Raible v. Raible

• Decision Date: 27 May 1966
• Docket Number: No. 302,302
• Citation: 242 Md. 586,219 A.2d 777
• Parties: Charles G. RAIBLE v. Vera Helena Torres RAIBLE.
• Court: Maryland Court of Appeals

Page 586

242 Md. 586

219 A.2d 777

Charles G. RAIBLE v. Vera Helena Torres RAIBLE.

No. 302.

Court of Appeals of Maryland.

May 27, 1966.

Maurice C. Pincoffs, Jr., Baltimore, for appellant.

Samuel B. Groner, Silver Spring (Beverly Anne Groner, Silver Spring, on the brief), for appellee.

Before HAMMOND, HORNEY, OPPENHEIMER, BARNES and McWILLIAMS, JJ.

OPPENHEIMER, Judge.

This case involves the custody of two boys, now 13 and 12 years of age. The father, the appellant Charles G. Raible, and the wife, the appellee Vera Raible, were married in Bethesda, Maryland in 1951. They were divorced by a Florida court in February 1961. In June of that year the parties consented to a decree passed by the Florida court, under which their sons were awarded to the custody of the mother, with visitation rights to the father, including the right of the father to temporary custody for two months in the summer of each year. The consent decree also provided for a substantial payment to the wife, with alimony of $1000 a month and payments of $200 a month for support of each of the children. The father, who has a distinguished career as a Naval officer in both World Wars and is a man of great wealth, has remarried and lives in Lexington, Kentucky. The wife, born in Brazil, now lives with her mother and two children in Chevy Chase, Maryland.

In February 1964, the appellant brought suit against the appellee in the Circuit Court for Montgomery County praying that her custody of the boys be terminated and that the custody be awarded to him. The bill alleged immoral conduct on the part of the appellee which, the appellant claimed, rendered her unfit to have the children's custody. Voluminous testimony was taken in a six-day trial before Judge Anderson. The Judge analyzed the testimony and gave his conclusions in a comprehensive opinion in May 1965. He awarded the custody of the boys to the appellee, continued the appellant's rights of visitation, and ordered the appellant to pay arrearages in support, alimony and property settlement accrued under the Florida decree, and to provide security for the fulfilment of his obligations.

In this appeal, the father contends that the lower court was clearly wrong in continuing the custody of the children in the mother; that the court erred in admitting testimony relating to the lives of the parties prior to the Florida decree; and that the court did not have the power to make the appellant's rights of visitation dependent on his performance of the financial obligations imposed upon him by the decree. These contentions will be considered seriatim.

I

The appellee frankly and remorsefully admits that, after the divorce, she had an illicit affair from December 1961 to early in 1963. The Chancellor found as a fact, and, indeed, the appellant virtually concedes, that the relationship was terminated completely in the late spring of 1963 and has not been resumed. Since that time, there is voluminous and uncontradicted testimony that the appellee has led an exemplary life. She is now employed part-time at the Brazilian Embassy and the Chancellor noted that she and her mother have many friends, both in the Embassy and in the community.

Judge Anderson made findings of fact and gave his conclusions as to what seemed to be in the best interests of the children, with respect to their custody, as follows:

'The uncontradicted evidence discloses that the defendant has been a kind and affectionate mother to the children and that she loves them very much, and they in return love her. Even during the time that she and (her paramour) were carrying on an illicit relationship, the children were well cared for, and all of the testimony other than that of the plaintiff reveals that they are happy, normal little children who are well taken care of by their mother and grandmother.

