author:
Davidson, J.,
      Lowe, J,

text:
    JOYCE MARCINE WILLIAMSON v. STATE OF MARYLAND
    [No. 777,
    September Term, 1976.]

      Decided June 10, 1977.

      The cause was argued before Morton, Davidson and Low®, JJ.

      Alfred L. Scanlan, Jr., Assigned Public Defender, for appellant.

      Alexander L. Cummings, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Sandra O'Connor, State’s Attorney for Baltimore County, and Dana Mark Levitz, Assistant State’s Attorney for Baltimore County, on the brief, for appellee.
   Davidson, J.,

delivered the opinion of the Court. Lowe, J., dissents and filed a dissenting opinion at page 412 infra.

In the Circuit Court for Baltimore County, a jury, presided over by Judge Kenneth C. Proctor, convicted Joyce Marcine Williamson, the appellant, of murder (count one), conspiracy to murder (count two), and solicitation of murder (count three). She was sentenced to life imprisonment for murder and to a concurrent five year term for the merged offenses of conspiracy and solicitation. On appeal, the appellant contends that: a) the evidence was insufficient to sustain her conviction for murder; b) the trial court abused its discretion in sentencing her to life imprisonment for murder; and c) the trial court committed prejudicial error by denying her motion for a bifurcated trial on the issues of sanity and guilt.

I

Maryland recognizes the common law distinction between principals and accessories before the fact. One charged as a principal cannot be convicted on evidence sufficient to show that he was an accessory but insufficient to show that he was a principal. Persons who themselves commit the crime, either by their own hand or by the hand of an innocent agent, are principals in the first degree. Persons who are present, either actually or constructively, and who aid and abet the commission of the crime but do not themselves commit it, are principals in the second degree, provided there is a guilty principal in the first degree. Persons who procure, counsel or command the perpetrator, but who are not present, actually or constructively, at such perpetration, are accessories before the fact. Thus, the critical difference between a principal and an accessory before the fact is presence or absence during the commission of the crime.

Here, in order to sustain the appellant’s conviction, the State was required to prove that the appellant herself committed the murder or was either actually or constructively present when the crime was committed. The appellant contends that there was no evidence to show that she committed the murder or was actually or constructively present at the time it was committed. The State concedes that there was no evidence to show that the appellant committed the murder or that she was actually present during its commission. It argues, however, that the close physical proximity of the appellant to the murder scene, coupled with other evidence that the appellant, in pursuance of a common design, was so situated as to be able to aid the murderer, establishes that she was constructively present. We do not agree.

This Court has repeatedly delineated the characteristics of constructive presence. In Huff, supra, this Court said:

“A person is constructively present, hence guilty as a principal, if he is acting with the person who actually commits the deed in pursuance of a common design, and is aiding his associate, either by keeping watch or otherwise, or is so situated as to be able to aid him, with a view, known to the other, to insure success in the accomplishment of the common enterprise.”

Here, there .was evidence to show that the appellant, her husband Randolph Alexander Williamson, Jr., her brother Nelson Leroy Boone, and her sister Renee Boone lived in the same house. Beginning in January, 1975, the appellant, with the help of her brother, attempted to hire someone to kill her husband. During negotiations with someone who ultimately refused to commit the murder, the appellant’s brother, in describing a suggested mode of operation, said: “He would get the person drunk . .. and the guy would be in the car and it would be no problem.”

In July or August, 1975, the appellant, again with the help of her brother, hired Lawrence Merrick to kill her husband. On the Saturday before Labor Day, her brother drove Merrick to a club near the appellant’s home, where he left him, and then returned home. About 11:30 that night, the brother left the house to make a trip to North Carolina. He saw Merrick “sitting down in one of my [Boone’s] cars parked outside of my sister’s house.” The husband was asleep in one of his own cars which was then parked in the driveway near the same house. The brother drove off but shortly after his departure he stopped and called his sister. He asked whether she knew what she was doing and “what had gotten into her.” She told him to “have a nice trip.” He returned home and took the husband into the house. He then had another conversation with his sister in which “she told me just to mind my business, and we got into a few words.”

