Widdoes v. Widdoes

• Decision Date: 08 June 1971
• Docket Number: No. 586,586
• Citation: 12 Md.App. 225,278 A.2d 100
• Parties: Helen L. WIDDOES v. Robert C. WIDDOES.
• Court: Court of Special Appeals of Maryland

Page 225

12 Md.App. 225

278 A.2d 100

Helen L. WIDDOES v. Robert C. WIDDOES.

No. 586.

Court of Special Appeals of Maryland.

June 8, 1971.

William B. Evans, Elkton, on brief, for appellee.

Argued before ORTH, MOYLAN and POWERS, JJ.

ORTH, Judge.

Robert C. Widdoes (appellee) filed a Bill of Complaint against Helen L. Widdoes (appellant) on 6 Auguat 1969 in the Circuit Court for Cecil County praying for a divorce a vinculo matrimonii and for custody of the minor children of the parties, Charles Carson Widdoes, age 16, and Gerald Keven Widdoes, age 6, both, according to the Bill, in the custody of the father. The ground alleged was adultery. In her Answer appellant denied committing adultery and averred that Gerald had been in her custody since the separation of the parties, she having previously filed suit in said court praying for the child's custody and that in said case appellee was ordered to pay her the sum of $20 per week for support of the child. The matter came on for hearing before the court and on 17 August 1970 it was ordered that appellee be divorced a vinculo matrimonii from appellant and that he be awarded custody of the two children with reasonable visitation rights in appellant, specifically on the first and third weekends of each month, each visitation to extend from 5:00 P.M. on Fridays until 8 P.M. the following Sunday. On appeal appellant's questions go only to the award of the custody of Gerald.

The case was heard on 24 February 1970. At the close of all the evidence and after argument by counsel, the court observed that there were two issues, 'The one of the divorce and the other of custody of the seven year old child.' It said it had no difficulty with the first and stated the reasons:

'The law of Maryland is that where one has the desire plus the chance or the opportunity plus the inclination as it is sometimes put to commit adultery, then that person can't blame the Court if in deciding that adultery has been committed the Court may be wrong. The desire can be evidenced by sitting close together in the car, necking and petting which was the testimony in this case. The opportunity or the chance of course is anytime that a couple is alone long enough to have sexual intercourse; and of course the undisputed evidence in this case is that on the night of * * * July 31, the wife was alone with Loomis (her alleged paramour) for two and a half hours in the apartment. This is not disputed, so under those circumstances the Court will grant a divorce of Vinculo Matrimonii to the husband, Robert C. Widdoes and will sign a decree.'

The court held the matter of the custody of Gerald sub-curia. ¹ In the meantime he was to remain with the mother and to be supported by the father.

On 17 August 1970 an evidentiary hearing was conducted on the issue of the custody of Gerald. Appellee testified that on one occasion, in June 1970, he had observed one Eugene Loomis leave appellant's apartment at 2:00 A.M. and that on other occasions, the dates of which he did not remember, he had seen Loomis pick her up in front of her apartment, but not late at night. He said that if the court awarded him custody he had 'three sisters, a sister-in-law' who could take care of the boy. A sister, Ruth Cole, had kept the child for six years, staying with her while appellant worked. There was some evidence adduced about appellee seeing a divorcee, Elizabeth Beam. He said he was trying to sell her a car but also said that he had 'talked with her and discussed divorce. Her husband went away with a bowling alley tramp and is $700 back in her support. That is the reason she can't buy a car from me.' He had taken her to a ball game with her son and had dinner at her house in the presence of her son and daughter. On cross-examination he said he had been to visit her at her home in Wilmington 'quite a few' times and that he saw her quite often, about two or three times a week. On cross-examination appellee said that the night before the hearing appellant beat him up and then had him arrested. On inquiry by the court it was elicited that appellee works until 8:00 P.M. three nights a week, Monday, Wednesday and Friday and that he works on Saturday. Every third week he gets a weekend off, but has to work a half a day, apparently on Saturday. The court asked who he would 'be counting on to take care of Gerald and act as a mother to the child if he were to have him.' Appellee replied: 'Ruth (his sister) would help me. I have an aunt that I probably will live with, both of my sons. I have already discussed it with her. I would like to keep my house, but I might not be able. I lived twenty years with my aunt and I can go over there and my sons can go over there.' The court inquired: 'Well, Bob, with this situation with Mrs. Beam, regardless of whether anything wrong is happening you of course haven't seen anything wrong happening with Gene Loomis. You have your thoughts about it, but you haven't seen anything. As far as Jerry in concerned, isn't it six of one and half a dozen of the other, both of you seeing somebody else?' Appellee asserted that he 'don't bother with anybody' and that Mrs. Beam was a 'very nice lady and a respectable lady.' On the other hand he claimed that appellant had been fooling with a married man for three years. 'All she deserves is Mr. Loomis and her freedom to go to the Bowling Alley or the back roads or whatever.' After 24 February 1970 he thought he was divorced. The court adduced additional information about the aunt. She was 72 years old and took care of the older boy. She and appellee's sister or his sister-in-law would take care of Gerald during the day and in the evening when appellee worked his sister would take care of the child.

