Summary
In Wood v. Wood, 227 Md. 112, 175 A.2d 573, we held that the wife had made such a showing, but the facts of that case have little resemblance to those involved herein.
Summary of this case from Insogna v. InsognaOpinion
[No. 79, September Term, 1961.]
Decided December 5, 1961.
INFANTS — Custody Of Twelve-Year-Old Boy — Grant Of, To Mother, With Right In Father To Have Child During Two Summer Months, Held No Abuse Of Discretion — Mother's Adultery. In this proceeding to determine which of the divorced parents of a twelve-year-old boy was entitled to his custody, this Court held that the chancellor did not abuse his discretion, and was not clearly wrong in his conclusion on the facts, when he continued custody in the mother, with a right in the father to have the boy during July and August of each year. The rule against awarding custody to an adulterous mother who later marries the paramour is not inflexible, and the adulterous act in this case had occurred more than ten years ago, at a time when the parties to this cause were separated and married in name only. Otherwise, there was nothing to suggest that the mother had a bad character or reputation or was unfit to rear her child. The child was also of an age when his wish to live with his mother very properly could be considered. The chancellor, who saw and heard the witnesses, had an opportunity to evaluate, from the point of view of what was best for the child, the relative stability, sincerity and credibility of the parties and their respective present spouses. pp. 113-115
J.E.B.
Decided December 5, 1961.
Appeal from the Circuit Court for Prince George's County (PARKER, J.).
Petition by Robert L. Wood, Jr., to obtain the custody of his minor son, Thomas R. Wood, from Gloria Murray Wood, the child's mother and the petitioner's former wife. From an order continuing custody in the mother, with a right in the father to have the child during July and August of each year, the father appeals.
Affirmed, with costs.
The cause was argued before BRUNE, C.J., and HENDERSON, HAMMOND, PRESCOTT and SYBERT, JJ.
Stanley R. Jacobs for the appellant.
J. Grahame Walker for the appellee.
In this case a divorced husband appeals from an order granting custody of his twelve-year-old boy to the boy's mother. The parties were married in 1945, and the child, Thomas, was born in January, 1949. It appears that in March, 1949, the husband, a Second Lieutenant in the Air Force, was stationed in Missouri. The wife had evidently returned to her parents' home in Baltimore. A series of abusive letters written by him at that time and in 1950 indicate that the marriage was a failure and that he had lost any affection for her that he may have had. In 1952 he obtained a divorce a mensa, on the ground of desertion by her. In 1956, he was granted a divorce a vinculo on the same ground. By mutual consent, he was awarded nominal custody, on condition that Thomas be enrolled in McDonogh School as a boarding student and that the mother have Thomas with her for one-half the holidays and summer vacations.
In July, 1957, the mother married a Mr. Horton, a resident of Landover, Maryland. It appears that she had had a child by him in 1951, while Mr. Wood was overseas. In 1958, she sought to obtain custody of Thomas, who was still at McDonogh, because of the fact that Mr. Wood, who was still in the service, had been ordered to duty in Denver, Colorado. The court, however, ordered that the child be continued at McDonogh, where he was doing well scholastically, with equal visitation rights to the parents. In 1959, she again sought custody, because her then husband, Mr. Horton, had been transferred to New York. A motion for an indefinite continuance was filed by counsel for Mr. Wood on the ground that he had been hospitalized at Denver in the "closed psychiatric ward". The court denied the continuance, awarded custody to the mother, and permitted her to take Thomas to New York.
In March, 1960, Mr. Wood received a medical discharge from the service. He had remarried in 1958 and in August, 1960, he sought custody of Thomas. After a full hearing, the chancellor continued custody in the mother, with the right in Mr. Wood to have Thomas during the months of July and August each year. This appeal followed. It appears that the Hortons are now living in Norwalk, Connecticut, in a substantial home, and that Thomas is happy and doing well socially and scholastically. Mr. Horton has received several promotions, and his present salary is $30,500.00 a year. Thomas expressed a preference for living with his mother. The new Mrs. Wood, a divorcee with one child eight years of age, and two infants by Mr. Wood, expressed a willingness to take Thomas, but only if he wanted to live with them.
The appellant relies heavily on the cases of Hild v. Hild, 221 Md. 349, and Parker v. Parker, 222 Md. 69. In each of these cases an award of custody to an adulterous mother who had married a paramour was reversed. Both cases, however, recognized that the rule was not inflexible and did not purport to overrule any previous case where such an award had been sustained. See also Bray v. Bray, 225 Md. 476. We think the cases cited are distinguishable on their facts. In the case at bar the adulterous act occurred more than ten years ago at a time when the parties were separated and obviously married in name only. Aside from this indiscretion, there is nothing to suggest that she has a bad character or reputation or is unfit to rear her child. The child is also of an age when its wishes very properly can be considered. The chancellor saw and heard the witnesses. He had an opportunity to evaluate, from the point of view of what is best for the child, the relative stability, sincerity and credibility of the parties and their respective spouses. We cannot find that he abused his discretion or that his conclusion on the facts was clearly wrong.
Order affirmed, with costs.