Whitford v. Whitford

Marbury, C. J., delivered the opinion of the Court. Appellant filed his bill of complaint on August 24, 1943, in the Circuit Court No. 2 of Baltimore City, for a divorce a mensa from the appellee. In his bill he states that as a result of the marriage there is one child, a girl, aged six, whose corpus custody is in the appellee, under an agreement entered into in the Children’s Court of Conciliation, Superior Court of the State of California, in and for the County of Los Angeles. He asks for the custody of this child.

Defendant answered, denying her desertion and stated that she was forced to leave the marital home in Philadelphia by appellant’s conduct and had to seek employment in the City of Baltimore, where she went accompanied by her mother and the infant child of the parties. That she rented a house in that city where she and her mother still reside. In November, 1942, appellant requested permission to take the child to visit his relatives in the State of Connecticut. When he did not return the child at the time fixed, appellee telephoned appellant’s sister in Connecticut, and learned that the appellant had deceived her, and had taken the child to California; that she made a trip to California and caused a proceeding to be instituted in that state in the Superior Court in and for the County of Los Angeles, and that a hearing was had in what was called the Children’s Court of Conciliation, which resulted in the execution of an agreement which she filed with her bill.

She further stated that the appellant was without visible means of support, and had no employment of a permanent nature, and no proper home in which to take care of the child; while she has such a home and is financially able to support the child. The agreement recites that the custody of the child is awarded jointly to both parties with a corpus custody to ⁵⁶⁸ the appellee, except that the appellant may have corpus custody for one-half of each summer school vacation, and that he may keep the child in the state of California during such period. In the event the appellant should move near Baltimore, he should have the right to have corpus custody of the child on alternate week ends. On December 11, 1943, appellee filed an amended answer, stating that since the filing of the original answer, appellant had by trickery and fraud and a violation of the above agreement, taken forcible possession of the child and removed her from the State.

In the amended answer she asks for affirmative relief, and asks that she be awarded a decree for the absolute custody of the child. On this amended answer, an order to show cause was passed, which was served on the solicitor of record for appellant. The appellant, by such solicitor, demurred to the amended answer on the ground that appellee did not obtain leave of Court to file it, and for other reasons to be shown at the hearing. However, the Court had granted tacit permission to appellee to file the amended answer and on the strength of this fact signed a nunc pro tunc order, permitting the answer to be filed.

The case was heard on February 1, 1944, upon demurrer to the appellee’s amended answer, and upon the merits with respect to the custody of the child. The Court overruled the demurrer, and passed a final order giving the custody of the child to appellee with the right on the part of appellant to see the child at all reasonable times. This order is subject, of course, to modification by future order. From this order an appeal was taken.

Subsequently, on March 23, 1944, the Court passed an order directing appellant to pay the sum of