Myers v. Butler

Powers, J., delivered the opinion of the Court. This appeal involves the function of the courts in custody of children of divorced parents, and the extent of visitation rights of the parent not having custody. Edgar Frank Myers, appellant, and Anna Loleta Butler, appellee, were married in 1957. By a final decree in March, 1966, the Circuit Court for Montgomery County granted the wife a divorce and custody of their three daughters, approving a visitation schedule incorporated by the parties in a prior separation agreement.

Appellee has remarried; appellant has not. From time to time the parties acquiesced in minor changes in the visitation schedule. Differences later arose between the father and mother over visits. Renewed activity on the docket commenced in June, 1969, and culminated in hearings before Judge James H. Pugh in March, 1970, on the father’s petition for change of custody or modification and enlargement of visitation rights.

The hearing was an extended one, and Judge Pugh conferred with the three girls, then 11, 10 and 8 years old. He decreed that custody remain with the mother, and prescribed the visitation rights of the father with specified restrictions. The father appealed from the decree; there was no brief nor appearance for the appellee in this court. Custody of minor children is a particular concern of courts of equity.

Their inherent jurisdiction is declared in Maryland Code, Article 16, Section 66, and under Article 16,' Section 25, may be exercised in divorce cases, whether a divorce is decreed or denied. Coleman v. Coleman, 228 Md. 610, 613 , 180 A. 2d 875 (1962). There appears to be no difference in the jurisdiction under these two sections, except that if the relief is sought as a part ³¹⁷ of a divorce case, the merits of the divorce should first be heard. Hood v. Hood, 138 Md. 355, 363 , 113 A. 895 (1921).

The Court of Appeals has frequently and clear] y stated the rule of law in custody cases. It said in Wallis v. Wallis, 235 Md. 33 , at page 36, 200 A. 2d 164 (1964) : “The overriding consideration in determining to whom the custody of a child should be awarded is, we have consistently held, the best interests and welfare of the child. Glick v. Glick, 232 Md. 244 , 192 A. 2d 791 ; Hild v. Hild, 221 Md. 349 , 157 A. 2d 442 . These cases, and many others which could be cited, state also a correlative rule that unless the mother is unfit,