Robinson v. Robinson

KARWACKI, Judge. We issued a writ of certiorari in this case to consider the following questions: whether under the circumstances the ⁵⁰⁹ trial judge properly permitted a defendant in a child custody proceeding, who on cross-examination exercised her Fifth Amendment right against self-incrimination and refused to answer questions regarding her adultery, to testify as to her fitness to retain custody and to call others to do the same; what permissible inferences the court may draw from her silence; and the role adultery plays in the custody determination. I. Timothy Robinson, the appellant, and Deborah Robinson, the appellee, were married on February 28, 1987, in Ellicott City, Maryland. Their only child, William James Robinson, was bom on June 10, 1987.

Except for a brief period after William’s birth, both parties worked full-time pursuing their respective careers. Following a job change to Bell Atlantic Network Systems, Inc. in 1989, the appellee met Peter Johnson. Shortly thereafter, she and the appellant became dissatisfied with their marriage and, in January, 1990, they mutually agreed to separate. After finding an apartment, appellee moved out of the marital home on March 15, 1990.

From March 15, 1990, through October 8, 1990, the parties shared custody of William, who spent alternate weeks with each of them. A change in appellant’s employment on the latter date required that he be away from home for extended periods during the week, and the parties agreed to change their custody arrangement for William. It was agreed that appellee would have custody of William during the week and one weekend each month with William staying with his father during three weekends each month. On June 20, 1991, appellee moved into a four bedroom house in Columbia which she rents jointly with her sister, Beth.

In October, 1990, appellee filed a complaint for limited divorce in the Circuit Court for Howard County, asserting the ground of mutual and voluntary separation. She also sought custody of William and child support from appellant. In his answer to the original complaint, appellant admitted ⁵¹⁰ that the separation was mutual and voluntary and that appellee was fit to have custody of their child, but he asked the court to award the parties joint custody of William. On June 11, 1991, appellee filed a supplemental complaint for absolute divorce, based on the couple’s one year voluntary separation.

She also sought permanent custody of William and child support from appellant. Answering the supplemental complaint, appellant denied that he had voluntarily separated from his wife and that she was a fit and proper person to have custody of their son. He also filed a counter-complaint, seeking an absolute divorce on grounds of desertion and adultery, custody of William, and child support from appellee. When the case was called for trial on September 3, 1991, before Judge James B. Dudley, the parties advised the court that appellant had no objection to the divorce being granted to appellee on the ground of mutual and voluntary separation and that the only contested issues were the custody of William and child support.

After a two day trial, Judge Dudley granted appellee an absolute divorce on the ground of voluntary separation, awarded her custody of William, and ordered appellant to pay $746.00 monthly in child support. During the proceedings, appellant’s counsel cross-examined appellee on her relationship with Peter Johnson, whom she had not mentioned in her testimony on direct examination. She refused to answer the questions, exercising her privilege under the Fifth Amendment of the United States Constitution against self-incrimination. The trial court sustained her privilege as to those questions relating to the period after September 3, 1990.

The judge required her to answer for her activities prior to September 3, 1990, because the statute of limitations, Maryland Code (1974, 1989 Repl. Vol), § 5-106 of the Courts and Judicial Proceedings Article, barred any prosecution of her for the misdemeanor of adultery 1 which occurred more than one year earlier. ⁵¹¹ She admitted that she had engaged in sexual relations with Peter Johnson prior to September 3, 1990. During appellee’s testimony on redirect examination and later, during the testimony of appellee’s sister and her mother, appellant’s counsel objected to questions regarding appellee’s fitness for custody of William based on her prior invocation of the Fifth Amendment privilege. The court overruled the objections.

The court also denied appellant’s motion to strike appellee’s testimony on direct examination as to her fitness to have custody of her son. In a memorandum supporting his decision, Judge Dudley wrote: “The Court has considered and weighed all of the traditional considerations and factors in determining the best interests of the child and the fitness of each parent to have custody. In this case, each parent is a fit and proper person to be awarded custody. Each parent would provide something slightly different to the child as a custodian.

Both parents have full-time jobs and both would rely upon professional day care providers during the work week. “The husband alleged the child reported being in bed with his mother and her new boyfriend. The mother denies any such incident but admits that her boyfriend stays overnight with her frequently and sleeps with her in her bedroom. The four-year-old child is also exposed to his aunt and her live-in boyfriend’s sleeping arrangement. The husband argues that this amoral atmosphere is not in the child’s best interest and that it should tip the scale in favor of his getting custody.

The moral standards were established by the parties before the marriage when this child was conceived. What effect the present sleeping arrangements have upon this child is unknown. What is known is that in this day and age, single parents ⁵¹² quickly find new friends and partners and the children in these cases are frequently being introduced to new adult friends of the custodial parent. There is no reason to believe non-custodial parents are any different.

Learning to cope with new adults and the disrupting effects of visitation schedules are the unavoidable consequences of divorce. Also, the separation commonly requires the custodial parent to find new housing accommodations when their resources are minimal. This may result in accommodations that are less than ideal and possibly even less than the non-custodial parent could provide. That may be true in this case, but that alone is not enough to determine the best interest of the child. “In this case, the husband is living in the former marital residence with a male tenant.

The husband utilizes a day care provider and spends substantial amounts of time on the weekends with his son. There was no testimony or evidence that any other adults are involved in the husband’s efforts to raise the child. The wife is residing with her twenty-seven-year-old unmarried sister in a townhouse they rent. The sister frequently shares in raising the child and the wife’s parents live nearby and the wife and child visit there on a weekly basis.

