Ferster v. Ferster

Marbury, J., delivered the opinion of the Court. Charles B. Ferster, appellee, filed an amended bill of complaint on August 7, 1963, for divorce a vinculo matrimonii on the ground of adultery against the appellant, Marilyn B. Ferster, and for custody of their four minor children. After an answer had been filed by the appellant, the case was heard in open court on April 7, 1964, by Judge Anderson who filed a memorandum opinion and issued a final decree on April 14, 1964, granting the divorce and awarding custody of the four minor children to the father, with visitation rights to the mother. The mother appeals only from that part of the decree awarding custody of the children to the appellee.

The appellant and appellee were married in New Jersey in 1947. There had been difficulties during the marriage and, in January 1963, they orally voluntarily agreed to live separate and apart. The original bill of complaint was filed by appellee on June 3, 1963, and was served, together with process, on the ⁵⁵⁰ appellant June 10 of that year. Some time after this date she departed from the State of Maryland, taking all of the children with her.

A hearing was held before Judge Shook on June 28, 1963, and on July 3 she awarded the custody of the children to the appellee pendente lite. At the trial of the case on April .7, 1964, the appellant did not appear in court but was represented by her counsel. She offered no testimony in her behalf, but submitted as an exhibit an order passed by the Superior Court of Fulton County, Georgia, on August 9, 1963, awarding her temporary care, custody and control of the children. Since the appellant does not question that portion of the lower court’s decree granting the divorce in favor of the appellee, but contests only the award of custody of the children, the correctness of the latter provision of the decree is all that will be considered here.

In finding that the father as a fit and proper person was entitled to the custody of the four children, the chancellor also found from the evidence that the appellant was an unfit mother and was not entitled to their custody. The record indicates that since the separation of the parties the appellant has engaged in immoral conduct in the same house and in the presence of the children. Her paramour was a frequent visitor to her home and finally became a part of the household. There was an unhealthy environment of drinking parties and general instability in the home.

A next door neighbor testified that the little girl, Andrea, came to her home daily. The child was poorly dressed and she often