Winter v. Crowley

• Decision Date: 16 April 1963
• Docket Number: No. 186,186
• Citation: 190 A.2d 87,231 Md. 323
• Parties: Anne Marie Crowley WINTER v. Stephen Bradford CROWLEY, Jr.
• Court: Maryland Court of Appeals

Page 323

231 Md. 323

190 A.2d 87

Anne Marie Crowley WINTER v. Stephen Bradford CROWLEY, Jr.

No. 186.

Court of Appeals of Maryland.

April 16, 1963.

Ferdinand J. Mack, Rockville (Arthur J. Hilland and James E. Hogan, Rockville, on the brief, for appellant.

Elizabeth H. Allen, Silver Spring, for appellee.

Before BRUNE, C. J., and HAMMOND, PRESCOTT, HORNEY, and MARBURY, JJ.

BRUNE, Chief Judge.

This custody case is a sequel to a divorce case. On March 21, 1961, the appellee, Stephen B. Crowley, Jr., was awarded a divorce a vinculo matrimonii from the appellant, then Anne Marie Crowley, on the ground of her adultery, and by the same order he was awarded custody of their four children. The present proceedings were initiated by a petition filed on February 13, 1962 by the appellant to modify the decree of March 21, 1961 by awarding the custody of the children to her. The Circuit Court denied her petition for custody, but modified its previous order with regard to the appellant's rights of visitation by making the times and conditions more definite (and also more liberal than what the appellee had been according under the original order). The appellant, who has remarried since the divorce and is now Anne Marie Winter, appeals from the denial of her petition for changing the custody of the children from her former husband to herself.

The trial of this case extended over about two and a half days, and quite full testimony was adduced by each side, with the sharply differing views that are not uncommon in such cases. The mother, as we shall refer to the appellant, offered testimony to show that since her remarriage she was leading an entirely proper life and was a good housekeeper and that she and her present husband were taking good care of two young children of a friend of the mother who were living with them as foster children. A number of persons testified that in their opinion the mother was a fit person to have custody of her four children, whose custody is here at issue. Her new husband, Mr. Winter (who was in no way involved in the appellant's divorce case), was described as being fond of children, as getting on well with them, and as maintaining a firm, but in no way harsh discipline. He had previously been married and had seven children of his own, all of whom lived with their mother, who has obtained a divorce on the ground of desertion. He was on friendly terms with all of these children, and apparently there was no bitterness between him and his ex-wife. The house in which the Winters live contains four bedrooms. It was proposed that the two foster children, the four Crowley children, and the two adult Winters all continue to live there, and it was asserted that the house would be adequate without change for the entire group for several years. Because of a hysterectomy (performed before the divorce) the mother can have no more children.

Since the divorce of the parties in March, 1961, the father and the children at first continued to live in the former matrimonial home, and the mother moved out. Soon afterwards, acting on the advice of her counsel, she moved back, and the husband and children then moved out. For a time they stayed with his first cousin and her husband and their three children. Then as the new school year was about to open, they moved for a short time to the home of the father's mother. Meanwhile, the father's mother was having a new house containing four bedrooms and two bathrooms built for the father and the four children on a one-acre lot separated from her house by a vacant lot of roughly the same size, the three properties together amounting to about three acres. All of them are owned by the father's mother.

A few months after the divorce the father had a mental breakdown and made some attempt at suicide. He was suffering from extreme depression. The depression and breakdown were, according to expert medical testimony, caused by the father's marital difficulties and the break-up of the home. After a brief period of hospitalization and psychiatric treatment he was discharged from the hospital, but continued treatments, including in all over twenty shock treatments, which were gradually diminished. By the time of the trial they had ended, but he was continuing group therapy treatments. The prognosis for his complete mental recovery was good. He was unable to work for some months after his breakdown and was supported by his mother. Just before Easter, 1962, he had gone back to work for a week in his appliance service business, but had injured his leg while hiding Easter eggs for the children and had had to have an operation to remove a cartilage.

At about the time when the trial of this case started, the father became engaged to a young woman whom he had met about two months earlier, and they were to be married a few days after the trial. The prospective Mrs. Crowley testified that she was very fond of the Crowley children, that they were fond of her and that they wanted her and their father to marry, and that she would be glad to have the children live with them if they wanted to do so, but not against their wishes. She also expressed a desire for children of her own.

The evidence indicated that at times the father had used foul language in referring to the mother in the presence of the children and that on one occasion he had spanked one child quite hard. There was also testimony to the effect that he had made the mother's exercise of her rights of visitation very difficult and that he had restricted them quite narrowly. There was also testimony the other way indicating that she did not fully use the rights which were accorded and that for some time, to show her disapproval of the circumstances in which the children were living, she did not visit them at all. There was also evidence that the children communicated with her secretly so as not to incur the anger of the father or of his mother and that she encouraged such communications. There was, in addition, evidence indicating that her visits to the children were quite upsetting to them and that she was influencing them against the father.

The testimony included both criticisms and defenses of the care which the children had received since the divorce, and there was conflicting testimony as to which parent the children themselves said they preferred to live with. The record includes extensive psychiatric and psychological reports mainly pertaining to the children, but also reports pertaining specifically to the father's breakdown and treatment. The psychiatrist who treated the father testified fully as a witness on both direct and cross-examination.

Judge Pugh filed an opinion in which he reviewed the major issues and contentions and set forth his findings and conclusions. He said in part:

'The defendant [mother] testified, and her witnesses corroborate her testimony, that she has changed her way of life since the divorce was granted on March 21, 1961. The defendant also claims that the plaintiff [father] is unfit to have the four children because he has had a nervous breakdown and therefore is unable to properly care for them. The Court is impressed with the effort of the defendant to change her way of life and feels that she has made real progress in readjusting herself. She appears to be happy and contented with her present husband. On the other hand, the Court cannot say that the evidence in this case establishes that the plaintiff is unfit to have the children.'

He then referred to the cases of Hild v. Hild, 221 Md. 349, 157 A.2d 442, and Parker v. Parker, 222 Md. 69, 158 A.2d 607, which hold that in a custody case, although there is no inflexible rule, '[u]sually, the fact that the mother has been guilty of adultery will be taken as indicating that she is not a proper person to have custody, and a strong showing must be made to overcome the usual rule or presumption against awarding custody to an adulterous mother.' See Parker v. Parker, supra (222 Md. at 75, 158 A.2d at 610.) He also referred to Bray v. Bray, 225 Md. 476, 171 A.2d 500. In that case, this court, speaking through Judge Prescott, summarized the law of this State on this subject and said in part (225 Md. at 483, 171 A.2d at 504): 'And the mother, who has been shown to have committed adultery and who claims to have mended her ways and to be a fit and proper person to raise a child, must make 'a strong showing' to overcome the usual rule against awarding custody to an adulterous mother * * *.'

After citing the Bray case, Judge Pugh went on to say:

'The defendant has only herself to blame. It was her actions which caused the divorce and the loss of custody of her children. She now claims to have changed her way of life. The Court, as heretofore stated, believes she has changed her way of life. The fact that she has changed her way of life, however, does not of itself, entitle her to the custody of the children. She has not made a strong showing that the plaintiff is unfit for the custody of the children. The evidence shows that the plaintiff has had a nervous breakdown and was hospitalized. This condition, in the opinion of a reputable...