Robinson v. Robinson
Decision Date | 01 September 1992 |
Docket Number | No. 34,34 |
Citation | 328 Md. 507,615 A.2d 1190 |
Parties | , 61 USLW 2407 Timothy ROBINSON v. Deborah ROBINSON. , |
Court | Maryland Court of Appeals |
Joel Marc Abramson, (Harry B. Siegel, The Law Offices of Joel Marc Abramson, both on brief), Columbia, for appellant.
Lary Cook Larson (Charles Martinez, Eccleston and Wolf, all on brief), Baltimore, for appellee.
Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, McAULIFFE, CHASANOW, KARWACKI and ROBERT M. BELL, JJ.
We issued a writ of certiorari in this case to consider the following questions: whether under the circumstances the trial judge properly permitted a defendant in a child custody proceeding, who on cross-examination exercised her Fifth Amendment right against self-incrimination and refused to answer questions regarding her adultery, to testify as to her fitness to retain custody and to call others to do the same; what permissible inferences the court may draw from her silence; and the role adultery plays in the custody determination.
Timothy Robinson, the appellant, and Deborah Robinson, the appellee, were married on February 28, 1987, in Ellicott City, Maryland. Their only child, William James Robinson, was born on June 10, 1987. Except for a brief period after William's birth, both parties worked full-time pursuing their respective careers. Following a job change to Bell Atlantic Network Systems, Inc. in 1989, the appellee met Peter Johnson. Shortly thereafter, she and the appellant became dissatisfied with their marriage and, in January, 1990, they mutually agreed to separate. After finding an apartment, appellee moved out of the marital home on March 15, 1990.
From March 15, 1990, through October 8, 1990, the parties shared custody of William, who spent alternate weeks with each of them. A change in appellant's employment on the latter date required that he be away from home for extended periods during the week, and the parties agreed to change their custody arrangement for William. It was agreed that appellee would have custody of William during the week and one weekend each month with William staying with his father during three weekends each month. On June 20, 1991, appellee moved into a four bedroom house in Columbia which she rents jointly with her sister, Beth.
In October, 1990, appellee filed a complaint for limited divorce in the Circuit Court for Howard County, asserting the ground of mutual and voluntary separation. She also sought custody of William and child support from appellant. In his answer to the original complaint, appellant admitted that the separation was mutual and voluntary and that appellee was fit to have custody of their child, but he asked the court to award the parties joint custody of William. On June 11, 1991, appellee filed a supplemental complaint for absolute divorce, based on the couple's one year voluntary separation. She also sought permanent custody of William and child support from appellant. Answering the supplemental complaint, appellant denied that he had voluntarily separated from his wife and that she was a fit and proper person to have custody of their son. He also filed a counter-complaint, seeking an absolute divorce on grounds of desertion and adultery, custody of William, and child support from appellee.
When the case was called for trial on September 3, 1991, before Judge James B. Dudley, the parties advised the court that appellant had no objection to the divorce being granted to appellee on the ground of mutual and voluntary separation and that the only contested issues were the custody of William and child support. After a two day trial, Judge Dudley granted appellee an absolute divorce on the ground of voluntary separation, awarded her custody of William, and ordered appellant to pay $746.00 monthly in child support.
During the proceedings, appellant's counsel cross-examined appellee on her relationship with Peter Johnson, whom she had not mentioned in her testimony on direct examination. She refused to answer the questions, exercising her privilege under the Fifth Amendment of the United States Constitution against self-incrimination. The trial court sustained her privilege as to those questions relating to the period after September 3, 1990. The judge required her to answer for her activities prior to September 3, 1990, because the statute of limitations, Maryland Code , § 5-106 of the Courts and Judicial Proceedings Article, barred any prosecution of her for the misdemeanor of adultery 1 which occurred more than one year earlier. She admitted that she had engaged in sexual relations with Peter Johnson prior to September 3, 1990. During appellee's testimony on redirect examination and later, during the testimony of appellee's sister and her mother, appellant's counsel objected to questions regarding appellee's fitness for custody of William based on her prior invocation of the Fifth Amendment privilege. The court overruled the objections. The court also denied appellant's motion to strike appellee's testimony on direct examination as to her fitness to have custody of her son.
In a memorandum supporting his decision, Judge Dudley wrote:
Appellant timely filed an appeal to the Court of Special Appeals from the judgment entered by the trial court. We issued a writ of certiorari prior to consideration of the case by the intermediate appellate court.
The standard for appellate review in child custody cases was clarified by this Court in Davis v. Davis, 280 Md. 119, 372 A.2d 231 (1977):
Id. at 125-126, 372 A.2d at 234 (footnote omitted).
This Court further explained the Davis rule in Ross v. Hoffman, 280 Md. 172, 372 A.2d 582 (1977):
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