Subsequently, at about 12:30 a.m., on 5 October 1975, the appellant and her husband returned from a party. Her husband was intoxicated and asleep in the car. As she had frequently done in the past under similar circumstances, she parked the car in their driveway and went into their house, leaving her husband asleep in the car. At about 2:15 a.m., the appellant’s sister returned to the house and noticed that the appellant’s husband was asleep in the car. At about 2:30 a.m., the appellant’s brother returned to the house. The appellant called to him and then he went to bed. Later, he was awakened by a telephone call from Merrick who asked what he was doing. The brother said ho was “oleeping” and the conversation ended. Shortly before 4 sum», the appellant woke her brother. She told him that she had heard her husband calling her and asked him to help cany her husband inside. When she got outside, ahe found her husband lying in a pool of blood next to the car. She began to scream. The police arrived. The appellant was taken to a police station where she gave an exculpatory statement.

There was no evidence to show that on the night of the murder the appellant helped the murderer in any way. There was nothing to show that she encouraged her husband to drink so that he would fall asleep in the car. Neither was there evidence to show that she signalled the murderer to come and commit the murder, nor that the murderer ever contacted her in the house. Finally, there was nothing to show that she was awake at the time of the murder or that, if awake, she could see the murder site.

In the absence of such evidence, the fact that the appellant had contact with Merrick before the crime was committed, even when coupled with the fact that she was physically close to the murder site, does not show or support a rational inference that at the time the murder was committed the appellant helped or was so situated as to be able to help the murderer. Consequently, the evidence was insufficient to show the appellant's constructive presence at the time of the commission of the crime. Accordingly, it was insufficient to show that she was a principal in her husband’s murder and to sustain her conviction for that murder. We shall reverse.

II

The appellant contends that the denial of a bifurcated trial on the issues of sanity and guilt violated her right against self-incrimination. She maintains that her insanity plea by its very nature constituted an admission of complicity in the crime. She further points out that in order to establish her insanity defense, she was required to produce psychiatric testimony containing statements she had made to her psychiatrist which tended to implicate her in the commission of the crime. She concludes that the single trial procedure is constitutionally infirm because it compels her to place such incriminatory evidence before a jury which decides not only the question of sanity, but also the question of innocence or guilt.

While it has been held that such a procedure does not violate due process or equal protection of the law, the issue of whether a single trial on the questions of guilt and sanity violates the right against self-incrimination has not previously been determined. Analogous situations have been considered.

In Bartholomey v. State, a statute authorized a jury in a first degree murder case to prevent the imposition of the death sentence by adding the words “without capital punishment” to its verdict. It was there contended that a single verdict procedure which required an accused to make an election between testifying in order to mitigate the severity of his punishment or not testifying in order to avoid establishing his own guilt had a chilling effect on the exercise of his privilege against self-incrimination. The Court of Appeals said:

“In the present case, although no plea of guilty was involved, the appellant was presented with a tactical choice of exercising his undoubted right not to testify or to testify and subject himself to cross-examination by the State. We have never understood that the constitutional right against self-incrimination permits a defendant who elects to testify in his own behalf to confine his testimony to evidence he believes to be favorable to him but precludes the jury from hearing evidence which may be unfavorable to him.”

The court then held that the single verdict procedure did not violate the accused's right against self "incrimination.

In Bremer v. State, the accused, having entered the defense of insanity, was ordered to submit to a mental examination by the State. It was there contended that this order violated his right against self-incrimination because the single trial procedure would cause his incriminatory statements, made to the State psychiatrists with respect to the question of sanity, to be disclosed to a jury deciding the question of innocence or guilt. This Court said:

“Where [an accused] has pleaded insanity as a defense and presented evidence to meet the threshold question, the maintenance of a ‘fair state-individual balance’ requires that the State be permitted to have him examined.
“Not only was the mental examination to determine Bremer’s sanity vel non required to maintain a ‘fair state-individual balance,’ but it follows that if the State must ‘shoulder the entire load’ of establishing sanity beyond a reasonable doubt, it must have the means to do so at its disposal. The State should not have to rely on examinations made only by experts chosen by Bremer, leaving it with recourse only to cross-examination of them, or to its selected experts whose testimony would be predicated upon courtroom observations and hypothetical questions. Nor do we deem the purpose and result of the examination of Bremer by the staff at Perkins to be ‘the cruel, simple expedient of compelling [incriminating evidence] from his own mouth.’ The purpose of the examination was to determine whether Bremer possessed the requisite mental capacity, in the face of his plea that he did not, to be criminally responsible for the criminal acts charged, upon proper proof that he did do them.” (Citations omitted.)

