McCabe v. McCabe

Prescott, J., delivered the opinion of the Court. This suit involves the custody of a four-year-old female child. The appeal is from that part of the decree awarding her custody to the mother, with the right of visitation reserved to the father, after the court had awarded the father a divorce on the ground of adultery. The appellee-mother, now twenty-seven years’ old, married a soldier, one Milton Uhden in 1949.

Pie left this country in May or June of 1950 and was stationed in Korea as a member of the Armed Forces of this country. A daughter, Phyllis, was born in Pittsburgh on March 3, 1951, while Uhden was still abroad. There was testimony presented at the hearing attempting to cast doubt upon the paternity of Phyllis, but Uhden never publicly denied her as his child. The appellee was permitted to obtain an uncontested divorce from this husband on the ground of desertion on July 15, 1952.

Richard N. McCabe, the appellant, was also a member of the Armed Forces and met the appellee a few months before ³⁸⁰ the divorce from Uhden. They were married on August 17, 1952, one month after this, her first, divorce. Shortly thereafter, McCabe was transferred to Oklahoma and later to Delaware. The appellee accompanied him, leaving Phyllis, then about three years old, in the care of her mother and sister in Catonsville.

Wanda, the subject of this suit, was born on November 5, 1953. When but three months of age, despite-the father’s repeated protests, the mother took her and Phyllis, to live with their grandmother in Catonsville and left them there until September, 1954, when McCabe was ordered to Fort Meade. Upon his discharge in January of 1955, he returned to Catonsville and took a position as an automobile salesman. His wife refused to live with him, so he re-enlisted in the service, was later transferred to Greenland and finally discharged in October of 1957.

He, too, is now twenty-seven years’ of age. There was much testimony to the effect that the mother neglected the children; that she failed to prepare and give them their meals; that she frequently left them unattended while she went out on dates with other men; that she had often gone out with a married man, Sergeant Mitner, while her husband was away; and that while out on one of these dates she was hospitalized as a result of an automobile accident at two o’clock in the morning. Testimony was also presented to show that she drank frequently; was indifferent to the children’s clothes and their appearance; and that she failed to develop an attitude of love, affection and kindness towards them. While her husband was stationed in Greenland, she began going out with one Pete Athas.

Soon an illicit relationship developed between them, and in June of 1957, she, Athas, Phyllis and Wanda moved into an apartment rented by him at 3909 Penhurst Avenue in Baltimore City. Another daughter, which she admits is Athas’, was born to her on August 19, 1957. On December 18, 1957, the appellant was granted a divorce from the appellee on the ground of adultery. Four days later she married Athas and is now living with him and her three children. ³⁸¹ We shall quote a short passage in one of the letters that the appellee wrote to her husband when he was stationed in Greenland and she was living with her mother, as it throws some light on her emotional qualities.

It is: “But if I don’t soon get out of this house I am going to pack a suit case one day and say to hell with it all. This time if I leave an accident won’t stop me it will probably kill me. But I guess everybody would be better off that way. Mom could have Phyllis and you could have Wanda * * * .” The mother denied few of her indiscretions; indeed they had been so open and brazen that it would have availed her little had she done so.

An investigation of the case was made by the Probation Officer of the Supreme Bench of Baltimore City and by the Probation Department in Rye, New York, where the father resides. The first of the above reports is full and comprehensive, but only a few of its contents will be repeated here. The appellee’s former mother-in-law wrote the Department that she had known the appellee for nine years and feels that she would be a proper person to rear her children. One character reference given by the appellee failed to respond to the inquiry addressed to her.

Mrs. Nichols, who boarded in the home of the appellee’s mother for seven or eight years, described the appellee as a “ruthless” person, “who has always done exactly as she pleased, never caring as to who was hurt in the process.” She stated that the appellee’s first husband was her sister’s beau and she deliberately set out to take him from her. Mrs. Nichols felt that the appellee has no right to have the child; that she has no patience with the child or her own mother, who has unselfishly cared for the appellee and appellee’s children through the years; that when her mother would ask her to get up and fix breakfast for the children, she would curse her mother in a very loud tone; and she would scream at the children “as if they were animals.” There was testimony to show marked hostility on the part of Mrs. Nichols towards the appellee. The appellee’s mother told the Department that she was ashamed and heart-broken concerning her daughter’s conduct, but she did not believe the appellant sincerely wanted ³⁸² the child, that he never wanted a baby