Davis v. Davis

Digges, J., 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.” 1 The chancellor, properly assuming the duty of Solomon (as is his responsibility), awarded custody of the couple’s youngest child, Leigh, to the mother; however, the Court of Special Appeals ordered the young girl placed with her father. We now reverse that judgment and direct reinstatement of the chancellor’s order. 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. ¹²¹ Davis subsequently filed a cross-bill for divorce a mensa et thoro, for custody of the children, and for alimony and child support.

Following proceedings before a domestic relations master, the Circuit Court for Montgomery County (Cahoon, J.) in March 1975 ordered pendente lite that custody of John and Mary (the two oldest children) be awarded to Mr. Davis, that custody of Leigh be awarded to Mrs. Davis, and that Mr. Davis pay $175 per month for the maintenance and support of the youngest child. The matter was heard before Judge Richard B. Latham on May 21 and 22, and by order of July 8, 1975, the court granted Mr. Davis a divorce a vinculo matrimonii; however, the chancellor reserved ruling on the permanent custody of the children. After the submission of a court investigator’s report and recommendations, and following an additional hearing on December 11,1975, Judge Latham ordered that Mrs. Davis be awarded custody of Leigh, that Mr. Davis be awarded custody of John and Mary, and that Mr. Davis pay monthly $175 to Mrs. Davis for the support and maintenance of Leigh. 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. 2 Davis v. Davis, 33 Md. App. 295 , 364 A. 2d 130 (1976).

The court reasoned that it was “not bound by the clearly erroneous rule, Md. Rule 1086, but must exercise its own good judgment as to whether the conclusion of the chancellor is the best one,” id. at 301 [133], that Mrs. Davis was required, but had failed, to show “that she had repented and there was little likelihood of a recurrence of [her adulterous] actions,” id. at 302-03 [134], and therefore “that the chancellor was erroneous in his determination that the best interest of the child required that custody be continued in the mother.” Id. at 303 [134]. We granted certiorari. Because we disagree with both premises, as well as the conclusion, of the Court of Special Appeals, we shall reverse its judgment and reinstate the order of the chancellor. ¹²² (1) Standard of Appellate Review in Child Custody Cases 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. 3 In such actions, the appellate courts of this State “review the case upon both the law and the evidence, but the judgment of the lower court will not be set aside on the evidence unless clearly erroneous and due regard will be given to the opportunity of the lower court to judge the credibility of the witnesses.” Rule 886 & 1086.

The “clearly erroneous” concept is no newcomer to Maryland procedure: The predecessor of Rule 886 (adopted effective January 1, 1957 as Rule 886 a), General Rules of Practice and Procedure, Part Three, III, Rule 9 c (effective September 1,1944), contained the same scope of review embodied in the present rule; moreover, prior to the standard’s codification as a rule, it was the time-honored practice on appeals to this Court in equity actions to give great weight to the chancellor’s findings of fact. See, e.g., Garner v. Garner, 171 Md. 603, 614-15 , 190 A. 243, 249 (1937); Sporrer v. Ady, 150 Md. 60, 70 , 132 A. 376, 380 (1926). And we have heretofore noted that these rules in essence merely conformed the scope of review in nonjury actions at law to the scope of review we had always applied in equity appeals. See Greenberg v. Dunn, 245 Md. 651, 655 , 227 A. 2d 242, 244 (1967); Wallace v. Fowler, 183 Md. 97, 99 , 36 A. 2d 691, 692 (1944). ¹²³ Nothing in Rule 886 indicates that it does not apply to all cases tried without a jury, and we have explicitly held that the rule applies when we review nonjury criminal causes (under Rule 772), State v. Devers and Webster, 260 Md. 360, 381 , 272 A. 2d 794, 805 , cert. denied, 404 U. S. 824 (1971); Greene v. State, 229 Md. 432, 433 , 184 A. 2d 621, 622 (1962) (per curiam), nonjury defective delinquency cases, Johns v. Director, 239 Md. 411, 412 , 211 A. 2d 751, 752 (1965), child support awards, Wooddy v. Wooddy, 258 Md. 224, 228 , 265 A. 2d 467, 470 (1970), and child custody cases.

Hild v. Hild, 221 Md. 349, 359 , 157 A. 2d 442, 448 (1960). Since Hild we have consistently applied the “clearly erroneous” portion of Rule 886 (or that standard without citation to the rule) in our review of child custody awards. See, e.g., Hall v. Triche, 258 Md. 385, 386 , 266 A. 2d 20 (1970) (per curiam); 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); Franklin v. Franklin, 257 Md. 678, 684 , 264 A. 2d 829, 832 (1970); Kauten v. Kauten, 257 Md. 10, 12 , 261 A. 2d 759, 761 (1970); Hardisty v. Salerno, 255 Md. 436, 438 , 258 A. 2d 209, 210 (1969) (per curiam); Holcomb v. Holcomb, 255 Md. 86, 87-88 , 256 A. 2d 886, 887 (1969) (per curiam); Orndoff v. Orndoff, 252 Md. 519, 522 , 250 A. 2d 627, 628 (1969); Cornwell v. Cornwell, 244 Md. 674, 678 , 224 A. 2d 870, 872-73 (1966); Andrews v. Andrews, 242 Md. 143, 154 , 218 A. 2d 194, 201 (1966); Daubert v. Daubert, 239 Md. 303, 309 , 211 A. 2d 323, 327 (1965); Winter v. Crowley, 231 Md. 323, 329 , 190 A. 2d 87, 90 (1963); Parker v. Parker, 222 Md. 69, 75-76 , 158 A. 2d 607, 610 (1960). Moreover, even prior to our explicit recognition in Hild of the applicability of Rule 886, our predecessors in essence utilized the clearly erroneous standard when reviewing factual determinations on appeals of child custody actions.

