Dietrich v. Anderson

Melvin, J., delivered the opinion of the Court. This case involves the custody of a child, Sandra Anne Anderson, whose parents were but seventeen years old when she was born (August 19, 1989), and were married while high school pupils in Council Bluffs, Iowa. Being totally unprepared for the duties and obligations of parenthood, the young father (the appellee here), who chose not to be diverted from his career as a student but continued on in that role from high school to college, soon found himself without wife or child. They separated in May, 1940, at Kingsport, Tennessee, the mother and infant leaving, without the father’s knowledge, for Towson, Maryland, and the father, a few days later, going back to Nebraska.

The purpose of the mother’s visit to Towson, as subsequently revealed, was to join her sister and their mother who, with the sister’s husband, were then living in an apartment in the home of Mr. and Mrs. John D. Dietrich, the appellants in the instant case. It was during this visit that the latter were asked, .so they testified, to take over the care and custody of the infant, Sandra, with a view to adopting her. The mother did not appear as a witness, nor did her sister and brother-in-law, who must have been thoroughly conversant with Sandra’s status in this home, so that on the record before us it is uncontradicted that she was placed with the Dietrichs under the circumstances related by them. When the child’s mother and grandmother returned to their home in Council Bluffs, Iowa,' in July, 1940, they left Sandra, then ten months old, with the Dietrichs and she has been there ever since.

She has had no other home ¹⁰⁷ and has known no parents- other than Mr. and Mrs. Dietrich, who had no children of their own. It is undisputed—in fact, it is conceded and emphasized throughout the successive stages of these proceedings—-that this home, located in a delightful suburban environment, has left nothing to be desired in the way of wholesome, material advantages, and that in it this infant has developed into a happy, healthy child under the loving care and devotion of these foster parents who are, themselves, respected and substantial citizens of high moral character. Under date of March 14, 1941, Mr. and Mrs. Dietrich filed a petition in the Circuit Court for Baltimore County under Section 85 of Article 16 of the Code, 1939, asking the court to assume jurisdiction of the infant, Sandra Anne Anderson, and to award them temporary custody of her. This petition was based on the allegations, mainly, that the infant’s mother and maternal grandmother requested the petitioners, in May, 1940, to care for and adopt her; that having no children of their own, and being desirous of having a child'in the home, they agreed to this upon the mother’s promise that immediately upon her return to Council Bluffs she would institute divorce proceedings against her husband, obtain custody of the child, and then consent to the adoption proceedings in Baltimore County; that “the father of the infant is in the military service and apparently has no interest in the child” (it was later disclosed that he was then a student at the University of Tennessee) ; that the mother has no means of support and no home of her own; that within a few days prior to the filing of the petition two letters had been received from the mother, threatening to come to Baltimore and take the child; that from their knowledge of the parents, petitioners believe it would be unfair to the infant to permit it to be taken from them by the mother, and that “the safety, welfare and best interests of the child demand that this court assume jurisdiction over it at this time, to the end that a full investigation ¹⁰⁸ might be made by this court and its permanent custody later determined.” On this petition the court passed an order assuming jurisdiction and control of the infant, and awarding temporary custody to the petitioners “with leave to the parents, or either of them, to move for a recission of this order at any time.” Under date of March 20, 1941, the infant’s mother, Geraldine Anne Anderson, filed a demurrer and answer to this petition, asking that the child’s custody be awarded to her, instead of to the petitioners.

The matter of this petition and answer was set for hearing in open court, and for four days during the first week in June, 1941, the hearings were conducted before the Chancellor (the late Judge William H. Lawrence). All parties in interest, including the parents of the infant, appeared in person and were represented by counsel. As a result of these hearings, the court on June 10, 1941, entered a decree awarding the custody of the infant, Sandra Anne Anderson, to the petitioners, John D. Dietrich and Mae Marsh Dietrich, his wife, and assigning jurisdiction over said infant, subject to the further order of the court. No appeal was taken from this decree, and its provisions, including, specifically, the assuming of jurisdiction, were not questioned on the record until June 13, 1944, when the father of the infant, Garnet W. Anderson, Jr., filed a petition in the original proceedings, asking that this court vacate its aforesaid order of June 10, 1941, on the ground that it was without jurisdiction to pass it, and alleging that the State of Virginia, and not the State of Maryland, was, and is, the legal domicile of the infant.