The existence and participation of these extended members of the family in the child rearing activities provides some stability and completeness for the child which is otherwise lacking. These regular contacts with the aunt and grandparents may help fill a void which would otherwise result from this divorce. This advantage outweighs the potential disadvantages of having the child residing with his mother and aunt while they search out new partners. Certainly, when the husband resumes courtship, he would be expected to share a great deal of time and to expose the child to a variety of new adult females.

This, except for the moral consequences of the sleeping arrangements, is not significantly different from what he is experiencing now. The Court therefore finds that the advantages of custodial continuity, stability and of the frequent interac ⁵¹³ tion in an extended family create an advantage to custody with the wife. In this close case, that advantage tips the scale of the best interest of the child in favor of custody to the wife.” Appellant timely filed an appeal to the Court of Special Appeals from the judgment entered by the trial court. We issued a writ of certiorari prior to consideration of the case by the intermediate appellate court.

II

The standard for appellate review in child custody cases was clarified by this Court in Davis v. Davis, 280 Md. 119 , 372 A.2d 231 (1977): “In sum, we point out three distinct aspects of review in child custody disputes. When the appellate court scrutinizes factual findings, the clearly erroneous standard of Rules 886 and 1086 [current Maryland Rule 8-131(c)] applies. If it appears that the chancellor erred as to matters of law, further proceedings in the trial court will ordinarily be required unless the error is determined to be harmless. Finally, when the appellate court views the ultimate conclusion of the chancellor founded upon sound legal principles and based upon factual findings that are not clearly erroneous, the chancellor’s decision should be disturbed only if there has been a clear abuse of discretion.” Id. at 125-126 , 372 A.2d at 234 (footnote omitted).

This Court further explained the Davis rule in Ross v. Hoffman, 280 Md. 172 , 372 A.2d 582 (1977): “The teaching of Davis v. Davis, supra, is plain. The ultimate conclusion as to the custody of a child is within the sound discretion of the chancellor. That conclusion is neither bound by the strictures of the clearly erroneous rule, that rule applying only to factual findings of the chancellor in reaching the conclusion, nor is it a matter of the best judgment of the reviewing court. It is not enough that the appellate court find that the chancellor ⁵¹⁴ was merely mistaken in order to set aside the custody award.

Rather, the appellate court must determine that the judicial discretion the chancellor exercised was clearly abused. This is the principle which controls the review of any matter within the sound discretion of a trial court as distinguished from a judgment falling squarely within the ambit of the clearly erroneous rule.” Id. at 186 , 372 A.2d at 591. See also Domingues v. Johnson, 323 Md. 486 , 492 n. 2, 593 A.2d 1133 , 1136 n. 2 (1991); McCready v. McCready, 323 Md. 476, 484 , 593 A.2d 1128, 1131-32 (1991); In re Jessica M., 312 Md. 93, 110-11 , 538 A.2d 305, 313-14 (1988); Elza v. Elza, 300 Md. 51, 55-56 , 475 A.2d 1180, 1182 (1984); Kemp v. Kemp, 287 Md. 165, 170 , 411 A.2d 1028, 1031 (1980).

III

The Fifth Amendment provides in part: “No person ... shall be compelled in any criminal proceeding to be a witness against himself.” The privilege has its analogue in Art. 22 of the Maryland Declaration of Rights: “That no man ought to be compelled to give evidence against himself in a criminal case.” The Maryland right is generally in pari materia with the federal privilege and has usually received a like construction. Choi v. State, 316 Md. 529 , 535-36 n. 3, 560 A.2d 1108 , 1111 n. 3 (1989); Ellison v. State, 310 Md. 244 , 259-60 n. 4, 528 A.2d 1271 , 1278-79 n. 4 (1987); Richardson v. State, 285 Md. 261, 265 , 401 A.2d 1021, 1023-24 (1979); Smith v. State, 276 Md. 521, 526 , 350 A.2d 628, 632 (1976); State v. Panagoulis, 253 Md. 699 , 707 n. 3, 253 A.2d 877 , 881 n. 3 (1969); Brown v. State, 233 Md. 288, 296 , 196 A.2d 614, 617 (1964). Furthermore, the Fifth Amendment is applicable to the States by virtue of the Fourteenth Amendment. Malloy v. Hogan, 378 U.S. 1 , 84 S.Ct. 1489 , 12 L.Ed.2d 653 (1964).

Although by the literal terms of the Fifth Amendment the self-incrimination privilege applies only to criminal proceedings, the privilege has been construed to extend to witnesses in civil litigation where the answer to interroga ⁵¹⁵ tion might tend to subject the witness to criminal prosecution. Whitaker v. Prince George’s County, 307 Md. 368, 384-87 , 514 A.2d 4, 12-15 (1986). “Thus, in a civil case the fifth amendment does not preclude from disclosure facts which would tend to establish civil liability, but rather protects a witness from being required to make disclosure, otherwise compellable in the trial court’s contempt power, which could incriminate him in a later criminal prosecution.” Id. at 385 , 514 A.2d at 13 . See also Baxter v. Palmigiano, 425 U.S. 308 , 96 S.Ct. 1551 , 47 L.Ed.2d 810 (1976); Lefkowitz v. Turley, 414 U.S. 70 , 94 S.Ct. 316 , 38 L.Ed.2d 274 (1973); McCarthy v. Arndstein, 266 U.S. 34 , 45 S.Ct. 16 , 69 L.Ed. 158 (1924); Kramer v. Levitt, 79 Md.App. 575, 582-89 , 558 A.2d 760, 76-68 , cert. denied, 317 Md. 510 , 564 A.2d 1182 (1989); Wigmore on Evidence § 2254 (McNaughton rev. 1961). In