Wilhelm v. Wilhelm, 185

• Decision Date: 24 June 1957
• Docket Number: No. 185,185
• Citation: 133 A.2d 423,214 Md. 80
• Parties: Lillian E. WILHELM v. Thomas F. WILHELM, Jr.
• Court: Maryland Court of Appeals

Page 80

214 Md. 80

133 A.2d 423

Lillian E. WILHELM v. Thomas F. WILHELM, Jr.

No. 185.

Court of Appeals of Maryland.

June 24, 1957.

Walter B. Siwinski and Cullen H. Hormes, Towson, for appellant.

A. Frederick Taylor, Towson (Smalkin, Hessian, Martin & Taylor, Paul Martin, and Arnold Fleischmann, Towson, on the brief), for appellee.

Before BRUNE, C. J., COLLINS and PRESCOTT, JJ., and WILLIAM R. HORNEY, Special Judge.

BRUNE, Chief Judge.

This is a controversy between the divorced parents of a nine year old girl, who will be ten in a few months. At the time of the divorce in 1949, custody of the child was awarded to the mother. In December, 1955, the decree was modified to the extent that custody was awarded temporarily to the father. On October 31, 1956, costody was awarded to the father, with the right to the mother to visit the child at reasonable times and places, all subject to the further order of the Circuit Court for Baltimore County. The appeal is from that decree. (The decree also directed the payment of alimony, but that matter is not in dispute on this appeal.)

It seems unnecessary at this time to review the unhappy marital life of the parties in any detail. Suffice it to say that it got off to a bad start in the two weeks following the marriage, during which time the husband was on leave from the Navy in World War II, that difficulties ensued after his return following the cessation of hostilities, that the wife became emotionally so upset that she attempted suicide and was sent to a State mental institution for two months, from October to December, 1946, that she was then paroled, that a reconciliation followed in January, 1947, that the wife instituted divorce proceedings in May, 1947, that the child, Cheryl Wilhelm, who is the subject of the present controversy was born in October, 1947, and that the wife obtained a decree of divorce on the ground of desertion in May, 1949.

The decree also awarded custody of the child to the wife, who had been completely discharged by the mental institution in December, 1948--a year after her parole. The husband visited the child a few times shortly after her birth and not at all for about the next five years. The wife worked and much of the time lived with her mother and, while at work, left the child in the care of the latter, who is not approximately seventy years of age. The wife has changed her address in Baltimore City frequently and for a time resided in Detroit, to which city she took the child with the approval of the Circuit Court for Baltimore County. The husband was frequently in arrears in the payment of alimony and support for the child under the provisions of the 1949 decree. In 1955 the wife thought, according to her testimony, that she would have to go to a hospital for surgical treatment and for a somewhat protracted stay. She placed the child temporarily in what seems to have been a foster home with a Mrs. Utz. The surgical treatment proved to be unnecessary, and some question is suggested as to the genuineness of the wife's belief that she would need surgery.

In November, 1955 the husband filed a petition for the modification of the 1949 decree and for the award of custody of the child to him. After the divorce he had remarried. His second wife had a daughter approximately the same age as that of his own daughter, and Mr. Wilhelm and the second Mrs. Wilhelm have a son about five years younger. Mr. Wilhelm is engaged in business for himself as a plumber, and he and his family reside at Owings Mills in Baltimore County in what would appear to be a good home, though somewhat small for a family of five.

A hearing was held on the husband's petition for custody in December, 1955, and the next day custody was awarded to him temporarily. A further hearing was held on June 27, 1956. During this hearing Judge Gontrum, who has a notable record in juvenile court work and kindred matters, expressed the desire to obtain another report from the Probation Department as to how the child was getting on in her father's home and to interview the child before making a final decision in the case. He also said that he might like to have an opinion from a psychiatrist in the case.

A comprehensive report was submitted about a month later by the head of the Probation Department. He had testified at the hearing in June that, in his opinion, the child should stay where she was--that is, in the home of her father and stepmother. His subsequent report supported this opinion. The case had been known to the Probation Department since 1949, and a voluminous file had been built up. The report of July 30, 1956 stated in part: 'It would appear generally that neither party has done their utmost for the child involved, the mother changing not only her place of abode regularly but moving from one section of Baltimore to another and the father failing to live up to the court order for support of the child.' The report indicated that the father's home was a desirable one and that it would be enlarged to afford the child better living quarters if her custody were awarded to the father.

The custody award of October 31, 1956, was made without the child having been brought in to talk with the Judge. No psychiatric report was obtained, and there was no further hearing after that of June 27th. No opportunity appears to have been sought to cross-examine the Probation Officer with regard to his report of July 30, 1956.

The appellant mother complains that the decree awarding custody to the father is not supported by the evidence. She also complains that the trial court erred in sustaining an objection to a...