Pangle v. Pangle

¹⁶⁷ Urner, J., delivered the opinion, of the Court. The appellant and appellee were married on, July 29, 1911, and they were divorced on December 11, 1917, by the Circuit Court of Baltimore City, at the suit of the husband, on the ground of the wife’s adultery. By the decree of divorce the custody of the five year old daughter of the parties, the only child born of the marriage, was awarded to the father. About two weeks after the decree was passed the divorced wife married the man with whom she was alleged and proven to have committed the adultery on account of which the marriage was dissolved.

Four months later she petitioned the Court which had granted the divorce to modify the decree by re* scinding the award of the child to its father’s custody and by providing that its mother should have charge and care of it for the future in accordance with an agreement which she claimed to have had with the father to that effect prior to the passage of the decree. The petition alleged a distinct understanding between tbe parties', when the suit for divorce was pending, that the decree should he silent as, to the disposition of their daughter, and that the father should have possession of the child during the winter of 1917, taking her with him to Cuba for that purpose, but should return, with her in the spring of 1918 and deliver her into the custody of her mother. It was further averred that the child was brought hack to Baltimore by her father in April, 1918, and they were met by the petitioner who came there, from her new home in Hazelton, Pennsylvania, for the purpose of receiving her daughter, but that, while she was allowed to have her for periods of a day and night at a time during the following week, the father finally placed the child in a school and home for young girls in the suburbs of Baltimore, from which he will not permit her to be removed. There were allegations, to the effect that the petitioner is desirous and capable of having the care and custody of the child, and her second husband is willing and lias tbe means to provide for its support, and that her former husband is a, man without a home or any permanent place of abode, being a race horse owner and trainer who ¹⁶⁸ attends horse races throughout the country.

It was also alleged that the petitioner did not learn of the provision of the decree awarding the custody of the child to its father until shortly before the present petition was filed. The father’s answer to the petition denied that there had been any agreement as to the custody of the child, and averred that he had no desire or intention to prevent the another from visiting their daughter ou all reasonable occasions, and that he was willing, before she was placed in the school mentioned in the petition, to allow the mother to taire the child to her home for a short visit, hut he learned that she was preparing to surreptitiously taire her to Ptennsylvania and keep' her there permanently to the exclusion of the respondent’s rights, and he therefore placed his daughter in the institution referred to, paying $150 in advance for her care and education there for the period of six months. The answer also emphasized the fact that the petitioner was divorced from the respondent because of her adultery with the man who is her present husband, and suggested to the Court that the proposed modification of the decree would not be for tbe best interests of tbe child. The testimony taken at the hearing below need not be discussed in detail.

Its effect in part was to prove that the petitioner is living with her present husband in a house in Hazel-ton, Pennsylvania, which they occupy and maintain jointly with three other persons, and that the respondent is able and well qualified personally to have the care and custody of his daughter, but his business requires him to spend a number of months every year away from Baltimore in attendance upon races in this country and in Cuba. A considerable portion of the evidence was directed to the habits and conduct of tbe petitioner prior to her divorce from the respondent. Apart from the adultery which occasioned the divorce, there were certain phases of her life during that period which were not consistent with a proper appreciation of her duty and responsibility as the mother of the child then in her care. ¹⁶⁹ The lower Court modified the original decree by providing that the care and custody of the child be awarded to its mother for the months of July and August, 1918, aud to its father for the two succeeding months, and then to its mother until the further order of the Court, each of the parents to be responsible for the care and maintenance of the child during the respective periods of their custody. From this decree the father has appealed.

It is provided by section 38 of Article 16 of the Code that in all cases where a divorce is decreed, the Court passing the decree shall have “power to order and direct who shall have the guardianship and custody of the children, and