Sullivan v. Auslaender

• Decision Date: 03 May 1971
• Docket Number: No. 532,532
• Citation: Sullivan v. Auslaender, 276 A.2d 698, 12 Md.App. 1 (Md. App. 1971)
• Parties: Marilyn Joy SULLIVAN v. Jakob AUSLAENDER.
• Court: Court of Special Appeals of Maryland

Page 1

12 Md.App. 1

276 A.2d 698

Marilyn Joy SULLIVAN v. Jakob AUSLAENDER.

No. 532.

Court of Special Appeals of Maryland.

May 3, 1971.

Kurt Belin, Washington, D. C., for appellant.

Monroe J. Mizel, Kensington, for appellee.

Argued before ORTH, THOMPSON and MORTON, JJ.

ORTH, Judge.

We are faced with the problem so often presented to courts of equity in domestic matters-what to do with minor children of a broken marriage. Difficult at best to come to a solution that seems satisfyingly wise and sound, the problem before us is intensified. The chancellor found each parent fit to be awarded custody ¹ as 'educated, intelligent people', concerned with the welfare of their son and daughter. He resolved the predicament by placing the care of the children in one and then the other. They are to spend three years in the custody of the father and the following three years in the custody of the mother. We must decide whether such disposition may properly stand in the light of the circumstances existent.

It was early enunciated, consistently followed, and recently affirmed that in the matter of custody the best interest and welfare of the child are determinative. See, for example, Hall v. Triche, 258 Md. 385, 386, 266 A.2d 20; Goldschmiedt v. Goldschmiedt, 258 Md. 22, 25, 265 A.2d 264; Krebs v. Krebs, 255 Md. 264, 266, 257 A.2d 428; Fanning v. Warfield, 252 Md. 18, 24, 248 A.2d 890; Shanbarker v. Dalton, 251 Md. 252, 257, 247 A.2d 278; Heaver v. Bradley, 244 Md. 233, 242, 223 A.2d 568; Snow v. Watson, 240 Md. 712, 713, 213 A.2d 748; 'Of course, it is too elementary to be stressed that the welfare of the child is the controlling test in a custody case.' Butler v. Perry, 210 Md. 332, 342, 123 A.2d 453, 458, citing Burns v. Bines, 189 Md. 157, 55 A.2d 487, and Stimis v. Stimis, 186 Md. 489, 47 A.2d 497. ² While it is pellucidly clear that proper custody is that which is best for the welfare, benefit and interest of the child, a question collateral thereto is the function of the appellate court in reviewing the custody award of the lower court. That is, must it consider the conclusion of the chancellor within the ambit of the clearly erroneous rule, Maryland Rule 1086, ³ or must it exercise its own sound judgment in determining whether the conclusion the chancellor reached was the best one.

Hammond, J., now Chief Judge, pointed out in Butler v. Perry, supra, at 340, 123 A.2d 450 and reiterated in Melton v. Connolly, 219 Md. 184, 188, 148 A.2d 387, 389, that the determination of the proper custody for the child usually does not turn on credibility or findings of fact, and 'Under such circumstances we feel we must exercise our best judgment in determining whether the conclusion the chancellor reached was the best one'-best, that is, for the welfare, benefit and interest of the child. This would apply, it is patent, when the facts are undisputed and plain. And it also would apply, we believe, when factual findings, required to be made, are made by the chancellor in such manner that he is not clearly erroneous. For we must accept the chancellor's factual findings and his view of the evidence if not clearly wrong, and, having so accepted them, we must exercise our best judgment, just as when the facts were undisputed, in determining whether the conclusion the chancellor reached on those facts was the best one. Thus the Court of Appeals said in the custody case of Burns v. Bines, supra: 'We accept the lower court's findings of fact and its view of the evidence, but we are unable to concur in its conclusion.' 189 Md. at 164, 55 A.2d at 490. See Ex Parte Frantum, 214 Md. 100, 105, 133 A.2d 408. So while we recognize the importance of the opportunity by the chancellor to see and hear the witnesses in custody cases and the reluctance of the Court of Appeals and this Court to disturb his findings of fact, we are not bound by the strictures of the clearly erroneous rule, but rather exercise our best judgment, in determining that 'ultimate' question of 'transcendent' and 'paramount' and 'controlling' importance, whether the conclusion of the chancellor was the best one for the welfare, benefit, and interest of the child. See Wilhelm v. Wilhelm, 214 Md. 80, 84, 133 A.2d 423; Trudeau v. Trudeau, 204 Md. 214, 103 A.2d 563; Cullotta v. Cullotta, 193 Md. 374, 66 A.2d 919. And see Winter v. Crowley, 231 Md. 323, 329, 190 A.2d 87 where the application of the clearly erroneous rule in that custody case was to factual findings of the lower court that the father was a fit person to have custody of the children and the mother was not. We note that the Court's holding that the third and determinative finding of the chancellor that it was to the best interests of the children to remain in the custody of the father was 'not to be disturbed on the evidence in the case.' At 330, 190 A.2d at 91. This holding was not within the clearly erroneous rule but implicitly an exercise of the Court's best judgment on the facts accepted. In Fanning v. Warfield, supra, the Court found the chancellor's decision as to custody 'unjustified on the facts and the law.' 252 Md. at 24, 248 A.2d at 894. Again we think it was a clear exercise of the Court's independent judgment on the matter without regard to the clearly erroneous rule. Cf. Hall v. Triche, supra, and Goldschmiedt v. Goldschmiedt, supra. In each of those cases the Court refers to Rule 886a but does not cite either Butler or Melton. And in each, its finding was that the chancellor did not err rather than he was not clearly erroneous. Further in Hall, the Court said: 'The matter (of custody) must be considered under Maryland Rule 886 a and our repeated references to the effect that the ultimate test in child custody cases is the best interest and welfare of the children.' (emphasis supplied). 258 Md. at 386, 266 A.2d at 20. We do not construe either Hall or Goldschmiedt as precluding us from exercising our best judgment as to the propriety of the conclusion of the chancellor with respect to custody as indicated by Butler and Melton, but rather merely refer the clearly erroneous rule to factual findings relevant to reaching that conclusion. We do not find Hall or Goldschmiedt necessarily inconsistent with our construction of our function.