The petition further alleges that the material and financial circumstances of the petitioner are now such that he is able to provide a suitable home and proper environment for his infant daughter, so that she can live with him and his mother in Memphis, Tennessee, in quarters which he will provide for them. He contends that “under the present circumstances, peti ¹⁰⁹ tioner, as parent and natural guardian of the infant, Sandra Anne Anderson, is entitled to be awarded the custody of his daughter.” It is shown by the petition, and not disputed in the case, that since October, 1941, the petitioner has been in active service in the Army Air Corps; that for seventeen months until January, 1944, he was in foreign service as an air pilot; that he has made a meritorious and distinguished record in that service, and has been promoted to the rank of captain. Since September 25, 1944, he has been on duty at Memphis, Tennessee, where he expects to be stationed “for an extended period” at the Memphis Air Base. To this petition Mr. and Mrs. Dietrich filed a demurrer averring, in substance, that the petitioner assigns no material change of circumstances arising after the decree of June 10, 1941, legally justifying a modification of the decree for change of custody of the infant, Sandra Anne Anderson, and that “the question of jurisdiction of this court to pass this decree of June 10, 1941, as well as the legal domicile of the child, Sandra Anne Anderson, is res adjudicata.” The court (Judge Murray) on November 28,1944, sustained the demurrer on “the question of the jurisdiction of this court to hear and determine this cause and to assume jurisdiction over said infant.” The demurrer as to all other grounds was overruled and the respondents granted leave to answer the remaining averments.

This they did at length by referring in detail to the proceedings in June, 1941, leading up to the passage of the decree of June 10, 1941, and relating the progress made by the infant Sandra while in their home, without any help or contribution of any kind from, or interest shown by, the father or mother, since she was left with the respondents in 1940. On this petition and answer the court of equity again heard voluminous testimony on the conflicting claims to this infant’s custody. Whereas, in June, 1941, the principal contestant against the Dietrichs was the young mother on the allegation that the father apparently had ¹¹⁰ no interest in the child, at the hearing in June, 1944, it was the father who, for the first time, assumed the role of active claimant against the Dietrichs, and did so on the allegation, among others, that “she (the mother) has abandoned all claim to the care and custody of the infant, Sandra Anne Anderson.” At this last hearing, the chancellor pointed out that the “material and vital testimony” to be adduced before him “would be that which would affect the standing of the parties since the decree of Judge Lawrence,” to which observation senior counsel for the petitioner responded, according to the record, “We are in entire agreement with Your Honor’s ruling.” We concur in this limitation of the scope of the testimony and will confine our review of it to the single point of ascertaining whether or not there has been such a substantial change of circumstances affecting, or likely to affect, the welfare of the infant child, as would justify the court in annulling, varying or modifying its original decree. The chancellor came to the conclusion, after the hearing before him in December, 1944, that the testimony did show such a change of circumstances and accordingly, under date of January 8, 1945, entered a decree setting .aside the decree of June 10, 1941, and awarding the custody of the infant child, Sandra Anne Anderson, to the petitioner, Garnet W. Anderson, Jr., her father.

It is from this decree that Mr. and Mrs. Dietrich have appealed, the order for appeal being filed on January 11, 1945. By leave of court, the child’s mother, who was divorced from the appellee in Iowa on June 30, 1941, and has since “remarried, intervened on this appeal as “amicus curiae.” She has taken the position that it would be contrary to the child’s best interests to have her custody awarded to the appellee, urging that it be continued with the appellants until such time in the indefinite future as she (the mother) may be able to provide a home for her. ¹¹¹ On February 28, 1945, the appellants presented to the court a petition for review of the decree of January 8, 1945, together with numerous affidavits which were offered in support of certain alleged newly discovered evidence reflecting on the character of the appellee and his parents. The court that same day passed an order denying leave to file said petition; whereupon the petitioners entered their appeal from this second order, while the first one was still pending. The appellee, in due course, filed a motion to dismiss this appeal from the order of February 28, 1945, and also a motion to dismiss the appeal from the order filed January 8, 1945.

