin and M. William Adelson, both of Baltimore (Sidney M. Jacobs and Bernard Rosen, both of Baltimore, on the brief), for appellants.

Louis J. Jira and George P. Welzant, both of Baltimore, for appellee.

Argued before SLOAN, Acting C.J., and MITCHELL, JOHNSON, DELAPLAINE and COLLINS, JJ.

COLLINS Judge.

On the 11th day of July, 1940, Anthony A. Kowalek filed a petition for a writ of habeas corpus in the Court of Common Pleas of Baltimore City, alleging, among other things, that Vivian Joan Kowalek, his daughter, was restrained of her liberty by Charles E. Piotrowski, her grandfather, and Josephine Piotrowski, her grandmother. The writ was granted and after taking testimony in open court, on October 7, 1940, the custody of the child, Vivian, was ordered taken from the grandparents and given to her father, Anthony A. Kowalek, by the Judge below. The appeal is taken from that order.

Anthony Kowalek was married to Wanda Piotrowski, the daughter of the said Charles Piotrowski and Josephine Piotrowski, on October 29, 1930, and the child, Vivian, whose custody is now in dispute, was born to the said Anthony and Wanda in July 1932. Three or four weeks before December 4, 1932, on account of illness, Wanda Kowalek together with her daughter stayed at the home of her father and mother, the Piotrowskis, at 821 North Milton Avenue, but a few days before her death on December 4, 1932, asked to be taken to her home at 1919 East Lombard Street, where she died. The child, Vivian, continued to live with her grandparents, and has been living with them since she was about four months old. Anthony Kowalek testified that after the funeral of his wife he asked if he could live with the Piotrowskis, but that they refused his request. The father testified that he visited his child once or twice each week for the first two years, and contributed about three or four dollars per week for her support. There is a great deal of dispute as to the amount of contributions he made, and the frequency of his visits. Kowalek was the owner of the house on Milton Avenue where his father-in-law and mother-in-law lived. They paid no rent for this house but did make payments on the Building and Loan mortgage. Finally in 1933, the Piotrowskis being in arrears in the payments and in order to save his home, Anthony Kowalek requested the Piotrowskis to move, and they complied with the request. About eleven months after his first wife's death, Anthony married his second wife, Bertha, and they now have a child five years of age. In 1933, when the Piotrowskis removed from the Milton Street house, Kowalek with his wife and his son moved in that house, where they now reside. The balance owing on the mortgage is about Two Hundred ($200) Dollars at this time. After his second marriage, apparently the father visited his child less frequently. He testified that at those times he would give small sums of money. It also appears that Bertha, the wife, visited the Piotrowskis' home occasionally, but about the year 1935 trouble arose between the two families, and since that time, Kowalek has contributed very little if anything to his child's support. He states that he has not had the opportunity to see his child very often on account of this trouble. He further says that the reason he has not given more money to the child is because he could not see her. It appears from the record that he does have an insurance policy payable to his child, on which he pays ten cents a week and another insurance policy payable to his wife, Bertha, and child, Vivian. He testifies that at various times since his wife's death he has asked for the custody of his daughter but that this has been refused him. The Piotrowskis deny that he ever asked for the custody of Vivian. The record discloses that both families are of the same religious faith; the Kowaleks, appellee, attending church regularly, while the Piotrowskis, appellants, being members of the church, are not regular in church attendance.

The father, Anthony Kowalek, is forty-five years of age, served in the World War and received an honorable discharge, is a naturalized citizen, and since 1921 has been employed at Edgewood Arsenal where he received, at the time of the appeal, a salary of about Twelve Hundred ($1,200) Dollars a year. He is a well-behaved, industrious man, respected by his neighbors, and is interested in his dauther. His wife, Bertha, is thirty-four years of age, is well though of among her neighbors, and wants the custody granted to her husband. The Kowaleks occupy a first-floor apartment in their home, which is kept neatly and is in excellent condition. They have made arrangements that if the custody of Vivian is awarded to the father, they will then occupy the whole house. Their five-year-old child appears to be a well behaved boy.

Charles Piotrowski, the maternal grandfather, is fifty-six years of age, a naturalized citizen, is employed by the Park Board of Baltimore City, and earns an average salary of Thirty-six ($36) Dollars a week. He is well thought of by his employer stays at home, is greatly interested in his family and in his granddaughter, Vivian. The family who occupies his home, which is near the Kowalek home, consists of a son twenty years old, a daughter eighteen years of age, and a daughter seventeen years of age, some of whom are employed. The combined income of the family is about Sixty-three ($63) Dollars a week. The family is very desirous of keeping Vivian. His wife, Josephine, the maternal grandmother, who also occupies the home, is fifty-four years of age, interested in her family and exceptionally fond of her granddaughter, Vivian, and has given her granddaughter the care and affection of a mother. The child, Vivian, sleeps in a different bed,...