Davis v. Davis
Davis v. Davis
Opinion of the Court
delivered the opinion of the Court.
In this child custody dispute between divorced parents, we refuse to be cast in the role of a “super Solomon.”
The case before us is not an atypical example of the custody fights that often accompany divorces. Petitioner Mary Louise Davis and respondent John Franklin Davis, Jr. were married in 1958; three children, and nearly fifteen and one-half years later, the parties separated. To be explicit, Mrs. Davis, together with her six-year-old daughter Leigh, left the homestead on January 31, 1974, and moved into an apartment. That September, Mr. Davis filed a bill of complaint seeking a divorce a vinculo matrimonii on the ground of his wife’s adultery; additionally, he requested both temporary and permanent custody of the children. Mrs.
Mr. Davis noted an appeal to the Court of Special Appeals; that court reversed the order of the chancellor and awarded custody of Leigh to her father.
Because we recognize that there are prior decisions of this Court which support the Court of Special Appeals’ statement in its opinion in this case that “an appellate court ... must exercise its own good judgment as to whether the conclusion of the chancellor is the best one,” 33 Md. App. at 301, 364 A. 2d at 133, and inasmuch as, in line with our more recent cases, we now categorically reject this view, we feel constrained to clarify the standards of appellate review in child custody cases.
Maryland Rule 886 (applicable to this Court) and, in identical language, Rule 1086 (applicable to the Court of Special Appeals) provide the standard of review of actions tried without a jury.
Although these two propositions are clear, there is some confusion in our cases with respect to the standard of review applicable to the chancellor’s ultimate conclusion as to which party should be awarded custody. Notwithstanding some language in our opinions that this conclusion cannot be set aside unless clearly erroneous, see, e.g., Spencer v. Spencer, 258 Md. 281, 284, 265 A. 2d 755, 756 (1970) (per curiam); Goldschmiedt v. Goldschmiedt, 258 Md. 22, 26, 265 A. 2d 264, 266 (1970), we believe that, because such a conclusion technically is not a matter of fact, the clearly erroneous standard has no applicability. However, we also repudiate the suggestion contained in some of our predecessors’ opinions, see, e.g., Melton v. Connolly, 219 Md. 184, 188, 148 A. 2d 387, 389 (1959); Butler v. Perry, 210 Md. 332, 339-40, 123 A. 2d 453, 456 (1956); Burns v. Bines, 189 Md. 157, 164, 55 A. 2d 487, 490 (1947); cf. Ex Parte Frantum, 214 Md. 100, 105, 133 A. 2d 408, 411, cert. denied, 355 U. S. 882 (1957) (adoption case), and relied upon by the Court of Special Appeals in Sullivan v. Auslaender, 12 Md. App. 1, 3-5, 276 A. 2d 698, 700-01 (1971), and its progeny, see, e.g., Sartoph v. Sartoph, 31 Md. App. 58, 64 & n. 1, 354 A. 2d 467, 471 (1976); Vernon v. Vernon, 30 Md. App. 564, 566, 354 A. 2d 222, 224
In sum, we point out three distinct aspects of review in child custody disputes. When the appellate court scrutinizes factual findings, the clearly erroneous standard of Rules 886
(2) Finding of Parent’s Adultery as Affecting Award of Custody
The Court of Special Appeals in this case, after taking notice of the chancellor’s findings of Mrs. Davis’ adulterous conduct, concluded that because a presumption of unfitness had arisen, “[a] showing that she had repented and there was little likelihood of a recurrence of these actions was mandatory.” 33 Md. App. at 302-03, 364 A. 2d at 134. Premised on the ground that this requirement violated her rights to be free from compulsory self-incrimination, U.S. Const., Amend. V; Md. Deck of Rts., Art. 22, Mrs. Davis argues that the Court of Special Appeals erred in applying it. Although we agree with the petitioner that the Court of Special Appeals applied the wrong standard, we reach that conclusion by a different route, and find it unnecessary to pass on the constitutional issues.
The Maryland Reports are filled with decisions which discuss the effect a parent’s adulterous conduct has on the award of custody. Although our prior decisions recognized that one who has engaged in adultery is not ipso facto unfit to have custody, see, e.g., Orndoff v. Orndoff, 252 Md. 519, 522, 250 A. 2d 627, 628 (1969); Cornwell v. Cornwell, 244 Md. 674, 679, 224 A. 2d 870, 873 (1966), our predecessors held that a “strong presumption” of unfitness arises which only a “strong showing” of facts evidencing fitness will overcome.
