Swain v. Swain

• Decision Date: 16 October 1979
• Docket Number: No. 83,83
• Citation: 406 A.2d 680,43 Md.App. 622
• Parties: Robert William SWAIN, Jr. v. Nancy Diann SWAIN.
• Court: Court of Special Appeals of Maryland

Page 622

43 Md.App. 622

406 A.2d 680

Robert William SWAIN, Jr. v. Nancy Diann SWAIN.

No. 83.

Court of Special Appeals of Maryland.

Oct. 16, 1979.

Paul R. Wiesenfeld, Rockville, for appellant.

Roger K. Bain, Silver Spring, with whom were Wheeler & Korpeck, Silver Spring, on the brief, for appellee.

Argued before THOMPSON, MOYLAN and MacDANIEL, JJ.

MacDANIEL, Judge.

This appeal is from the child custody portion of a divorce decree entered on December 15, 1978, by the Circuit Court for Montgomery County. On that date, Robert William Swain, Jr., the appellant, was awarded a divorce A vinculo matrimonii from Nancy Diann Swain, the appellee, based on the appellee's adultery. The appellee's Bill of Complaint seeking a divorce A mensa et thoro was denied. Earlier, on December 30, 1977, custody of the minor child, Karen L. Swain, had been awarded, Pendente lite, to Mrs. Swain. The December 15, 1978, decree awarded permanent custody to Mrs. Swain.

The present case was tried on October 4, 5, 6 and December 6, 1978. In his opinion the chancellor stated:

"The evidence in the case establishes with critical clarity that Nancy Swain has committed adultery. This is proven from the evidence and acknowledged by her from the witness stand.

The Court will state at the outset that were it not for the adultery of the mother it would have no difficulty in making a determination that custody of the minor child of the parties should be awarded to the mother. She has had custody of the child from the time of the separation of the parties to the present time except for a period in which, contrary to an Order of this Court by another Judge, custody was taken into his own hands by the father and retained for some two and a half months. It seems quite plain and clear to the Court that the conduct of the mother towards the child has been that of a loving parent. It seems also to the Court that the conduct of the father towards the child has been that of a loving father. . . . The Court is persuaded that the mother of the child has done nothing to alienate the child from the father. The record seems to justify the conclusion that the Court makes that on the other hand the father has followed a course of action that he coldly calculated, may opt to separate the affection of the child from the mother.

In such circumstances, it would be hard to conclude otherwise than that custody of the child should be given to the mother in the absence of circumstances that would indicate that the welfare of the child would be harmed or would not be benefitted by the granting of custody to the mother.

The single factor that would lead to the possibility that such a condition exists here stems from the circumstance that the mother is living in open adultery, in a continuous fashion with someone since February, 1978. . . .

Both the parties to this attachment have indicated that they propose ultimately to be married. Whether and when, if at all such a union of parties can be accomplished, is of course under the law of Maryland as it exists today a somewhat doubtful thing.

The union of Mrs. Swain and Mr. Impellizeri causes concern also because it appears that although both dislike the description that they were living together for the substantial period of time between February, 1978 and continuing, obviously in the absence of testimony to the contrary up to the present moment, both acknowledged that his presence within the apartment of the mother and where the child resides, it's frequent during each week, and that his visitation in that apartment, whether he is living there in the sense that they seem to object or not, he is there overnight. He is there when the child goes to bed. He is there when the child arises in the morning.

The question then is when under those facts, the circumstances of the relationship between Mrs Swain and Mr. Impellizeri justifies the Court or requires the Court or permits the Court to grant custody of the child to Mrs. Swain in the presence of those acknowledged circumstances."

After summarizing earlier Maryland decisions which discuss the effect of a parent's adulterous conduct on the award of custody, the chancellor quoted from Davis v. Davis, 280 Md. 119, 127, 372 A.2d 231, 235 (1977), U.S. Cert. denied, 434 U.S. 939, 98 S.Ct. 430, 54 L.Ed.2d 299, Reh. denied, 434 U.S. 1025, 98 S.Ct. 754, 54 L.Ed.2d 774:

" 'We now explicitly hold that the Pontorno (V. Pontorno, 257 Md. 576, 263 A.2d 820) and Neuwiller (V. Neuwiller, 257 Md. 285, 262 A.2d 736) cases implicitly recognized, I. e., that whereas the fact of adultery may be a relevant consideration in child custody awards, no presumption of unfitness on the part of the adulterous parent arises from it; rather it should be weighed, along with all other pertinent factors, only insofar as it affects the child's welfare. We note that this view is in accord with the majority of other courts around the country.' "

The chancellor continued in his own words:

"It then becomes the duty of this Court to deal with the factual conditions outlined heretofore in the light of the decision in Davis. The Court concludes that although the possibility exists that as time pursues, if the party, if Mrs. Swain and Mr. Impellizeri maintain the position they presently occupy, the adulterous position they occupy, or at least will continue so long as Mr. Impellizeri remains married to his wife now in Italy, there may indeed be some harmful effect upon this child as time goes on. We cannot however, in the view of this Court, speculate upon such a circumstance or condition because the Court finds that there's absolutely nothing in relationship at this point in time that mars or stains in any way the life of the child.

In short, the Court believes that the relationship between parties has not at that point been shown to have had a deleterious effect upon the child's welfare. Accordingly, the Court believes that the adulterous conduct of the mother does not outweigh the circumstances that otherwise would have impelled the Court to grant custody to the mother. Since it does not outweigh those circumstances, the Court will pass a decree awarding custody of the minor child of the parties to the mother."

The appellant now contends that the chancellor misapplied the law to the facts of this case and abused his discretion in granting permanent custody of the minor child to Mrs. Swain. He argues that the chancellor was clearly erroneous in his failure to conclude that there was substantial detriment to the child from its exposure to the adulterous relationship of the mother. We disagree.

I

In Christman v. O'Connor, 36 Md.App. 263, 270-71, 373 A.2d 326, 330 (1977), this Court, citing Davis v. Davis, supra, explained the standards of appellate review applicable to child custody disputes. We said:

" 'In sum, we point out three distinct aspects of review in child custody disputes. When the appellate court scrutinizes factual findings, the clearly erroneous standard of Rules 886 and 1086 applies. If it appears that the chancellor erred as to matters of law, further proceedings in the trial court will ordinarily be required unless the error is determined to be harmless. Finally, when the appellate court views the ultimate conclusion of the chancellor founded upon sound legal principles and based upon factual findings that are not clearly erroneous, the chancellor's decision should be disturbed only if there has been a clear abuse of discretion.' (footnote 4 omitted). Davis v. Davis, supra, 280 Md. at 125-26, 372 A.2d at 232.

This has been further explained by the Court of Appeals in Ross v. Hoffman, 280 Md. 172, 372 A.2d 582 (1977):

'The teaching of Davis v. Davis, supra, is plain. The...