Barsallo v. Barsallo

Carter, J., delivered the opinion of the Court. The appellant, Orlando A. Barsallo (husband), filed a petition in the Circuit Court for Montgomery County requesting modification of a prior custody decree so as to permit his eight (now nine) year old daughter (Rosalia) to visit him one month a year at his home in Panama City, Panama. The petition was denied. He contends that the Chancellor erred: (1) in considering matters that were neither raised in the pleadings nor adduced in evidence, and (2) in denying the relief sought as not being best for the welfare, benefit and interest of the child.

Pursuant to the authority conferred by Md. Rule 1026 g, the parties, with the approval of the lower court, prepared and signed a statement of the case in lieu of the pleadings and evidence. In accordance with the Rule the statement shows how the questions to be determined arose and were decided. It also sets forth so much of the facts proven and sought to be proven as are essential to a decision of the questions to be determined by this Court. Under the Rule the statement supersedes, for the purpose of this appeal, all parts of the record other than the Chancellor’s order and the Master’s report which are annexed to the statement.

The statement, order and report show the following. FACTS ALLEGED AND PROVEN The parties were married April 15, 1963 and divorced on June 6,1967. One child, Rosalia, was born of the marriage on April 12, 1964. The divorce decree awarded custody of the infant daughter of the parties (then three years of age) to ⁵⁶² the appellee, Jacqueline R. Barsallo (wife).

The decree further provided, inter alia, that the husband should have the right to visit with the child every Sunday afternoon. On alternate Sundays he was privileged to take her from the wife’s home during visiting hours. The husband, who was living in Maryland at the time of the decree, fully exercised his visitation rights and complied with the decree until August 1969. At that time, being a citizen of the Republic of Panama, he returned to his native land to accept a position as an attorney with the Panamanian government.

By reason of these changed circumstances, he was unable to take advantage of his visitation privileges. Since moving to Panama in 1969, he has visited his daughter each summer in Maryland. On January 6,1972, he filed a petition to have the decree modified so as to allow his daughter to visit him at his home in Panama City, Panama, one month each summer during her vacation from school. Pursuant to the petition, the court passed a show cause order and the wife answered, objecting to any change in the visitation privileges.

The petition and answer were duly heard by the Domestic Relations Master. Three witnesses, including each of the parties and the wife’s mother, testified at the hearing. Thereafter the Master filed his report which was excepted to by the husband. The Chancellor overruled the exceptions and adopted the Master’s findings of fact and the reasons for his recommendation that the husband’s petition be denied. 1 FACTS SOUGHT TO BE PROVEN According to the “statement of the case” the husband’s testimony showed the following: (1) that since moving to Panama, he has remarried and is presently living with his thirty-two year old wife in a two bedroom apartment; (2) that if the child were to visit with him, she would have her own bedroom; (3) that he planned to arrange his vacation to coincide with his daughter’s thirty day visit to Panama; (4) ⁵⁶³ that the daughter would visit her paternal grandfather’s farm outside of Panama City and have an opportunity to play with the animals raised there; (5) that the child would be able to play with her cousins of the same age; (6) that letters introduced in evidence written by the daughter to him expressed her love for her father and members of his family; (7) that the child would have an opportunity to be with her father and his family in their surroundings uninterruptedly for a thirty day period; (8) that the child would be exposed to a new language and culture and thus enabled to broaden her education; (9) that the child, according to both her parents, was very bright; (10) that his trips to the United States pose a financial burden and when he does see his daughter it is for only a few hours at a time; (11) that according to the wife’s testimony she characterized him as being a good and honorable man and encouraged contact between the child and himself; and (12) that he would return the child after the thirty day visitation period had ended.

The “statement” also showed that the wife opposed the petition for the following reasons. (1) She had some concern that the husband would not return the child at the expiration of the thirty day period. She could not, however, give any instances which indicated the husband’s intention not to return the child, except that in 1965 he had stated he would like to have the child reared by his mother in Panama. (2) The husband could not afford an adult companion to accompany the child to and from Panama.