There are two other rules to be considered by us here in exercising our best judgment whether the conclusion of the chancellor was the best one. The first is that the custody of children should not be disturbed unless there is some strong reason affecting the welfare of the children. Krebs v. Krebs, supra. 'To justify a change in custody, the change in conditions upon which it is based must be one affecting the welfare of the child and not of the parent. * * * 'Custody should usually be changed only where the interest of the child requires modification, where it appears advisable for the good of the child." (citations omitted). Winter v. Crowley, supra, at 331, 190 A.2d at 91. See Glick v. Glick, supra. The other is that the desire of an intelligent child who has reached the age of discretion should be given some consideration in determining custody, although the wish is not controlling. Radford v. Matczuk, 223 Md. 483, 491, 164 A.2d 904. 'The weight to be given the wish of a child in a custody case depends on the contribution the reasons for that wish make to the solution of the ultimate test, the best interests and welfare of the child. Ross v. Pick, 199 Md. 341, 86 A.2d 463.' Fanning v. Warfield, supra, at 24-25, 248 A.2d at 894.

The trial of the action on review before us was had in the Circuit Court for Montgomery County sitting as a Court of Equity. The evidence adduced is below summarized.

Jakob Auslaender, appellee, at the time of the trial resided in Haifa, Israel, employed as an engineer performing work of a confidential nature for the Department of Defense of the government of Israel. Born in Graz, Austria in 1929 he fled with his family to what is now Israel in 1938. At the age of 16 he left school and worked on a kibbutz for one year when he joined the sea branch of an underground commando force, first as a sailing instructor and later running guns. By the time he was discharged in 1950 Israel had been formed and the underground force had become an army. He worked as a merchant seaman until the end of 1951 when he went to the United States and enrolled in a secondary preparatory school 'for people like me who dropped out of school.' He received the equivalent of a high school diploma in September 1952, was admitted to M.I.T. and was graduated from that institution in 1956. After serving as a research assistant at the Institute for a year he went to work for the United States Navy at the David Taylor Model Basin in the Washington area and remained three years. He was then employed by Hydronautics, Inc. in Laurel, Maryland as a research scientist. For this work he had a confidential and later a secret clearance. In 1965 he went to Israel for a year and his next employment was in the United States from 1966 to 1969 with Operations Research, Inc. in Silver Spring, Maryland with the title of Senior Staff and a security clearance of top secret. He had met Marilyn Joy Sullivan, ⁴ appellant, in the summer of 1953 in Detroit where he was working for the summer. She came from 'a Jewish home'; ⁵ her father was a very well known member of the Jewish community in Detroit. They were married 6 June 1954 by a Jewish ceremonial wedding conducted by a Rabbi. Two children born of the marriage, Alan David on 27 October 1958 and Deborah Ruth on 10 March 1961, are the subject of these proceedings. The family went to Israel to settle in 1965 but returned to the United States in 1966. 'I think our marriage was beginning not to work out and I, at least, felt that we were headed for divorce. I thought about that a lot and I knew that if we got a divorce in Israel, I knew that the law there were such that I could keep the boy if I wanted to, and, in my opinion, children...