See, e.g., Sewell v. Sewell, 218 Md. 63, 71 , 145 A. 2d 422, 426 (1958); Wilhelm v. Wilhelm, 214 Md. 80, 84 , 133 A. 2d 423, 425 (1957); Trudeau v. Trudeau, 204 Md. 214, 218 , 103 A. 2d 563, 564 (1954); Cullotta v. Cullotta, 193 Md. 374, 384 , 66 A. 2d 919, 924 (1949); Sibley v. Sibley, 187 Md. 358, 362 , 50 A. 2d 128, 130 (1946). ¹²⁴ Having determined that Rule 886 is controlling in child custody cases, we now consider the extent to which the “clearly erroneous” portion of it applies in such appeals. The words of the rule itself make plain that an appellate court cannot set aside factual findings unless they are clearly erroneous, and this is so even when the chancellor has not seen or heard the witnesses. Sewell v. Sewell, 218 Md. 63, 71 , 145 A. 2d 422, 426 (1958); see, e.g., Dorf v. Skolnik, 280 Md. 101, 117-118 , 371 A. 2d 1094, 1103 (1977); Chalkley v. Chalkley, 236 Md. 329, 333 , 203 A. 2d 877, 880 (1964). On the other hand, it is equally obvious that the “clearly erroneous” portion of Rule 886 does not apply to a trial court’s determinations of legal questions or conclusions of law based upon findings of fact.

See, e.g., Clemson v. Butler Aviation, 266 Md. 666, 671 , 296 A. 2d 419, 422 (1972); A. S. Abell v. Skeen, 265 Md. 53, 55 , 288 A. 2d 596, 597 (1972). 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, 224 ¹²⁵ (1976), that appellate courts must exercise their “own sound judgment” in determining whether the conclusion of the chancellor was the best one.

Quite to the contrary, it is within the sound discretion of the chancellor to award custody according to the exigencies of each case, Miller v. Miller, 191 Md. 396, 407 , 62 A. 2d 293, 298 (1948), and as our decisions indicate, a reviewing court may interfere with such a determination only on a clear showing of abuse of that discretion. See, e.g., Pontorno v. Pontorno, 257 Md. 576, 581 , 263 A. 2d 820, 822 (1970); Neuwiller v. Neuwiller, 257 Md. 285, 287 , 262 A. 2d 736, 737 (1970); Kauten v. Kauten, supra, 257 Md. at 13, 261 A. 2d at 761 ; Wood v. Wood, 227 Md. 112, 115 , 175 A. 2d 573 , 575 (1961); Oliver v. Oliver, 217 Md. 222, 230 , 140 A. 2d 908, 912 (1958); cf. Dorsett v, Dorsett, 281 A. 2d 290, 292 (D.C. 1971) (great deference accorded trial judge in child custody cases; no abuse of discretion found); Dinkel v. Dinkel, 322 So. 2d 22, 24 (Fla. 1975) (custody determination not reversible except on showing of abuse of discretion); Kauffman v. Kauffman, 30 Ill.App.3d 159 , 333 N.E.2d 695, 697 (1975) (custody finding not reversible unless against manifest weight of evidence or “clearly contrary” to best interests of child); Feldman v. Feldman, 55 Mich. App. 147 , 222 N.W.2d 2, 3 (1974) (child custody determination not disturbed unless factual findings against great weight of evidence or unless there is abuse of discretion or clear legal error); Pendergraft v. Pendergraft, 23 N.C. App. 307 , 208 S.E.2d 887, 889 (1974) (custody award not reversed except on showing of abuse of discretion). See generally 2 W. Nelson, Divorce and Annulment § 15.50 (2d ed. 1961 rev.).

Such broad discretion is vested in the chancellor because only he sees the witnesses and the parties, hears the testimony, and has the opportunity to speak with the child; he is in a far better position than is an appellate court, which has only a cold record before it, to weigh the evidence and determine what disposition will best promote the welfare of the minor. 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 886 ¹²⁶ and 1086 applies 4 If it appears that the chancellor erred as to matters of law, further proceedings in the trial court will ordinarily be required unless the error is determined to be harmless. Finally, when the appellate court views the ultimate conclusion of the chancellor founded upon sound legal principles and based upon factual findings that are not clearly erroneous, the chancellor’s decision should be disturbed only if there has been a clear abuse of discretion.

(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