Coleman v. Coleman

Bruñe, C. J., delivered the opinion of the Court. This is an appeal from an order of an equity court entered in proceedings initiated by the appellant mother seeking custody of the eleven-year-old son of the parties, which awarded custody of the boy to the appellee father. The parties separated early in February, 1961, this suit was filed on March 17, 1961, and on some date not shown by the record extract, 1 but before May 5, 1961, the appellant filed a bill in the same court seeking a divorce a mensa and custody of the child. By agreement of counsel, both the bill for custody (this suit) and the wife’s prayer for alimony pendente lite were referred to a Master for report on May 5, ⁶¹² 1961.

A report was requested by the Master from the Probation Office of the Division for Juvenile Causes of the Circuit Court of Baltimore City. A probation officer submitted a report, which was approved by her superior, recommending that custody be awarded the mother, and this recommendation was adopted by the Master. The Master’s report states that he was informed that by coincidence the wife’s earlier bill for custody and her petition for alimony had been scheduled for hearing in court on the same day. For some reason which is not wholly clear (perhaps partly because of a change in counsel for the appellee) the two cases were not later heard together, and the custody case came on for hearing first.

We were informed at the argument that the wife’s divorce suit has not yet been heard, that after the filing of the opinion but the day before the entry of the order in the custody case which is here appealed from, the appellee filed a cross-bill for a divorce a mensa, and that both the bill and the cross-bill are scheduled for early hearing in the trial court. Consideration of these statements seems proper for much the same reasons of practical necessity which lead us to consider matters occurring subsequent to a trial, and hence not in the record, which render a •case moot. The record in this case shows that at a number of points 'the scope of testimony was limited so as to exclude matters •pertaining to the causes of separation of the parties which were regarded as relevant to the divorce proceeding but as not bearing directly upon the question of custody. The evident purpose of such exclusion was to avoid the introduction of evidence which might be prejudicial to either party in the divorce ¡suit then pending but still awaiting trial.

Since the question of ■custody turns on what appears to be for the best interests of •the child, we think that this ruling, despite the intention to be iair which underlay it, excluded evidence pertinent to the custody case. The practical difficulty, if not impossibility, of effecting such a separation of evidence as that here attempted is apparent in this record. Testimony as to the conduct or condition of the respective parties may be of greater importance in the divorce case than in the custody case, but it may still be ⁶¹³ of great relevance in the determination of the custody case. It may have a direct bearing in determining to which parent custody should be awarded, and (without intimating that this would be so in this particular case) it might have a direct bearing on whether custody should be awarded to either of them or to