Kline v. Bennett

Per Curiam. In this custody suit arising in the Circuit Court for Cecil County, Judge Keating, as Chancellor, by a decree of January 11, 1966, awarded the custody of two male children to their stepmother, Phyllis Campbell Bennett (Phyllis) with the right of the mother of the children, Patricia Ann Bennett Kline (Patricia) to visit them at convenient times and with the right to the mother to make application to the lower court, from time to time, during the summer months to have the children visit the mother. The mother has appealed to this Court from the Chancellor’s decree. The petition for custody of the two children was originally filed against John N. Bennett, Jr. and Leona Bennett, his wife, the paternal grandparents of the two children.

Phyllis was later joined as a party respondent. After answers were filed, two hearings were held — one, on September 27, 1965, and the other, on December 9, 1965. The Chancellor, in a well-considered opinion filed in the suit, found the following facts which are supported by the evidence taken at the hearings. Patricia and John N. Bennett 3rd (John) were married in 1955.

Three children were born to them during their marriage — Darryl, aged ten at the time of the last hearing, Larry, aged eight and a half and Gary, whose custody has remained with his mother Patricia and whose custody is not contested. In March 1962, Patricia and John separated and in November 1963, John filed suit in the Circuit Court for Cecil County for a divorce a vinculo matrimonii on the grounds of a mutual agreement to separate. Later, by an amended bill of complaint, adultery of Patricia with Thomas Kline (Thomas — the present hus ⁶⁷⁶ band of Patricia) was alleged as the ground for the divorce a vinculo matrimonii. The parties to the divorce suit had agreed that Darryl should be in John’s custody and that Patricia ■should have custody of Larry and Gary.

The Circuit Court, on March 27, 1964, granted John the divorce a vinculo matrimonii on the original ground and awarded custody in accordance with the agreement of the parties. On July 13, 1964, upon John’s petition, the Circuit Court passed an order awarding Larry’s custody to John, Patricia in the meantime having married Thomas. After Larry’s custody was awarded to John, Patricia and her new husband Thomas moved to Texas taking Gary, the youngest son with them. John married Phyllis on July 9, 1964.

After the separation of John and Patricia in March 1962 until the death of John as a result of an automobile accident on ■September 2, 1965, the two older boys lived with their father, first at the home of his parents, and after his marriage to Phyllis, at his own home with Phyllis, his second wife. The two boys continued to live with Phyllis after their father’s death and she is much attached to the boys and they to her. Patricia had committed adultery with Thomas and there was ■evidence that Thomas would not be a good influence upon the two children. We now quote from the Chancellor’s opinion: “The Court further finds that the home of Mrs. Phyllis Campbell Bennett, as well as the home of Mr. and Mrs. John N. Bennett, Jr., the boys’ grandparents, is a good, well-kept, well-disciplined home and the boys are both loved and properly supervised by Mrs. Phyllis Campbell Bennett and by the grandparents.

They are given good school opportunities as well as religious training and are afforded the best of material things within the means of the Defendants. On the •other hand, the Court finds that Mrs. Kline and her present husband, also keep a reasonably orderly, although small, home in an apartment complex in Texas in