Mrs. Allan Eugene Loomis, Sr. testified that she was living with her husband and that he had never asked for a divorce although one time he suggested that perhaps they 'should have a separation'. She was away for two months, 11 April to 4 June, after the trial of the instant action and had 'no knowledge what went on at that time.' But on 4 June she saw his car near appellant's house at 12:00 A.M. and he got home an hour later. She kept a log. On five other occasions to 13 June she saw his car by Mrs. Widdoes' house and he arrived home an hour or so later. On 13 June, seeing his car, she went straight to the window of the house and looked in 'and there were no lights in the apartment.' It appeared on cross-examination that she had not seen her husband on any of the occasions she saw the car but when he got home at 1:30 or 1:45 or 2:00 o'clock in the morning and she asked him, 'You don't mean to tell me that you are spending seven nights a week there?', he said, 'Could be.'

Appellant testified in her own behalf. She had custody of Gerald since the trial on 24 February. As agreed she left him with appellee every Sunday after Sunday School and picked him up at 8:00 P.M. that night. He had not asked for the child at any other times and had he requested additional right of visitation she would have granted it. She claimed that appellee was behind about 16 weeks in the child support payments because although he was to pay four and sometimes five times a months he actually paid only three times a month. She had been receiving about $60 a month instead of $20 a week. She said her relationship with Gerald was 'the best.' She worked at the Elkton Trucking Company and her niece, Terry McDaniel, 17 years of age, who lives in Newark, Delaware, took care of him during the day. She left him with Terry every morning and picked him up every afternoon 'straight from work at 4:30,' and this pattern was followed regularly except for one week when her niece was away. During that period the child stayed during the day at the home of Curtis George. After 4:30 P.M. appellant took care of the child. 'He had never been out of my sight. He has been out of my sight for one night since February 24th. We go to Little League Ball Park three or four nights a week down in back of Newberry's and I go with him.' When she picks up the child on Sunday from his father 'I get a going over, a tongue lashing every Sunday.' In front of the boy '(h)e tells me like, you have no reason having this boy-Jerry, your mother is shacking up with a married man-all that kind of stuff.' Gerald told her that appellee had been taking him to Mrs. Beam's house and she checked. She said his car was there every night in the week. 'All different hours. I would say anywhere from 9:30, ten o'clock, eleven o'clock, twelve o'clock, one o'clock, two o'clock and as high as 3:00 A.M. in the morning.' Her testimony indicated that Mrs. Beam on some occasions had been in the house owned by appellant and appellee. She said she had been in the company of Loomis since 24 February and that her son was present. He took her and Jerry out to dinner at Gino's on 13 May 'which was the first occasion I had seen Mr. Loomis since February 24th.' They got home at 10:15 P.M. and Loomis let her and Jerry out in front of the apartment and he continued on home. 'He did not come in the apartment.' Once they also went to an Oriole game and Loomis took her and Jerry to the airport when she went to her sister's on vacation and picked her up when she returned. 'When he came back I wouldn't even let him take the luggage into the house, he set the luggage on the sidewalk and I carried it in.' Loomis had been in her apartment three times since February 24th-on a Sturday afternoon when Jerry had the mumps because she was working and on two evenings. She explained that there was another car exactly like his that parks in the parking lot.

At the close of all the evidence the court said:

'I am going to decide the case, now. I am sure that it will not be a perfect decision because you can't make perfect decisions in situations like this. I am certain that both parties are not blameless. We have to decide the case on what is in the best interest of the child and...