Perhaps in response to the rapid social and moral changes in our society, two of this Court’s most recent cases have implicitly recognized that a finding of adultery per se no longer is a “highly persuasive indicium” of unfitness to have custody of one’s child. In Pontorno v. Pontorno, supra, 257 Md. at 580, 268 A, 2d at 822, Judge Finan for the Court, without mention of any presumption of unfitness, stated that “a finding of adultery is relevant to the extent that it may affect the welfare of the children.” And in Neuwiller v. Neuwiller, supra, 257 Md. at 286, 262 A. 2d at 737, this Court, again speaking through Judge Finan, held that where adulterous behavior is “not determinative of the central issue [as to] who will further the best interests of the child,” an infant may be awarded to a mother despite the fact that there is no showing that she had discontinued her conduct. Cf. Hild v. Hild, 221 Md. 349, 363-64, 157 A. 2d 442, 450 (1960) (Hammond, J., dissenting) (adultery should not create presumption of unfitness, but should be weighed by trier of fact in relation to individuals in each case). We now explicitly hold what the Pontomo and Nemoiller cases implicitly recognized, ie., that whereas the fact of adultery may be a relevant consideration in child custody awards, no presumption of unfitness on the part of the adulterous parent arises from it; rather it should be weighed, along with all other pertinent factors, only insofar as it affects the child’s welfare. We note that this view is in accord with the decisions of the majority of other courts around the country. See, e.g., Dinkel v. Dinkel, supra, 322 So. 2d at 24; Lockard v. Lockard, 198 Neb. 400, 227 N.W.2d 581, 583 (1975); Commonwealth of Pa. ex rel. Myers v. Myers, 360 A. 2d
(3) The Present Case
We now return to a consideration of the custody award by Judge Latham in this case. The chancellor had the benefit of several sources of information, gathered over a prolonged period of time, to aid his determination of what custodial arrangement would be in the best interests of Leigh. On January 10, 1975, a hearing was held before a domestic relations master in connection with the pendente lite custody of the three minor children. Six witnesses testified at that hearing: Mr. Davis and a private investigator hired by him, as well as Mrs. Davis, two of Leigh’s teachers and one of the petitioner’s neighbors. Rejecting Mr. Davis’ contention that his wife was unfit to be custodian of Leigh, the master made the following findings and recommendation in the report:
This Master has carefully considered the testimony adduced. While it may be that Mrs. Davis has, on occasion, shown what might be charactered as poor judgment in her association with other men, she has, in the opinion of this Master, (at least on the record of the hearing) sequestered the minor daughter from her association with her two (2) male friends. The Master does not feel that such association as has been shown clearly by the testimony to exist, is such as would warrant, at least on a pendente lite basis, the removal of the child from the custody of the mother. Katherine Leigh is adequately housed and clothed and attends a school not too far from her home. She appears to be doing well in school and has a competent sitter located in the same building in which the child lives, with a playmate her own age with whom to associate, who is the child of the same sitter.
Before Judge Latham ultimately made his decision as to the custody of the children (the divorce having been decreed in July), he had the benefit of a further hearing as well as the report of the court investigator. At a December 11, 1975 hearing, Mr. Davis again testified on his own behalf, and called two witnesses who were neighbors and potential babysitters for Leigh; he also interrogated his former wife. The court-ordered report contained additional information bearing on the fitness of both parties to have permanent custody of Leigh.
Because we must determine whether the chancellor’s findings of fact were clearly erroneous, whether he made any errors of law, or whether he abused his discretion in
Gentlemen, I have, of course, heard all of the testimony in connection' with the original trial of this case, which consumed a couple of days, and I have had the benefit of reviewing that transcript, and I have had the benefit of our custodial investigation in connection with the three children.
It’s obvious to me that Mr. Davis can and has provided an adequate or even more than adequate home for the two older children, and certainly on the basis of their latest report cards, and the custodial investigation report they are doing well with him.