'In this case the defendant is now 40 years of age. The children have been in her custody since birth, save for the visits they have made to their father in Lexington, Kentucky, since the divorce. These visits do not appear to have been too pleasant or too satisfactory. * * * While the defendant has sought to comply with the terms of the consent decree and arrange that the children visit with their father during the summer months, as therein provided, in the summer of 1963 the father, in defiance of the judgment and decree, refused to return the children to their mother, and even went so far as to secrete them from the Kentucky Court by placing them in a school in the State of Ohio, where the wife was compelled to obtain their custody through legal proceedings. He now seeks to have this Court take the children from the custody of their mother and award their custody to him because of an unfortunate affair engaged in by his former wife, the defendant, following the granting of the divorce when she was in a country other than that of her birth and without friends. The plaintiff is 67 years of age and is now married to his third wife. He is a man of great wealth and, without a doubt, can supply his children with every luxury. In his testimony he state that in his opinion the children need the strictest of discipline, and if they are awarded to him he plans to place them in a military school. From his testimony it would appear that the children would be away in school, both winter and summer, beginning with the coming summer, when he would send them to Culver Military Academy. When asked if he were awarded custody they (the children) would be away from home all the regular school year and every summer session and would be at home only at other times, he replied: 'Eventually that will be the case, as with all boys. I did the same thing. I went away summers.' He stated that that was his plan when they reach the ages of 13 and 14. While this Court realizes the desirability of children attending good private schools when their parents can afford it, the Court also realizes the desirability of children of their ages being raised in a normal home, where they will receive love and affection. The defendant offered in her behalf a number of substantial witnesses; all of whom testified that the home where the children were now living was a comfortable, modern home; that the children had excellent manners and that they were happy, nice little children being properly brought up. It would appear to this Court that the plaintiff chiefly desires these children to perpetuate his name and take the place of two sons by a former marriage who are now deceased.

'* * * Here, the testimony was taken before the Chancellor in open Court, and every opportunity was had by the Court to see and observe all of the witnesses. On one side you have love and affection; on the other side you have a vast preponderance of the material things of life in the form of great wealth. It is difficult for this Court to believe that if the plaintiff is awarded the custody of these children that they would receive the same love and affection that they now receive in their present home or that boarding school at their ages would be better for them than home life. The plaintiff testified that he felt it would be best for the children that the Court order them to be sent to boarding school where both parents could visit them at will rather than have them remain in the custody of their mother. At the time of the filing of the suit February 8, 1964, the children were 11 and 10 years of age. They would now be 12 and 11 years of age. Eventually, as they grow older, they should go to private school, if the plaintiff so desires, and later to college, at which time they themselves can decide which parent they prefer to live with. The children were not called upon to testify and the Court refused to talk to them privately in chambers on any matters regarding their custody, as both parties could not agree that this should be done. However, after the taking of all the testimony, the Court did, with the consent of the parties, have the children visit with him briefly, and found them to be happy, attractive and wholesome little boys, well dressed, with excellent manners.'

This Court has consistently emphasized the vital role of the Chancellor who hears a custody case; unless there is some reason to the contrary, his finding will not be disturbed. Andrews v. Andrews, 242 Md. 143, 154, 218 A.2d 194 (1966) and cases therein cited. In this case, the record amply supports the Chancellor's findings of fact and his conclusion.

No question of adultery is involved. The period of misconduct of the wife took place after her divorce and terminated two years before the hearing below. As Judge Hammond said for the Court in Trudeau v. Trudeau, 204 Md. 214, 218, 103 A.2d 563, 564 (1954), 'no custody matter is the image of another and in none can the proper paths be plotted automatically on a map of the principles laid down by the cases.' See also Daubert v. Daubert, 239 Md. 303, 308, 211 A.2d 323 (1965). The paramount, overriding consideration is the welfare of the children. In Trudeau, as here, the wife had ceased the conduct which was the basis for attack upon her fitness, and the conclusion of the Chancellor that the mother's custody of the children should be continued (subject, always, to the continuing jurisdiction of the court) was affirmed. We found in Trudeau, as we find here, that there was no compelling reason which made the continuation of the mother's custody not in the best interests of the children.

The appellant contends that the fact the appellee misconducted herself in the house in which the children were living of itself shows her unfitness as their custodian. That conduct might well have been determinative as of the time it took place, but the basis of the Chancellor's award is that the appellee has changed and is now a fit mother in every respect. As the Court pointed out in Trudeau, custody...