Trudeau v. Trudeau

• Decision Date: 22 March 1954
• Docket Number: No. 98,98
• Citation: 103 A.2d 563,204 Md. 214
• Parties: TRUDEAU v. TRUDEAU.
• Court: Maryland Court of Appeals

Page 214

204 Md. 214

103 A.2d 563

TRUDEAU v. TRUDEAU.

No. 98.

Court of Appeals of Maryland.

March 22, 1954.

John Wagaman, Hagerstown (Wagaman & Wagaman, Hagerstown, and Wm. F. MacQueen, Dearborn, Mich., on the brief), for appellant.

J. Louis Boublitz and D. K. McLaughlin, Hagerstown, for appellee.

Before DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

HAMMOND, Judge.

This appeal is from an order continuing custody of young children in their mother in the face of allegations by the father that she is an unfit person.

Dr. John Trudeau, the appellant, was granted a divorce from his wife, Camilla Trudeau, the appellee, in Alpena, Michigan, in February, 1951 on grounds of extreme cruelty. The couple were married in 1946 and have two children, a girl and a boy, now eight and seven, respectively. The Michigan Court, finding that the charge of habitual and excessive drinking had not been proven against the mother, awarded her the custody of the children over the objection of the father. He was given custody for one month a year, in the summer, and the right to visit at all reasonable times and places, and ordered to pay $250 a month for the support of the wife and children. Mrs. Trudeau was authorized by the divorce decree to take the children out of Michigan, and in 1952, moved to Hagerstown, where her mother and sister and brothers live. In June, 1950, the same month he left his wife and children, Dr. Trudeau employed a new secretary and office nurse. In 1951, one day after she had obtained her Nevada divorce, he married her. They have two children, one having been born since the hearing below. In March, 1953, Dr. Trudeau filed a bill of complaint in the Circuit Court for Washington County, alleging that Camilla Trudeau was a totally unfit person to have the care and control of the children, because she had on frequent occasions, during the occupancy of her apartment in Hagerstown from February, 1952 to the filing of the bill, entertained men--some temporarily,others over night, and still others, for extended periods, and has on numerous occasions through the entire period become highly intoxicated, so that she has become and is a habitual drinker. It is also alleged that Mrs. Trudeau fails: '* * * (1) to exercise proper motherly or family discipline and control over said infant children, (2) to train them in satisfactory domestic conduct and (3) to practice and guide them in the proper principles of morality and good behavior' and '* * * has permitted said infant children to be without proper parental care, custody and kind treatment; * * *.' It is alleged that Dr. Trudeau and his present wife: '* * * are persons of suitable character and now have the domestic and financial facilities for the proper care, custody and upbringing of said infant children in surroundings and circumstances which will be conducive to their development and growth into proper moral citizens, and strongly desire to have the care, custody and control of said infants.'

The case was heard in April, 1953. The Chancellor took the rather extensive testimony under advisement until the following August, when he decided that the best interests of the children would be served by allowing them to remain with the mother, subject to the terms and conditions set forth in the decree of the Michigan Court. He retained jurisdiction of the case so that the question of custody may be reopened at any time.

The principles which control the determination of custody cases are well established.

The mother and the father are joint, natural guardians of their minor children and neither parent has an inherent right to custody superior to that of the other. Miller v. Miller, 191 Md. 396, 62 A.2d 293. If necessary, custody may be given to more remote members of the family, or indeed, to those outside of the family. The mother is preferred where the children are of tender years. Cullotta v. Cullotta, 193 Md. 374, 66 A.2d 919; Brault v. Brault, 189 Md. 175, 55 A.2d 497. Despite this, the award of custody will not be made merely to gratify a natural maternal affection. Atkins v. Gose, 189 Md. 542, 56 A.2d 697. If the mother has been guilty of adultery, the custody will be generally given to another. Pekar v. Pekar, 188 Md. 360, 52 A.2d 468; Stimis v. Stimis, 186 Md. 489, 47 A.2d 497; and Pangle v. Pangle, 134 Md. 166, 106 A. 337. This rule, however, is not invariable. Swoyer v. Swoyer, 157 Md. 18, 145 A. 190; and Atkins v. Gose, supra. The overriding consideration is the best interest and welfare of the children. The cases have described the search for this result as the main, the chief, the paramount, and the sole concern of the court in every case. Miller v. Miller, supra, at page 407 of 191 Md., 62 A.2d 293; Cullotta v. Cullotta, supra, at page 384 of 193 Md., 66 A.2d 919; Chillemi v. Chillemi, 197 Md. 257, 262, 78 A.2d 750; and In re Harris, 200 Md. 300, 310, 89 A.2d 615. Thus, whatever paths of the maze are followed, the destination is always the child's welfare and prospects. Even as no will have a twin, no custody matter is the image of another and in none can the proper paths be plotted automatically on a map of the principles laid down by the cases. This is why the opinions of this Court reiterate, as particularly applicable, the rule that the opportunity of the Chancellor to see and hear the witnesses must be accorded the greatest respect. It was set forth in Cullotta v. Cullotta, supra, 193 Md. 374, 66 A.2d 924, in these words: 'This case is another of those in which the atmosphere of the trial, the appearance and demeanor of the witnesses is invaluable in reaching a correct and just conclusion. If the record in this case left us in doubt, we should not disturb his findings.' In many cases, this Court has said it will bow to the trial finding unless compelling reasons require otherwise. In re Harris, supra; Collins v. Collins, 184 Md. 655, 42 A.2d 680; and Atkins v. Gose, supra.

In the case before us, the allegations of the bill that the mother failed to exercise discipline or control over the children and permitted them to be without proper parental care and home treatment, not only were not proven but were either admitted, or shown, to be entirely untrue. It is now conceded that Mrs. Trudeau loves the children dearly and they fully reciprocate. The children are neat, well dressed, healthy, normal, and well cared for. They attend a Catholic school because their father is Catholic, although the mother is not.

The father not only did not avail himself of his right to custody in the summer, and of visitation, from February, 1951 to March, 1953, but never wrote to the children or sent them presents or greetings. He refused to talk to them when they called him by long distance telephone. He was almost, if not, a stranger to them and, of course, his wife is a complete stranger. Despite the present Mrs. Trudeau's statement that she was willing and able to care for the children, the Chancellor seemingly found an inner reluctance and feeling of doubt on her part, which he felt was justified, although the physical environment and material resources described by the father in Michigan seem fully adequate.

The children's grandmother and uncles and aunts live in Hagerstown and there is the normal visiting back and forth, and the companionship of cousins of the same age. Credible witnesses, members of the...