Roussey v. Roussey, 167

• Decision Date: 13 June 1956
• Docket Number: No. 167,167
• Citation: 123 A.2d 354,210 Md. 261
• Parties: Elizabeth Ann ROUSSEY v. George A. ROUSSEY.
• Court: Maryland Court of Appeals

Page 261

210 Md. 261

123 A.2d 354

Elizabeth Ann ROUSSEY v. George A. ROUSSEY.

No. 167.

Court of Appeals of Maryland.

June 13, 1956.

A. Freeborn Brown, Belair, and William G. Kemp, Elkton (Edward D. E. Rollins, Elkton, on the brief), for appellant.

William S. James, Belair, for appellee.

Before BRUNE, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

HENDERSON, Judge.

This appeal and cross-appeal is from a decree of the Circuit Court for Harford County dismissing a husband's bill for divorce a mensa on the ground of desertion, and the wife's cross-bill on the ground of constructive desertion. Each complainant sought custody of the two children, but the court awarded custody of one child to each party, and ordered the husband to pay a counsel fee and arrears of alimony pendente lite.

The material facts may be briefly stated. The parties were married in New Jersey in 1947, and resided there until they moved to Maryland in 1954, where he went into the tree surgery business with his brother. Their married life was aptly characterized by the trial court as 'stormy and turbulent'. Their repeated quarrels and occasional separations all arose from trivial causes. If he was domineering and frugal, as she claimed, she was hot-tempered and disinclined to live within their means. He had been a Navy flyer and she had been the victim of an attack of polio. Neither was prepared to exercise that mutual restraint and consideration that a successful marriage requires. Nevertheless, a careful reading of the record discloses nothing that would afford legal justification for their final separation on December 27, 1954. They were visiting relatives in New Jersey, and a quarrel ensued because he would not go out with her in the evening, and she went without him in the company of his cousin and his wife, and spent the night at the home of this couple. On the following day, the parties went to see a lawyer, and afterwards he drove her to her mother's home, where she remained with the older boy, then aged seven, and he returned to Maryland with the younger boy, then aged three. There is a sharp conflict in the testimony as to whether he took the boy with her consent.

As the court said: 'Both of the parties testified that there was no possible hope or expectation of a reconciliation. The husband admitted that he no longer loved his wife and the wife frankly testified that she could not 'bear' her husband'. Neither party made any serious efforts at reconciliation. On January 2, 1955, and again on January 14, 1955, Mrs. Roussey came to Maryland and made unsuccessful efforts to obtain the younger boy. She then employed counsel in Elkton. He filed his bill on January 25, 1955, and her answer and cross-bill were filed on February 14, 1955. We find no error in the dismissal of both bills.

In dealing with the difficult problem of custody, the court found that each parent was able and willing to provide an adequate home for the children and give them the requisite care and affection. He felt, however, that the existing arrangement had certain advantages. He made the point that since the older boy was of school age and went to school with her sister's children, the wife was enabled to work during the day at a job that paid her $32. a week. She probably could not keep her job, if she had the care of the younger child as well. On the other hand, the husband was living with his mother, who though sixty-four years of age, was willing and able to take care of the younger boy during the day.

With due regard for the opinion of the court, we think the consideration mentioned should not outweigh the disadvantages incident to the separation of the children. The chief consideration is always, of course, the best interest of the children. Miller v. Miller, 191 Md. 396, 407, 62 A.2d 293. Unless the mother is an unfit person, she is usually preferred where the children are of tender years. Townsend v. Townsend, 205 Md. 591, 109 A.2d 765, and cases cited. In Miller v. Miller, supra, the Court was divided as to the fitness of the mother because of alleged past neglect. Judge Markell, in a vigorous dissenting opinion, ...