Sellman v. Sellman, 424

• Citation: 236 Md. 1,202 A.2d 372
• Decision Date: 13 July 1964
• Docket Number: No. 424,424
• Parties: Francis O'Donald SELLMAN v. Estella Mae SELLMAN.
• Court: Court of Appeals of Maryland

Page 1

236 Md. 1

202 A.2d 372

Francis O'Donald SELLMAN v. Estella Mae SELLMAN.

No. 424.

Court of Appeals of Maryland.

July 13, 1964.

Hilary W. Costello, Washington, D. C., for appellant.

Wallace Dann, Baltimore (Howard Calvert Bregel and Calvert, Ross Bregel, Baltimore, on the brief), for appellee.

Before BRUNE, C. J., HAMMOND, PRESCOTT and HORNEY, JJ., and IRVINE H. RUTLEDGE, Special Judge.

PRESCOTT, Judge.

The chancellor granted the appellee a limited divorce on the ground of desertion, permanent alimony and custody of, and support for, an infant child of the parties. At the same time, he dismissed appellant's cross-bill, which prayed for a limited divorce on the ground of desertion, and custody of the child.

The appellant claims that the chancellor committed error in seventeen rulings on evidence and seven other alleged assignments of error. However, the case may be determined by answering the following questions: (1) Was the chancellor clearly in error in finding that the appellant deserted the appellee on, or about, July 10, 1962, and that, under the circumstances, the appellee should be awarded custody of the infant child; (2) Did the chancellor commit prejudicial error in holding an alleged 'secret' conference at the bench; (3) Did the chancellor commit reversible error in denying appellant's motion for a mistrial; (4) Did the chancellor's rulings on the evidence constitute reversible error?

I

Since the record extract contains 309 pages, it will have to be scaled down considerably in stating the facts, if this opinion is to be of reasonable length. Although the testimony in most of its aspects is sharply in dispute, it is fufficient to support a finding of the following facts. The parties were married in Baltimore in 1936. Three daughters were born as a result thereof. The oldest is married and has her own family. The next in point of age was nineteen at the time of the trial below, was self-supporting, and was living with her mother. The youngest, Gwenda, was eight, and she was enrolled in a boarding school for girls.

After marriage, the conjugal relations of the parties were satisfactory until about nine years ago, when they began to deteriorate. The husband became interested in another woman. He told his wife that he was 'very much' in love with this woman, but he loved her (his wife) more than the other woman. She forgave her husband for his relationship with this woman because she wanted to keep the family together and raise her children. However, the husband started on a course of conduct, which finally culminated in his locking her out of the house. The wife stated that when Gwenda was a baby, her husband, who had been drinking, came home, and, without provocation, shoved her and threw her on the bed. She retreated through the house from room to room, but he followed her. She finally wound up in the living room and was sitting in a chair, but he came in and upset the chair, knocking her to the floor. She took the child and left home. However, upon the request of her pastor and the entreaties of her husband, who promised to mend his ways, she returned to the home.

Things were better for a while; then he started 'getting very nasty again.' The wife testified that he threatened her, kicked and struck her, and threw things at her. He also called her vile and humiliating names. On one occasion, he took a gun and 'fired it off' in the house. In 1961, he told her to get 'the H. out of' his bedroom, and she did. On another occasion, she had been visiting her 'people,' and which they brought her home her husband would not open the door; so she was required to spend the night away from home. When she returned on the following morning, she gained entrance by letting Gwenda climb in a window. She testified that his attitude, manner and course of conduct caused her to fear for Gwenda's and her own safety.

On the evening of July 10, 1962, the appellee went to a neighbor's house across the street to call her married daughter on the telephone. The appellant came out into the street and yelled, 'Stella Mae [the appellee], come over here and get your G.D. dishes done.' Realizing that her husband usually left home each evening at about 7:00 p. m., she waited until he had driven off in his automobile before returning home. After seeing him leave, she returned and was washing dishes when the appellant came home. He went to the kitchen, and 'he knocked me [the appellee] down so hard that my back struck the step stool and my arm and bruised it.' After getting back onto her feet, she again went to the neighbor's home across the street, and the neighbor saw the bruises. Later that evening she returned to the home and remained there until July 16th.

On July 16th appellant came home in a very 'nasty mood.' Nothing seemed to please him. He told his wife that 'things weren't going to be any better.' 'If anything they were going to get worse.' When he continued his harassment, she went out on the porch and sat down. He continued to make disagreeable comments through the window. Finally she walked down to the corner store to purchase an item. On the way home, she saw Gwenda get a good humor from the good humor man and go back into the house. Upon her arrival at the home, she found all of the lights out and the doors locked. She rapped on the door and rang the bell, but received no response. She phoned her parents, who came and took her to their home. This suit followed.

The chancellor likened the testimony herein to that in the case of Cullotta v. Cullotta, 193 Md. 374, 66 A.2d 919, and found that 'the husband had pursued a policy of abuse and misconduct towards his wife, which made it impossible for her to continue her matrimonial cohabitation with him with safety and self-respect.' He further found that: 'she forgave him conditionally for his many abuses and indignities which he heaped upon her * * *. Finally, on July 10, 1962, she testified he attacked her so brutally that from that time on she was in great fear of him, and on July 16, 1962, after he had gone into another of his tantrums and locked her out of the house, she was afraid to attempt to force an entry into the house.' The case obviously turns upon questions of fact, and we cannot say the chancellor was clearly in error in these findings; hence we shall affirm his granting the wife a divorce. Maryland Rule 886(a). See also Hilbert v. Hilbert, 168 Md. 364, 177 A. 914, 98 A.L.R. 1347, and compare Sullivan v. Sullivan, 223 Md. 74, 162 A.2d 453.

We turn now to a consideration of Gwenda's custody. We have repeatedly stated that the principal question to be determined in child custody cases is what will subserve the best interests of the child involved. The chancellor seems to have given very careful attention to the matter of custody, obtaining reports from the medical and probation officers of the court. The husband contends that the wife failed to keep a tidy house, and is illiterate, not keeping up with ordinary, everyday events, such as what day of the week is at hand, or how many days there are in a year, etc. The medical officer found that the wife had an I.Q. at the upper end of the borderline range, and he found the patient 'anxious, confused, labile, and rather unstable.' However, he found 'no psychiatric contraindications for Mrs. Sellman to have custody' of the child. In his opinion, the chancellor stated that the wife presented herself as a pleasant person, and 'as reported by the Staff of Dr....