Taylor v. Taylor

• Decision Date: 01 September 1984
• Docket Number: No. 40,40
• Citation: 60 Md.App. 268,482 A.2d 164
• Parties: Judith Ann TAYLOR v. Neil R. TAYLOR, III. ,
• Court: Court of Special Appeals of Maryland

Page 268

60 Md.App. 268

482 A.2d 164

Judith Ann TAYLOR v. Neil R. TAYLOR, III.

No. 40, Sept. Term, 1984.

Court of Special Appeals of Maryland.

Oct. 10, 1984.

Bruce A. Kaufman, Baltimore, with whom were Thomas D. Wolfe and Miller, Rosenthal & Kaufman, P.A., Baltimore, on the brief, for appellant.

Cynthia Malament, Rockville (Nancy D. Polikoff, of counsel) for amicus curiae, Women's Legal Defense Fund.

Ronald M. Naditch, Annapolis, for appellee.

Argued before LISS, WILNER and BELL, JJ.

LISS, Judge.

Appellant, Judith Ann Taylor, and appellee, Neil Randall Taylor, III, were married on November 26, 1977. The parties had two children as a result of the marriage, Christina Lee Taylor, born April 9, 1979, and Neil Randall Taylor, IV, born August 5, 1980.

Appellant is employed part time by the Cecil County Board of Education as a second grade teacher. The appellee is employed full time by the Cecil County Board of Education as a health and physical education teacher.

On September 29, 1982, the appellee filed a bill of complaint in the Circuit Court for Cecil County, alleging adultery and abandonment and requesting, among other relief, that he be granted a divorce a vinculo matrimonii and temporary and permanent custody of the minor children of the parties. On November 3, 1982, the appellant filed an answer to the bill of complaint in which she requested immediate custody of the minor children both pendente lite and permanently. On December 7, 1982, the presiding chancellor signed a pendente lite order granting what he regarded as joint custody of the minor children of the parties. In fact, the children were to reside with the appellee in the family home with appellant having liberal visitation rights.

On April 12, 1983, appellant filed an amended and supplemental answer to the bill of complaint and a show cause order in which she requested, among other things, that the order dated December 7, 1982, be stricken and that she be awarded the sole care and custody of the minor children of the parties, both temporary and permanent. The case was tried on the merits in April of 1983. After carefully considering the testimony of all of the witnesses, the chancellor granted the appellee a divorce a vinculo matrimonii and ordered that the custody of the children be awarded to both parties jointly. On August 18, 1983, appellant filed a motion for reconsideration, which was denied.

Appellant then noted this appeal, raising the following issues for determination by this Court:

1. Whether the trial court erred because it did not have jurisdiction to grant joint custody?

2. Assuming, arguendo, that the trial court had jurisdiction to award joint custody, did the court abuse its discretion in so doing?

1. and 2.

In his written opinion the chancellor indicated that he perceived the principal issue before him was whether the best interest of the children would be served by awarding custody to the mother, or the father, or to "continue the present arrangement which is a sort of joint custody agreed upon by the parents in November, 1982." Because of the continuing indiscretion of the appellant the chancellor found that she was not at the time of the issuance of his decree an appropriate candidate for exclusive custody of the children. On the basis of the evidence before him the chancellor found the father not to be a candidate for exclusive custody.

On the basis of these conclusions the chancellor awarded joint custody, which we concede to be unusual but in view of all the circumstances we do not find to be arbitrary or unreasonable. This is particularly true in the light of the circumstances that he adopted a plan which "the parties had reached prior to the trial of the case on its merits."

The chancellor found as follows:

Both parents teach school. The father's work day is from about 8:30 A.M. to 4:15 P.M. and the mother's 12:30 P.M. to 4:15 P.M. The father is 32 and the mother 27. The mother confessed adultery in July 1982 and left the family in September 1982. The father would, but the mother will not, reconcile. In November 1982 the parties agreed upon a sort of joint custody of the children. Their base is in the father's home but the mother probably sees them more of their waking hours. The mother is in the home with the children Monday to Friday from 7:30 A.M. to 12:30 P.M. The mother has the children in her home from 4:15 P.M. to 8:00 P.M. Tuesday and on alternate weeks from 10:00 A.M. Saturday until 8:00 P.M. Sunday. The paternal grandmother babysits Monday to Friday from 12:30 P.M. to 4:15 P.M., i.e. from the time the mother leaves the children until the father gets home. The father pays his mother $29.00 weekly. The mother contributes no money for child support.

The chancellor concluded that under the circumstances the custody arrangement previously worked out between the parties would not be disturbed.

In this appeal appellant now attacks the chancellor's decree and opinion on the basis that the trial judge erred because he did not have the power to grant joint custody. To support this contention appellant cites the only case decided by the Court of Appeals involving the issue of joint custody, McCann v. McCann, 167 Md. 167, 172, 173 A. 7 (1934), which stated that joint custody "is to be avoided whenever possible, as an evil fruitful in the destruction of discipline, in the creation of distrust, and in the production of mental distress in the child."

We note, however, that McCann was decided half a century ago. The question now being asked in this appeal is, does a court in a contested child custody proceeding have the authority to award joint custody of the children to both parents? This Court has already answered the question in the affirmative in the case of Kerns v. Kerns, 59 Md.App. 87, 474 A.2d 925 (1984).

In order to understand fully the Kerns decision, a definition of joint custody must be provided. ¹ "Joint custody, as commonly understood in the field of Family Law, is an arrangement in which (1) the parents share equally the authority and responsibility for making decisions that significantly affect the welfare of their child and (2) the child lives with each of them on an equal or split time basis." Ester, Maryland Custody Law--Fully Committed to the Child's Best Interests?, 41 Md.L.Rev. 225 (1982). A decree awarding "joint custody" recognizes both parents as the "custodians" of the child in the sense that they are both actively responsible for the welfare of the child.

In determining its jurisdiction to award joint custody, the court looked to Maryland Code (1957, 1983 Repl.Vol.) Art. 72A, § 1 which provides in relevant part:

The father and mother are the joint natural guardians of their child under eighteen years of age and are jointly and severally charged with its support, care, nurture, welfare and education. They shall have equal powers and duties, and neither parent has any right superior to the right of the other concerning the child's custody.

Based on this statutory provision we determined in Kerns at p. 91, 478 A.2d 925 that "a decree which awards 'joint custody' to both parents is clearly consistent with the legislative declaration that parents are--and should be treated as--joint natural guardians." We held that the fact that the parties do not request joint custody is no limitation on the court's authority to award it. Kerns at p. 94, 478 A.2d 925. ²

Appellant contends that Kerns was incorrectly decided because it based its decision on the "false premise that Art. 72A, § 1 is a custody statute." She argues that the "true" custody statute is Section 3-602(a) of the Maryland Code (1974, 1984 Repl.Vol.) Courts and Judicial Proceedings Article which does not authorize an award of joint custody.

The Attorney General of Maryland in an opinion stating that Maryland Courts have the power to award joint custody gave as authority for his conclusion Art. 72A, § 1 which he held was the primary statute governing custody. Opinions of the Attorney General (1983),...