Marshall v. Stefanides

Gilbert, J., delivered the opinion of the Court. This appeal involves the custody of children in the context of “ [t] hose two fatal words, Mine and Thine.” 1 The Circuit Court for Wicomico County and this Court are compelled to assume the role of Alexander and cut the Gordian knot 2 the parties have managed to tie. Roseanne C. Marshall (Roseanne) and Jon Stefanides (Jon) began dating in 1962, when both were college students at Edinboro, Pennsylvania. In 1963, Roseanne became pregnant and Jon proposed marriage, but he “did not think it was satisfactory to rush right in.” Later there was an attempt to marry in the District of Columbia, but because of the required waiting period between an application and the receiving of a license the effort was thwarted.

The testimony concerning other arrangements to marry is conflicting. The parties, how ³⁶⁶ ever, lived together in Pennsylvania from 1964 until 1971, during which time a second son was born. In 1971, they moved to Salisbury, Maryland, where Jon was employed by the Wicomico County Board of Education. The parties resided in Salisbury until Roseanne left the abode and went to Oil City, Pennsylvania, where, after having allegedly consulted an attorney, she married David Marshall (Marshall) in late January, 1972.

The tug-of-war that then began between Jon and Roseanne for charge of the two children degenerated to a level where the parents were removing the children from each other’s control under cloak-and-dagger type circumstances. On one occasion, Roseanne and Marshall traveled to Salisbury, and after observing the two boys riding their bicycles in the vicinity of their father’s home, Roseanne and Marshall took the two boys and motored to Pennsylvania. Apprehensive of his sons’ welfare, and fearing either foul play or that some unfortunate accident had occurred, Jon notified the Salisbury police of his sons’ absence. A search was conducted that evening and continued into the night.

Jon did not learn of his sons’ whereabouts until the next morning when notified by the police. Later, Jon journeyed to Oil City, Pennsylvania, where the principal of the school in which Roseanne had enrolled the boys allowed Jon to see his sons in the principal’s office, in the presence of the principal and the principal’s secretary. After the boys had inquired of their father as to what car he was driving, they were told to return to their classroom. When Jon went to his automobile, he discovered both sons in the car.

Jon drove them to Salisbury, stopping enroute to notify Roseanne that he had taken the children with him at their request. Jon filed suit in the Circuit Court for Wicomico County and prayed custody of the children. In his petition Jon alleged the marriage of the parties. Roseanne, in her answer to the petition, denied that she was married to Jon, asserted that the children had been “born to her out of wedlock” and further prayed custody of the chil ³⁶⁷ dren.

The matter came before the court for a hearing on the issue of custody. During the course of the trial the Chancellor, over the objection of Roseanne’s counsel, announced that he was going to interview the two children, ages eight and six, privately, in his chambers. Jon and one of his witnesses had completed their testimony. The parties and counsel were excluded from the “private interview.” Upon completion of the interview the trial reconvened.

Jon concluded his case and Roseanne went forward with the presentation of her evidence. The substance of the boys’ statements at the interview was not revealed to the parties during the trial. His “Memorandum Opinion,” wherein the trial judge states his reasons for granting custody of the two children to Jon, does allude, however, to certain information that he garnered from the children. Jon relies upon Sibley v. Sibley, 187 Md. 358, 362 , 50 A. 2d 128 (1946) to support his position that private interviews, in chambers, are not unknown to the courts of equity in custody matters.

Our perusal of Sibley reveals that the only reference to a private interview with the child in that case is the sole sentence: “ [The Chancellor] also had the opportunity to talk to the infant.” Nowhere in the opinion of the Court is there any indication of the circumstances under which the Chancellor talked to the infant. We are not told whether the parties or counsel were present or if all were excluded. A similar isolated sentence is contained in Trenton v. Christ, 216 Md. 418, 421 , 140 A. 2d 660 (1958), wherein it is said: “The Chancellor had an opportunity to see and hear all of the witnesses, including the child.” In Young v. Weaver, 185 Md. 328 , 44 A. 2d 748 (1945), the Court of Appeals remanded, without affirmance or reversal, and instructed the trial judge to conduct an “interrogation” of a fifteen year old boy as to his reasons for preferring to reside with foster parents rather than with his natural mother and her husband. Here ³⁶⁸ again, there is no indication as to the circumstances under which the Chancellor was to conduct the “interrogation.” We do not think Sibley, Trenton or Young support Jon’s position that the trial judge’s interview in the instant case was proper.

