Miller v. Miller , 191 Md. 396 ( 1948 )

As is apparent, and was stated at the argument by the husband's counsel, this was a "forced marriage." The baby was not the result, but the cause, of the marriage. Affection, if any, between husband and wife, soon cooled in the drab life in Tennessee, in cramped quarters, with a sickly baby, without money and without marked ability or industry on the husband's part. He has a more than Adamlike propensity for blaming on his wife not only his shortcomings but also his misfortunes and even his statements in letters to her. He says the baby was not properly cared for by his wife, because had it been properly cared for it would have grown like a normal child and taken on weight. Beyond this syllogism there is no evidence of lack of care of the child and Judge Mason finds the charge "overdrawn and unimportant". From Tennessee they fled to, and doubtless imposed upon, his parents. He paid only a nominal "board" for his family; she did not overwork about the house, but permitted the grandmother to enjoy the baby's society and also to take over to a considerable extent the unpleasant incidents of caring for a baby. The baby soon improved, not through the grandmother's care, but through medical care and advice, as to nutrition, which had not been received in Tennessee. Before the departure for New York, the wife got employment with the Social Security administration, and the husband gave up his job for several weeks to look for a better one.

This Court has repeatedly held that divorces, including divorces a mensa, should not be granted for light or trivial causes. Desertion, especially a short separation, ordinarily is not irrevocable but calls for reasonable efforts on both sides toward reconciliation. An unannounced visit by a wife to her parents is not per se desertion. Cf. Coleman v. Coleman,188 Md. 203, 208, 51 A.2d 673, 675. Even if the wife, when she took the baby to New York in September, did not intend to return, the fact is she did return in three weeks for the baby's birthday. While she was in New York, her husband wrote her: "I am so very happy that I am going to get another chance. I promise you will not regret it." His explanation of this letter is too flimsy to bear handling. Even if she intended to return to New York with the baby, the fact is she did not return but was locked out of the house by her husband and her baby kept from her. Such treatment naturally aroused the fury of a woman scorned and did nothing to rekindle the embers of dead or dying affection.

Going to the dance did not outrage the husband's sense of propriety. The event suggests that he was glad to find a pretext for locking her out and snatching her baby from her. He does not like dancing and does not dance well. To many young, or not so young, persons dancing is a necessity. Going to a dance without one's husband is not conventional but is not rare. In mid-Victorian days it was not unheard of and did not constitute desertion or evidence of adultery. It does not justify a lock-out. Nor does a lock-out constitute desertion by the one locked out.

I think neither the husband nor the wife is entitled to a divorce and both the bill and the cross-bill should be dismissed, except as to custody of the child.

However, in this case the question of divorce is relatively unimportant in comparison with the matter of custody of the child. Of course, the paramount consideration is the best interests of the child. But unless the mother is definitely unfit, ordinarily the first interest of a child of tender years, especially a girl, is to receive its mother's care and attention.Cf. Schneider v. Hasson, 161 Md. 547, 550, 157 A. 739. When a husband obtains a divorce for desertion, custody of a young child is seldom denied to the wife. Cf. McCann v. McCann,167 Md. 167, 171, 172, 173 A. 7. In most cases in which the wife has been denied custody she has been guilty of adultery and in many was still living in adultery. Swoyer v. Swoyer, 157 Md. 18,145 A. 190, and dissenting opinion; Pekar v. Pekar, 188 Md. 360,52 A.2d 468.

In the instant case the mother apparently was never away from her baby for a day until, thirty-six hours before the bill was filed, she was locked out by her husband. The principal reasons urged for denying her custody are that she is employed outside the home and sometimes goes out at night. A hundred years ago women who spent "long days of labor" in factories were not legally unfit for custody of their children. Today a forty-hour, or shorter, week, and the still shorter hours of part-time employment, leave more free time to be with a child. Day nurseries, children's playgrounds and other social agencies give attention to children while their mothers are employed outside the home. The placid home life reflected in Whistler's portrait of his "Mother" is an irreparable loss of recent generations. Certainly mothers — or greatgrandmothers — do not now exemplify it. Infant mortality, however has been overcome, not by mothers of the Whistler era, but by modern medicine. Moreover, even a Whistler mother would not be capable (a) of giving a young grandchild the warm young affection it is entitled to received from its mother or (b) of coping with modern adolescence, which follows babyhood by only a short span of years. Practically all mothers — and fathers — married, widowed, separated, divorced or remarried, more or less frequently go out at night and leave their children with professional (but untrained) "baby-sitters" or with grandmothers, who either gladly or reluctantly usually accept the role of unpaid baby-sitter. If, on the facts of this case, the mother is to be denied the custody of her baby, then "emancipated woman" who has outside employment (as millions have) or goes out at night (as every one does) has shaken off the tyranny of a husband's dominion at common law, only to become subject to a worse tyranny of living in fear of a husband or former husband snatching, or threatening to snatch, her baby from her. A weekly four-hour visit of mother to child, in a hostile home, can only keep both mother and child emotionally upset and intensify hostility between mother and grandparents.

The mother, in this case, so far from having demonstrated her unfitness, appears to be superior to the father in education and initiative. She has established herself in Baltimore and seems able to fend for herself, particularly if she receives from her husband an allowance for the support of the child. I think custody should be awarded to her, subject to the continuing jurisdiction of the Court, with the right to the father to see the child — not restricted as is the mother's right under the present decree to a few hours each week in the presence of others — and to have her visit in his parents' home for reasonable periods.

HENDERSON, J., concurs in this opinion.