It’s equally obvious to me that Mrs. Davis is able to and has been providing an adequate home for the youngest daughter, Leigh. It’s quite obvious to me that she would be unable to remain where she is if the Court awarded her custody of all three of the children, but I don’t intend to do that, so it’s not necessary to really even discuss that aspect of the case.
The primary concern of the Court in this particular case has been the younger child, Leigh, who has been with her mother, and as to whether that should be at least a temporary, permanent arrangement, or whether the custody should be changed to the father.
Being aware of the law in reference to the adultery of the mother and the presumptions that arise from it, at the same time we must consider that the law in the State of Maryland is, and has been for some time, that the best interests of the child is the paramount consideration that the Court should consider.
The present situation, obviously whenever a father and mother are divorced, and children are separated, is not very desirable. At the same time,*131 for a substantial period of time, well in excess of a year, the present arrangement has been in effect, and has apparently been working. That is not to say that if Mr. Davis had had Leigh during that period of time that she might not have made the same progress in school, and in her upbringing as she has with her mother. At the same time, the Court, based on all the information in this case, is reluctant at this point to make any change in the custody of Leigh, because I think that that would not be in her best interests.
Now, I am mindful though of the fact that, and as you had indicated, Mr. Foley [(respondent’s attorney)], this is something that the Court has the right to review, and I would certainly expect to review it very carefully if at any time any information was brought to the Court’s attention that she was, Mrs. Davis was conducting herself in any way that made it inadvisable to keep the custody of Leigh with her.
Initially, we note that none of the chancellor’s findings of fact is clearly erroneous — in reality, there appear to be no factual matters that ever were seriously in dispute. We also conclude that the chancellor recognized that the law requires custody to be awarded so as to further the best interests and welfare of the child. It is obvious that in effectuating this legal mandate, Judge Latham took into account the crucial factors present here, among them: that Leigh had been living with her mother alone for the past two years and was adjusted to this arrangement; that she was doing well in school and was adequately provided for at home; that even though Mrs. Davis had engaged in adulterous conduct in the past, there was no showing that it had ever deleteriously affected Leigh; and that there was uncontroverted evidence that Mrs. Davis had engaged in no sexual misconduct since February 1975. We discern no abuse of discretion. A case such as this, where custody might well have been awarded to either parent, aptly demonstrates the advisability of leaving
Judgment of the Court of Special Appeals reversed.
Case remanded to that court with directions that it affirm the order of the Circuit Court for Montgomery County.
Costs to be paid by respondent.
. We are referring, of course, to the story of King Solomon in the Bible. 1 Kings 8:16. The reluctance of appellate courts to play “super Solomon” was referred to in a recent decision of Pennsylvania’s intermediate appellate court. Commonwealth ex rel. Myers v. Myers, 237 Pa. Super. Ct. 192, 352 A. 2d 458, 459 (1975), rav'd. Pa. , 360 A. 2d 587 (1976).
. Mrs. Davis did not cross-appeal the custody award of John and Mary to Mr. Davis and, therefore, the only question before the Court of Special Appeals was the custody of Leigh.
. Since Rules 886 and 1086 are identical, what we say with respect to one is equally applicable to the other.
. We note that when it appears on review that the chancellor failed to take sufficient evidence into account, we may remand the case without affirmance or reversal for a redetermination, after further proceedings, as to what is in the best interests of the children. See, e.g., Ouellette v. Ouellete, 246 Md. 604, 608-09, 229 A. 2d 129, 131, (1967); Jester v. Jester, 246 Md. 162, 171, 228 A. 2d 829, 834 (1967); Md. Rule 871 a.
. Although the investigator’s report was never received into evidence, it is clear' from the record that both parties studied it and that the court thought it unnecessary to formally admit it into evidence at the December 11, 1975 hearing. Judge Latham remarked at that time:
It can be introduced and made a part of the evidence, if anybody wants to do it that way. On the other hand, it’s not necessary. I have fully read the report on several occasions, as I previously indicated, and whether I agree with everything it says or not remains to be seen.
No one contends that the report is not part of the record on appeal, and we treat it as though it had been formally admitted into evidence at trial. State Hwy. Adm. v. Transamerica Ins., 278 Md. 690, 701, 367 A. 2d 509, 516 (1976).
Reference
- Full Case Name
- MARY LOUISE DAVIS v. JOHN FRANKLIN DAVIS, JR
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- Published