Koger v. Koger

Henderson, J., delivered the opinion of the Court. This appeal is from a decree dated October 30, 1957, granting a divorce a vinculo to a husband on the ground of desertion and awarding custody of three minor, female children, then aged 8, 7 and 5, respectively, to the wife, and ordering the payment by the husband of $30 per week for their support. The appeal challenges only the award of custody. The parties were married in 1948 and separated on November 20, 1955, when the wife moved to a new address taking the children with her.

On June 18, 1956, the husband obtained a decree of divorce a mensa on the ground of desertion, which the wife did not contest. Although the bill prayed custody, the husband testified that the wife was a fit person to have custody and agreed to pay for their support at the rate of $50 per week. Custody was awarded to the wife, and the children have remained with her ever since. In the instant case, however, custody was contested by the husband, wrho testified, contrary to the wife’s testimony, that she had been uncooperative with regard to his visitation rights.

In the instant case, the Chancellor stated that he ³⁷⁶ would grant broad visitation powers on the part of the husband, and did so in a supplemental decree, dated December 27, 1957, the terms of which are not questioned. The appellant raises a number of technical objections to the decree appealed from. He contends that the wife is not entitled to custody under the pleadings, since she merely denied the allegation charging desertion and prayed that the bill be dismissed, rather than praying affirmatively for custody of the children. This argument overlooks the fact that the wife had custody under the prior decree, and that his prayer for custody put the matter in issue, or at least before the court for decision.

It cannot be doubted that the Chancellor had jurisdiction to direct who should have custody, under Code (1957), Art. 16, sec. 25. Cf. Code (1957), Art. 16, sec. 28. Indeed, the statute makes it plain that the Chancellor must retain jurisdiction for that purpose, when custody is prayed by the complainant, even where a divorce is denied.

Smith v. Smith, 216 Md. 141, 145 , and cases cited. The proceeding is not adversary in the usual sense. Custody may be denied, in a proper case, to one of the natural guardians, and awarded to grandparents, or other persons. Cf.

Trenton v. Christ, 216 Md. 418, 420 , and Dietrich v. Anderson, 185 Md. 103, 116 . The same misconception runs through other contentions of the appellant. The fact that the appellant prayed custody and produced evidence of ability to support the children in his own home is not controlling. Nor does the fact that he is deprived of custody necessarily relieve him of the duty of support.

Cf. McKay v. Paulson, 211 Md. 90, 95 . Neither parent has a preemptive right to custody, or any right superior to the right of the other. The inquiry is always as to the best interests of the children.

An award of custody to the mother, in a proper case, does not violate any of the provisions of the Fourteenth Amendment of the United States Constitution. She is not barred from receiving custody under the equitable doctrine of “clean hands”, if that doctrine is applicable at all in a divorce or custody case, merely because she was found to be guilty of a marital fault entitling her ³⁷⁷