Vernon v. Vernon

• Decision Date: 24 March 1976
• Docket Number: No. 246,246
• Citation: 30 Md.App. 564,354 A.2d 222
• Parties: Betty L. VERNON v. Raymond M. VERNON.
• Court: Court of Special Appeals of Maryland

Page 564

30 Md.App. 564

354 A.2d 222

Betty L. VERNON v. Raymond M. VERNON.

No. 246.

Court of Special Appeals of Maryland.

March 24, 1976.

Certiorari Denied May 25, 1976.

Nelson M. Oneglia, College Park, for appellant-cross-appellee.

Morris Topf, Hyattsville, with whom were Stanbury & Topf, Hyattsville, on the brief, for appellee-cross-appellant.

Before ORTH, C. J., and POWERS, and MASON, JJ.

MASON, Judge.

This case concerns the custody of Charles (Chipper) Vernon who is presently fourteen years old. His parents, Betty L. Vernon (mother) and Raymond M. Vernon (father) were married in 1951. This marriage produced three children, two of whom have now reached the age of majority. The parties were separated in 1971 and in 1973 the husband obtained divorce on the grounds of his wife's adultery. At the time the divorce was granted, August 20, 1973, the chancellor found that the wife's transgressions had not continued and that she was a fit and proper person to continue custody of the children.

In less than a year, May, 1974, the father petitioned for a modification of custody. The hearing was held in the Circuit Court for Prince George's County in August, 1974, before a different chancellor than the one who had heard the divorce proceedings and had made the original award of custody to the wife. At the conclusion of his hearing, the chancellor reserved judgment and directed the Department of Juvenile Services and a staff psychologist of the court to submit reports on the fitness of the parents. Both reports recommended that the mother retain custody of the children, although they stated that either parent was capable of providing a good home.

At the disposition hearing, held in February, 1975, the chancellor denied the husband's motions, (1) that the psychologist's report not be received and (2) that an evidentiary hearing be held in order that the psychologist could be cross-examined. The chancellor, contrary to the recommendations of the submitted reports, awarded custody of the child to the father. From this order, the mother filed an appeal and the father filed a cross-appeal on the basis that the chancellor erred in denying his motion ne recipiatur and his motion for an evidentiary hearing. Since the decision of the chancellor was contrary to the recommendation of the psychologist's report, and the custody of the child was awarded to the father, it is not necessary to answer the issues raised on cross-appeal by the father. ¹

We next consider whether there was sufficient evidence to justify the change of custody of the child from his mother to his father. In Maryland, the overriding and determinative factor regarding the custody of minor children is the best interest of the child. Kauten v. Kauten, 257 Md. 10, 261 A.2d 759 (1970); Hild v. Hild, 221 Md. 349, 157 A.2d 442 (1959); Cooke v. Cooke, 21 Md.App. 376, 319 A.2d 841 (1974). It is also an established principle that the custody of children should not be disturbed unless there is a strong reason which affects the welfare of the child. Krebs v. Krebs, 255 Md. 264, 257 A.2d 428 (1969); Winter v. Crowley, 231 Md. 323, 190 A.2d 87 (1963); Kramer v. Kramer, 26 Md.App. 620, 339 A.2d 328 (1975); Sullivan v. Auslaender, 12 Md.App. 1, 276 A.2d 698 (1971). '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 . . . it appears advisable for the good of the child.' Winter v. Crowley, supra, 231 Md. 331, 190 A.2d 91. A determination of custody should emphasize changes in the circumstances of the child which have occurred since the last hearing. Hardisty v. Salerno, 255 Md. 436, 258 A.2d 209 (1969); Cornwell v. Cornwell, 244 Md. 674, 224 A.2d 870 (1966).

In custody cases this Court is not restricted to the 'clearly erroneous' standard set forth in Maryland Rule 1086, but will exercise 'its own sound discretion' in determining whether the conclusion of the chancellor was in the best interest of the child. Kramer v. Kramer, supra; Cooke v. Cooke, supra; Kirstukas v. Kirstukas, 14 Md.App. 190, 286 A.2d 535 (1972).

As previously stated, the custody of a child should not be disturbed except for strong reasons which affect the child's welfare. The father, as moving party, had the burden of persuasion to show that such reasons existed. A review of the record fails to establish the existence of such a change in circumstances.

The father alleged and sought to prove that the environment provided by the mother was detrimental to Charles because: (1) Charles was permitted to drink beer and was in the habit of drinking beer during his school lunch hour; (2) Charles was involved in fights with his brothers; (3) the mother encouraged the boy to sneak into sporting events and concerts without paying; (4) Charles had been truant from school; (5) Charles had been involved in a shoplifting incident; (6) Charles had been rowdy in his neighborhood by throwing snowballs and shooting his BB rifle at a neighbor's house; and (7) the mother often left the boy unsupervised late at night and for extended periods of time.

The evidence presented at the hearing did not support these allegations in any substantial way. First, the evidence showed that the mother did not drink, and that the beer drinking itself consisted of isolated instances of experimentation, i. e., taking a couple...