We find no difficulty in disposing of the motion first mentioned, for the mere statement of the ground of it shows the non-appealability of the court’s order. This ground is: “An appeal from the order of January 8 having been entered on January 11, 1945, and being still pending, the Circuit Court was without power to entertain the said petition for a review on February 28, 1945, * * This point is well taken, for the authority cited in the motion, Eastern States Corporation v. Eisler, 181 Md. 526 , 30 A. 2d 867, 871 , is conclusive of it. As there held, all jurisdiction of the chancellor ceases upon the filing of an appeal from a final order in a case pending before him, and he has no jurisdiction to pass any further order in the case, with certain exceptions not here material. See also Collier v. Collier, 182 Md. 82 , 32 A. 2d 469 .

If, as contended by the appellants, this newly discovered evidence called for a review of the former decree, they would still have the opportunity of presenting their petition, even in the event the order first appealed from should be affirmed. As pointed out by this Court in Safe Deposit & Trust Co. v. Gittings, 102 Md. 456, 464 , 62 A. 1030, 1033 , 4 L. R. A., N. S., 865, 5 Ann. Cas. 941, citing Pinkney, Administrator v. Jay et al., 12 Gill & J. 69, “a bill of review for newly discovered evidence will lie in the lower court after affirmance on appeal, and we know of no principle which would discrimi ¹¹² nate in this regard between an affirmance and a reversal of the decree of the lower court.” However, as construed by the Court in the Eisler and Collier cases, supra, the limitation upon this power of the court of chancery is that, pending an appeal from a former decree, it has no jurisdiction to take further action in the case. The appellee’s motion to dismiss the appeal from the order of February 28, 1945, is therefore granted. This ruling excludes from the Court’s consideration of the merits of the case the exhibits filed with the petition.

In passing upon this appeal we assume, of course, that the persons mentioned in the exhibits are innocent of the accusations therein made against them. The other motion filed by the appellee, namely, to dismiss the appeal from the order of January 8, 1945, is likewise free from difficulty but it calls for a different ruling. The grounds of the motion are, in substance, that Mr. and Mrs. Dietrich are not within the class of persons permitted by the statute (Art. 5, Sec.' 31) to appeal from an order of court in a child custody matter; that an order awarding custody under the provisions of Article 16, Section 85, of the Code, being subject to the further order of the court, is not a final order within the meaning of the statutes relating to appeals in equity; that the appellants, not being related in any way to the infant in question, have no personal or pecuniary right in her custody sufficient to support an appeal; that no person, other than a “parent, grand-parent or natural guardian, has ever been permitted by this court to appeal from an order depriving him of the custody of an infant.” The complete answer to this motion is that the appeal in this case is fully authorized by Sec. 30 of Art. 5 of the Code, 1939, which provides that “An appeal shall be allowed from any final decree, or order in the nature of a final decree, passed by a court of equity by any one or more of the persons parties to the suit,* * *.” Nothing could be plainer than the qualification of Mr. and Mrs. ¹¹³ Dietrich as “persons parties to the suit,” or that the chancellor’s order of January 8, 1945, is a final decree, or “order in the nature of a final decree.” While it is true that the jurisdiction of a court of equity in child custody cases is a continuing, supervisory one, an order awarding custody may be “final” as to the facts before the court, although not permanent. Pangle v. Pangle, 134 Md. 166 , 106 A. 337 .

Furthermore, when the court passes an order, as it did in the instant case, completely terminating its jurisdiction over an infant and awarding the custody to one who avowedly will immediately take the child out of the State of Maryland, it is too clear for comment that this is a final order within the meaning of the statute. The appellee has earnestly challenged the jurisdiction of the court to pass its decree of June 10, 1941, by which the custody of the child in question was awarded to Mr. and Mrs. Dietrich. That is the first ground of his petition in the pending proceeding. While the court is indebted to counsel for a very thorough and able brief on this subject, we are unable to find any merit in the point.

It is not a question on this appeal of interstate jurisdiction in child custody cases. It is, rather, one of deciding whether the decree of a court of equity in Maryland, awarding custody of a child then before it in an appropriate statutory proceeding, should be set aside by this same court several years later on the petition of a party in interest who had appeared in person and by counsel at the original hearing, and who did not appeal from the court’s decree. The authorities cited