Cornwell v. Cornwell

224 A.2d 870, 244 Md. 674
CourtCourt of Appeals of Maryland
DecidedJanuary 9, 1967
Docket[No. 205, September Term, 1966.]
StatusPublished
Cited by33 cases

This text of 224 A.2d 870 (Cornwell v. Cornwell) is published on Counsel Stack Legal Research, covering Court of Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cornwell v. Cornwell, 224 A.2d 870, 244 Md. 674 (Md. 1967).

Opinions

Marbury, J.,

delivered the majority opinion of the Court. Barnes, J., dissents. Dissenting opinion at page 680, infra.

[676]*676This is an appeal from a decree of the Circuit Court for Harford County (Stewart Day, C.J.), dated February 25, 1966, which ordered a change in custody of the two daughters of the parties from one of the divorced parents, the father, to the other, the mother. From this decree the father has appealed.

The marriage, which produced the two daughters, had an unsettled history. The appellee, Anna May Gordon Cornwell, who was sixteen or seventeen years old at the time, married Seldon A. Cornwell, appellant, on April 25, 1952, in Maryland. Following the marriage, the parties moved to Florida where the husband was stationed in the Marine Corps. On December 8, 1953, the first of the two children was born in Florida. After the husband was discharged from the Marines in February 1954, the family returned to Maryland, where appellant had a succession of jobs and where they lived in a number of different places from that time until they purchased a house in Street, Maryland, in December 1958. In June 1955, because of continuous domestic strife, the wife left her husband and went to Florida, allegedly with another man, leaving her infant daughter with an acquaintance while appellant was at work. She failed to notify him of where she had left the child and, as a consequence, he did not learn of the location of his daughter until two weeks later. There was a reconciliation six months subsequently, and the parties lived together for nearly seven years. On September 1, 1956, the second daughter was born.

There was testimony by an acquaintance of the wife, that she and the wife on two occasions met men in various bars in the winter of 1961 or 1962. In early 1962 the parties again separated, the wife leaving the husband and the two children. The cause of this separation is not clear. Appellant claimed it was because of a letter which spoke of a date which another man had with the appellee. Later, in June of 1962, appellee obtained a court order awarding her custody of the children. After three or four months, appellee lost her job, and the parties attempted to effect a reconciliation which lasted only a couple of weeks. They separated again, and the children remained with the appellant, because appellee was unemployed and had no sufficient accommodations in which to keep her children.

[677]*677On November 5, 1962 or 1963, appellee was seen leaving a motel room with another man early that morning by appellant’s sister who had been called to the scene by appellant. Appellant had noticed his wife’s car parked in front of the motel. Again, a friend and fellow employee of appellant and appellant saw his wife nude in a motel room with another man with whom she had allegedly been living for some time prior to this incident. Apparently, this was the final straw, as the parties were divorced on September 8, 1964, the divorce being based on the ground of the wife’s abandonment. The decree awarded custody of the children to the father subject to further order of the court. At that time the wife lived in a boarding house and worked as a waitress, which job did not pay her enough to maintain herself and the two children. The history of the relationship between the parties after the divorce shows a continuous conflict over visitation rights and privileges.

On April 17, 1965, appellee married a man whom she had met in August 1964, and with whom she had been seen spending the night of March 25, 1965, in his trailer. On August 24, 1965, appellee filed a petition for the custody of the two daughters on the basis that she now had a new, three bedroom house, had settled down, and could provide a wholesome environment for her children.

The hearing on the petition lasted three days, November 19, 22-23, 1965, and the chancellor heard numerous witnesses; with the consent of counsel for both parties, spoke in private with the two daughters who stated that they loved both parents equally; and later received an oral report from the probation department. The chancellor found that appellant, who worked during the day and was off only on Mondays and Tuesdays, left his children to be cared for by his elderly parents with whom he and the children were living in a farm house. The appellant’s mother was sixty-eight years old and had a chronic back condition. His father was sixty-seven years old and was hard of hearing. Appellant’s divorced sister, who had children of her own and who sometimes cared for appellant’s daughters while she lived at the farm house, had moved out of the house and was living nearby. Appellant told the chancellor that he intended to marry again and move into a trailer. The children [678]*678told the chancellor that they disliked the prospective stepmother, and the father informed the court that he would not marry her if the children did not really like her. At the oral argument on appeal it was admitted that subsequent to the hearing he had married her. The chancellor was unable to determine if the farm house in which the appellant and the children were living was adequate for the needs of the number of people living within it. He found the sleeping arrangements makeshift at best.

Appellee showed that she and her second husband had recently purchased a new, nicely furnished house with three bedrooms, that she was not employed in a job outside of the home, and that she would have time to give sufficient attention to her children. The chancellor found that appellee’s new husband was steadily employed and had a good income, and that his attitude toward the girls was excellent. The two daughters liked him. The chancellor also found that the mother greatly desired to have her daughters with her, and that she had mended her former ways and was fit to bring up her daughters properly. Chief Judge Day, on the strength of the probation officer’s oral report, which recommended that the mother have custody, and by his own determination, concluded that since the two daughters were approaching adolescence, the mother’s understanding and maturity were greatly needed.

The record before this Court does not contain the probation department’s report received by the chancellor. The report, or at least a sufficient summary of it, should have been in writing and have been available to counsel for both parties prior to the chancellor’s decision. However, neither counsel insisted upon its being reduced to writing in order to test its accuracy in the court below. As a consequence there is nothing before us for •review in that regard. Maryland Rule 885. There is a partial summary of the findings of the probation department in the opinion of the court below, and a review of the record before us indicates that the chancellor was not clearly erroneous in awarding custody of the children to the mother. Rule 886 a.

It is universally recognized that the mother is the natural custodian of her young. Accordingly, the mother is ordinarily awarded the custody of children of tender age, especially girls, [679]*679unless it is clearly shown that she it not a fit and proper person. Sellman v. Sellman, 236 Md. 1, 202 A. 2d 372; Oliver v. Oliver, 217 Md. 222, 140 A. 2d 908; Porter v. Porter, 168 Md. 296, 177 Atl. 464.

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Bluebook (online)
224 A.2d 870, 244 Md. 674, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cornwell-v-cornwell-md-1967.