(3) She had apprehension concerning the child’s religion inasmuch as she was Jewish and the husband was Catholic. (4) The child has a problem with her eyes that requires her to see a doctor every six months. MASTER’S REPORT AND RECOMMENDATION The Master, in his report, found that the husband’s net monthly income was $532.80 and that the earnings of his present wife amounted to $350 a month. He also recognized that the husband had submitted an itemized statement of his monthly expenses in the total sum of $747.

In evaluating ⁵⁶⁴ the wife’s opposition to the petition, he rejected her reasons (1), (3) and (4) as enumerated above. In so doing he found under (1) that she had failed to establish, to his satisfaction, any present intention of the husband to keep the child in Panama and have her reared by his mother. In this connection he found that the wife’s characterization of the husband as a “good and honorable” man negated the likelihood of any such intention. In dealing with (3) he found that the wife’s apprehension in regard to the child’s religion was not justified.

In this connection he pointed out that the husband testified he believed it best for the child that she be raised in the Jewish faith of her mother. In disposing of (4) he found that the child’s eye condition would not prevent her from visiting her father because there were adequate medical services available in Panama. In regard to (2) he refused to take judicial notice of the fact that airlines take special care of unescorted minors traveling with them. 2 The basis for the Master’s recommendation that the husband’s petition be denied is reflected in the following portion of his report: “ * * * The flight will be made through the Miami International Airport, to connect with a flight from there to Panama City, Panama. Necessarily, the latter leg of the flight will be over water (Caribbean).

In the opinion of the Master, there would be certain hazards attendant with such a flight for so young a girl [eight years of age]. The language in Panama is Spanish, and there was no showing at the hearing * * * that the child is conversant with that language. There could be problems develop in this regard in the event the child was not met at the airport by her father or some member of his family able to speak English. In addition, when one is considering the welfare of the child, it is almost impossible to overlook the possibility of air piracy or hijacking of planes, ⁵⁶⁵ especially, those which have recently occurred on the runs to Florida and Miami.

Not long ago, an air passenger was killed in an exchange of gunfire between agents of the government and air pirates. Indeed it seems that neither the airlines nor the Federal Government have been able to put a halt to these acts in this country. “* * * [T]he Master is of the opinion that the child is too young and immature at this point in time to be permitted to undertake the travel alone. As the child grows older, and travel conditions become more secure, the matter could well be reconsidered, perhaps in two or three years.” I FINDINGS OF FACT In speaking of the review by this Court of matters involving child custody, which ordinarily includes the right of visitation, we said in Widdoes v. Widdoes, 12 Md. App. 225 at 233 , 278 A. 2d 100 : “* * * In our review the clearly erroneous rule applies to the chancellor’s factual findings. But for the reasons set out in Sullivan v. Auslaender, 12 Md. App. 1 , we must exercise our best judgment in determining whether the conclusion as to custody the chancellor reached on those facts was the best one, best, that is, for the welfare, benefit and interest of the child.” See also Kirstukas v. Kirstukas, 14 Md. App. 190, 193-194 , 286 A. 2d 535 .

The appellant contends that the Chancellor erred in considering the possibility of air piracy, hijacking, and the killing of passengers on flights to Miami. It is conceded that these facts were neither alleged in the pleadings nor established by the evidence. 3 The appellee (wife) claims, ⁵⁶⁶ however, that such facts were properly considered by the Chancellor because they were matters of which he could take judicial notice. In discussing the matter of judicial notice, the Court of Appeals said in Hettleman v. Frank, 136 Md. 351, 363 , 110 A. 715 : “* * * ‘Courts should take [judicial] notice of whatever is or ought to be generally known, within the limits of their jurisdiction, for justice does not require that Courts profess to be more ignorant than the rest of mankind,’ * * See also Johnson v. State, 8 Md. App. 28, 34 (footnote 3), 257 A. 2d 756 . In 29 Am.

Jur. 2d, Evidence § 22, it is stated: “Generally speaking, in order that a fact may be