In 99 A.L.R.2d, at 955-956, it is stated: “Basically, the cases involving a court’s conducting a private interview with a child over ■ whom there is a custody dispute are of two types: (1) where the parties have not consented to, nor acquiesced in, the informal procedure, and (2) where the interview is held pursuant to the actual or implied stipulation of the parties. “In the absence of waiver or consent, either the private interview is deemed generally proper, or it is never proper. “However, two major limitations of the rule accepting such an interview as generally proper narrow the distinction. Some cases indicate that a private interview is only proper where the court reveals the contents of the conversation prior to making the custody award, while other cases hold that such an interview is proper just so long as the award is based on evidence produced in open court rather than on information obtained in private.” (Footnotes omitted). Under the facts as they are revealed from the record in this case, the Chancellor’s interview with the children simply does not fit into any of the expounded exceptions. It is patent that there was no stipulation for the interview because there was an objection, and consequently there was no waiver or consent.

The Chancellor did not reveal “the contents of the conversation prior to making the custody award” nor did he ground his decision solely on the basis, of the evidence produced in open court. Roseanne argues that the “Memorandum Opinion” is predicated to a great extent upon information that the ³⁶⁹ Chancellor obtained from the boys in the private interview. She says that the presentation of her case, occurring in point of time after the interview with the two boys, placed her in the untenable position of being called upon to answer, explain, or defend the alleged preferences of her sons when she did not know what preferences or “desires” they had expressed. This, she contends, is manifestly unfair and a denial of due process.

Jon, the father, had already presented his evidence and we assume, although we do not know because the record is silent on the matter, that the children were present in the court room at the time of that testimony. With Jon’s evidence heard, the children possibly schooled thereby, and Roseanne’s total lack of knowledge of what she was called upon to answer by way of the children’s statements to the Chancellor, the interview was fundamentally unjust. See Cook v. Cook, 5 N. C. App. 652, 169 S.E.2d 29 (1969); Baker v. Vidal, 363 S.W.2d 158 (Tex. Civ.

App. 1962). We recognize that a child, particularly of young and tender years, could be subjected to severe psychological trauma because of a custody case. We are confronted, therefore, with an attempt to balance the right of the parents to present evidence as to what they deem to be in the best interest of the child as against possible severe psychological damage to the child. We believe that a Chancellor’s interview of a child in a custody case out of the presence of the parties to be proper, in the discretion of the court, with or without the consent of the parties, and with or without the presence of counsel.

In all cases, unless waived by the parties, the interview must be recorded by a court reporter. Immediately following the interview its content shall be made known to counsel and the parties by means of the court reporter’s reading of the record of that interview to them. In so holding, we share the view of some jurisdictions that a trial judge should be allowed to conduct an in-camera interview with the child or children to the exclusion of the litigants or counsel, if some means of appellate re ³⁷⁰ view of the interview is available. 3 We, however, add the requirement that the court reporter shall make known immediately to the parties and counsel the content of the interview. This should be done sans the presence of the child or children.

We believe the method that we have hereinabove outlined minimizes, as much as possible, the psychological impact on the child, and at the same time allows interested parties to produce all the evidence that is necessary to enable the court to arrive at a fair and just determination in accordance with the best interest of the child. It is obvious that the interview in the instant case was not consented to and that the substance of the interview was not reported. From his “Memorandum Opinion,” it is pellucid that the Chancellor relied to a great extent upon the information he garnered from his private conversation with the children. 4 We hold that the private interview between the children and the Chancellor under the circumstances of this ³⁷¹ case constitutes reversible error, and we therefore remand the matter for further proceedings. We deem it advisable for the guidance of the trial court to discuss other factors relating to this appeal.

Rule 1085. Neither Roseanne nor Jon served upon the other a notice to rely upon the foreign law, i.e., the common law of Pennsylvania. There was some testimony, albeit conflicting, that Jon and Roseanne held themselves out to be husband and wife in Pennsylvania where common law marriages are said to be recognized. The Chancellor, however, specifically declined to rule on the validity of the marriage.

He said: “Regardless of Pennsylvania law, this court is not going to determine whether or not they were validly married in Pennsylvania under Pennsylvania law or any other law. The Court is interested in knowing the relationship that existed between them, what their thinking was during the time they lived together, what their thinking is now. I am going to overrule the objection, but I will tell you right now that I have no intention of ruling in this case whether or not they are, or were, married