Neuwiller v. Neuwiller

262 A.2d 736, 257 Md. 285, 1970 Md. LEXIS 1309

• Court: Court of Appeals of Maryland
• Decided: March 9, 1970
• Docket: [No. 253, September Term, 1969.]
• Status: Published

Opinions

Finan, J.,

delivered the opinion of the Court. Barnes, J., dissents. Dissenting opinion at page 287 infra.

This case is before us on appeal from a decision of the Circuit Court for Baltimore County which granted custody of a couple’s two year old son to the mother, the appellee. The parties to this dispute, Thomas and Bonnie Neuwiller, were married March 29, 1965. In July of 1968, the parties were no longer living with each other. The husband in September, 1968, instituted a divorce proceeding alleging the adultery of his wife. On June 30, 1969, Judge Maguire granted the appellant a divorce a vinculo matrimonii and awarded custody to the mother. This appeal is from the custody decision.

The testimony at the hearing revealed that the mother of the child was twenty-seven and the father forty-one. Each had steady employment and was able to provide for the needs of the child. The appellee left the child with her 68 year old mother during the day while she was at work. The father introduced a neighbor who testified that she would be willing to take care of the child during the day if the father was awarded custody.

The trial court found that following her separation from her husband in July, 1968, the appellee did engage in adulterous conduct. There was also sufficient evidence to indicate that she had performed an abortion.

In granting custody to the mother, Judge Maguire made it clear that he was not overwhelmed with the character of the wife. However he felt that her adulterous conduct was not determinative of the central issue which in any custody case is who will further the best interests of the child. Recent Maryland cases clearly support this position. See Kauten v. Kauten, 257 Md. 10, 261 A. 2d 759 (1970) ; Orndoff v. Orndoff, 252 Md. 519, 250 A. 2d 627 (1968) ; and Cornwell v. Cornwell, 244 Md. 674, 224 A. 2d 870 (1966). Although the evidence is not as clear as the Court should like to see it that the mother had definitely ceased her relationship with the paramour, yet, Judge Maguire did note that she had not associated with him for the past few months. We might add that custody awards are never final. If at any time there is sufficient evidence to indicate that the mother’s behavior is having an adverse effect on the child, the court should not hesitate to change custody. In this case, we are satisfied that the lower court was duly impressed by the fact that the child was only two years old. The court affirmatively noted that there was no evidence to indicate that the mother had not properly cared for the child. These factors obviously convinced the chancellor that there was not sufficient evidence to rebut the normal presumption that a young child should not be taken from its mother. Kauten, supra, and Breault v. Breault, 250, Md. 173, 180, 242 A. 2d 116 (1968).

In the present posture of the case we cannot find that the chancellor abused his discretion especially since he had the parties and witnesses before him. Orndoff, supra; Daubert v. Daubert, 239 Md. 303, 211 A. 2d 323 (1965) ; and Sibley v. Sibley, 187 Md. 358, 50 A. 2d 128 (1946).

Decree affirmed, appellant to pay costs.