England v. Megear

Thomas, J., delivered the opinion of the Court. This appeal is by the father from an order of the Circuit Court of Baltimore City permitting his sou, now about thirteen years of age, to visit the child’s, mother in New York City, from whom the father was divorced a vinculo matrimonii. On the 3rd of April, 1917, the court below passed a decree divorcing the appellant from the appellee, and, in accordance with an agreement between the appellant and the appellee, the court further decreed that the custody of Joseph Townsend England, Jr., their minor child, should be “vested equally in” the appellant and appellee; that said child should not be removed from the State of Maryland “except under the order of” the court; that the court retained jurisdiction in the case for the purpose of passing such further order in regard to the custody and care of such infant as might appear to be for his benefit and advantage; that the “legal guardianship of said” infant “be vested in Joseph T. England,” the plaintiff, and that he be charged with his maintenance and support. The appellant and the appellee were members of the Proteestant Episcopal Church, and prior to their separation attended Mt.

Calvary Church, in Baltimore City. After their separation, the appellee went to live with her mother, and the appellant, his maiden aunt, and his child, ha^e lived in Baltimore City. The child attended Sunday school and the ⁵⁷⁶ choir at Mount Calvary Church, and was confirmed in that church in 1920. In the fall of 1922 he was sent to the Donaldson School, which is a church school, connected with and under the control of Mount Calvary Church, where he is given religious training in accordance with the teaching' and doctrines of the Protestant Episcopal Church.

Ever since the separation of the appellant and appellee the child has spent a part of his vacations with his mother, either at her home in New York .or elsewhere. In October, 1923, the appellee married Thomas J. Megear, a resident of New York City, who was a divorced man, and is now living with her said husband in the City of New York. In November, 1923, the appellee wrote to the appellant with the view of having their child spending a part of his Christmas vacation with her in New York, but the appellant replied that he was not willing for him to do so, whereupon the appellee filed a petition in the court below praying the court to pass an order authorizing the said Joseph T. England, Jr., to visit her in New York on the 2nd of January, 1924, provided he was returned to his school on or before January 8th, “when the school opened after the holidays.” The appellant filed an answer to said petition, and also a cross-petition, in which, after referring to the provisions of the decree of 1917, he alleged: “2. That subsequent to the passage o£ said decree it was agreed between the parties hereto that the actual custody of said child should be given to the father, and that ever since the passage of said decree * * * your petitioner has had the actual custody of his son.

It was also agreed between the parents that the religious training and education of said son should be in accordance with the teaching and doctrine of the Protestant Episcopal Church, and that he should be sent to a school identified with that church where he would receive a religious training of the kind desired. This agreement was made at the earnest request of the father and that the mother fully consented thereto, and that, in accordance therewith, the infant son above mentioned has for some time been a student at the ⁵⁷⁷ Donaldson School, which is a school conducted by persons identified with the church above mentioned and where the boy is receiving a religious training in accordance with the teachings and doctrine of said church. “3. That for some years past the defendant has lived in the City of New York; that she has visited her son in Baltimore, and that the son has been permitted to spend a portion of his holidays with his mother, hut that recently and since the last visit of the son to the home of his mother in New York, said mother has remarried with a certain Thomas J. Megear, who is himself a divorced man, and that the defendant, a divorced woman and the party at fault in the divorce case and against whom the divorce »vas decreed, having remarried with a man himself also divorced, is necessarily leading a home life entirely incompatible with the teaching and doctrine of the Protestant Episcopal Church, and that to permit the plantiiFs son, who is now at the impressionable age of thirteen years, to spend a part of his time at his mother’s home, under the circumstances above mentioned, would, in the opinion of your petitioner and in the opinion of those who are looking after the religious training of said hoy, he extremely detrimental to such training and would necessarily subject him to influences wholly adverse to and in conflict with the religious training which he is receiving and upon which the parents had agreed at the time of the passage of the decree of divorce.” The prayer of the cross-petition was (1) that the decree of 1917. in so far as it relates to the care and custody of said