Stimis v. Stimis

• Citation: 47 A.2d 497,186 Md. 489
• Decision Date: 17 May 1946
• Docket Number: 135.
• Parties: STIMIS v. STIMIS.
• Court: Court of Appeals of Maryland

47 A.2d 497

186 Md. 489

STIMIS v. STIMIS.

No. 135.

Court of Appeals of Maryland

May 17, 1946

Appeal from Circuit Court for Anne Arundel County; James Clark Judge.

Suit for divorce by Agnes Stimis against Alvah R. Stimis wherein defendant filed a cross-bill and was granted a divorce a vinculo matrimonii. Custody of the minor child of the parties was awarded to complainant, but later on petition of defendant and cross-complainant, custody was awarded to him. From an order dismissing her petition for rescission of order awarding custody to cross-complainant and reaffirming such award of custody, complainant appeals.

Order affirmed.

Linwood L. Clark, of Annapolis, for appellee.

Before MARBURY, C.J. and DELAPLAINE, COLLINS, GRASON, and HENDERSON JJ.

COLLINS Judge.

This is an appeal by Agnes Stimis, hereinafter known as the appellant, from an order of the Circuit Court for Anne Arundel County dismissing her petition for the custody of her minor child, Robert Lee Stimis.

The appellant and the appellee, Alvah R. Stimis, were married in the year 1934 in Dorchester County, Maryland. Two children were born to this marriage, one having died. The other Robert Lee Stimis, was seven years old at the time of this appeal. The appellant is thirty-three years of age and the appellee is forty-eight years old.

The appellant, having moved to Anne Arundel County, on April 21 1944 filed a bill of complaint in that Court for a divorce a vinculo matrimonii from the appellee on the grounds of desertion. An answer and cross-bill was later filed by the appellee. In the cross-bill he alleged desertion and adultery on the part of the appellant. The appellant filed an answer denying the charges but offered no testimony at the hearing on the cross-bill. As a result of the hearing, at which no evidence of adultery was offered, the appellee here, on the 11th day of July, 1944 was granted a divorce a vinculo matrimonii from the appellant on the cross-bill. The custody of the infant child, Robert Lee Stimis, was awarded to the appellant, subject to the further order of the Court with the right to the appellee to see the child at all reasonable times. The appellee was ordered to pay the appellant $8 per month for the support of the infant child.

On September 25, 1944 the appellee filed a petition alleging that the appellant had gone to the State of Maine with one Joseph Cyr, her paramour, had taken the infant child with her, and the best interest of the child required that the custody by awarded to the appellee. After order nisi on this petition and no answer, on the 31st day of October, 1944 the custody of the infant child was awarded to the appellee, subject to further order of the Court by Judge Melvin. On September 19, 1945 a petition was filed by the appellant for the rescission of that order. After answer was filed to this petition by the appellee and testimony taken, on the 5th day of November, 1945 the Chancellor, Judge Clark, dismissed the petition of the appellant and reaffirmed the award of custody of the infant to the appellee, subject to the right of the appellant to see the infant at reasonable times. From that order the appellant appeals.

It is a well-known principle of law in this State that in cases involving the custody of a child, the sole question before the Court is the best interest of the child. Young v. Weaver, Md., 44 A.2d 748; Piotrowski v. State, etc., 179 Md. 377, 18 A.2d 199; Dietrich v. Anderson, Md., 43 A.2d 186; Cockerham v. Children's Aid, etc., Md., 43 A.2d 197. The question before this Court is therefore whether for the best interest of the minor child, Robert Lee Stimis, custody should be awarded the mother, the appellant, or the father, the appellee.

The parties to this cause were married in Dorchester County, Maryland, in 1934, and apparently lived there happily together for a time. Then Joseph Cyr, whom the appellant had met at a garage, came to board at the home of the parties to this suit. At that time the appellee was working at the Eastern Shore State Hospital making $40 per month and his board.

The appellant left her husband in January, 1940 claiming that he did not provide money enough for her support. Then she and her mother operated a dance hall and beer tavern near Cambridge, Maryland, where Joseph Cyr was employed as a 'bouncer'. The parties to this suit became reconciled in April, 1941, and lived together until August, 1941. Appellant then left the second time in August, 1941 and stayed away until Christmas Day of that year when she returned to her husband and lived with him for three days. Then on December 28, 1941 she told him to get out of the house as he was not giving her enough money. This resulted in the final separation of the parties.

Joseph Cyr moved early in 1942 to Anne Arundel County, near Severna Park, and obtained employment as a mechanic. He rented a furnished house and in March, 1942 the appellant moved with her son to this house and was installed as Cyr's housekeeper. Both the appellant and Cyr testified that Cyr paid her $5 a week and boarded her and the boy as compensation for being his housekeeper. There were two bedrooms in this house and the only people living there were the appellant and her son and Cyr. The appellee testified that he came from Dorchester County to Severna Park to see his son a number of times but that he only found him homme once. As hereinbefore stated, on April 21, 1944 the appellant filed a bill for divorce a vinculo matrimonii which resulted in the appellee obtaining the divorce. In September, 1944 the appellee visited the home in Severna Park where his wife formerly lived and found that all the belongings had been removed from the house and that no one was living there. He made inquiry at the post ofice for a...