The court concluded that the accused’s right against self-incrimination was not violated by requiring him to elect between cooperating with the State’s psychiatrist in order to preserve his voluntarily interposed insanity defense, and not cooperating with the State’s psychiatrist in order to avoid having his own statements used to establish guilt.

Applying these principles to the instant case produces a clear result. The accused here voluntarily elected to present the defense of insanity. She voluntarily elected to present psychiatric testimony which contained incriminatory statements. Unlike Bremer, she was not compelled to submit to a mental examination. The right against self-incrimination does not permit the appellant to confine her testimony to evidence which she believes to be favorable to her, or to preclude the jury from hearing evidence which may be unfavorable to her. The single trial procedure, although it requires the appellant to elect between presenting evidence to show insanity or not presenting such evidence in order to avoid establishing her own guilt, does not violate her right against self-incrimination.

Judgment as to count one reversed.

Judgments as to counts two and three affirmed.

Costs to be paid by Baltimore County.

Lowe, J,

dissenting:

“ ‘This distinguishing of the accessory before the fact from the principal is a pure technicality. It has no existence either in natural reason or the ordinary doctrines of the law. For in natural reason the procurer of a crime is not chargeable differently from the doer; and a familiar rule of the common law is that what one does through another’s agency is regarded as done by himself. Even the common law of crimes makes no distinction in the punishment between a principal and an accessory, — the offence of each being a felony, of which the penalty was originally death. Likewise in morals, there are circumstances wherein we attach more blame to the accessory before the fact than to his principal; as, where a husband commands his wife or a master his servant to do for his benefit a criminal thing which, in his absence, is done reluctantly through fear or affection overpowering a subject mind.’ ” 1 Bishop, Criminal Law, 9th ed., § 673, as quoted in Watson v. State, 208 Md. 210, 218.

It is hardly conceivable that in the 20th Century, a court of last resort could so clearly recognize the utter purposelessness of so horrendously harmful a semantic distinction, yet must still recognize its viability. Worse yet is the fact that more than two decades have passed since this “pure technicality . . . [which] has no existence either in natural reason or the ordinary doctrines of the law ..,” was held up to ridicule in that case, and the Legislature has done nothing to correct it. Nor did our own attempt at flagging this fictional foolishness in Agresti v. State, 2 Md App. 278, 281, elicit a statutory erasure of that common law blot upon jurisdictional reasoning, as has been accomplished in many, if not most common law jurisdictions. See 40 Am. Jur. 2d, Homicide §§ 28, 29; 21 Am. Jur. 2d, Criminal Law §§ 120-124; 22 C.J.S. Criminal Law, § 82; see also 95 A.L.R.2d 175, 178, 187.

This has caused us factually to distinguish and interpretatively whittle away at the rule, but such intellectual exercises hardly do justice to the judicial system. Because it was not the legislative branch but the common law judicial system that created the technical monster, I would no longer await the action of a Legislature which may well be too occupied with matters of state to clean up the jurisprudential cobwebs we have accumulated. The common law is a growing thing and when it outgrows old garments not only of no further use but of potential harm, they should be discarded.

Although we are bound by the opinions of the Court of Appeals and the rule of stare decisis, that Court is not:

“ The doctrine of stare decisis, important as it is, is not to be construed as preventing us from changing a rule of law if we are convinced that the rule has become unsound in the circumstances of modern life,’ White v. King, 244 Md. 348, 354, 223 A. 2d 763 (1966).” Hearst Corp. v. St. Dep’t of A. & T., 269 Md. 625, 643-644.

There could be no case which cries out more for the obliteration of that distinction than the case at bar. The failure to do so gives rise to the hypothesis that a syndicate operator who hires his killings by a “hit man” while he lolls in the tropics, is not a “principal” involved in the murders that he has ordered, bought and paid for. The more practical difficulty may arise even upon retrial, where witnesses and evidence may no longer be available; or worse, where, as here, a retrial may not be available because the defendant has been found, on appeal, not guilty as a principal, and was not charged as an accessory. It is a fundamentally unfair to permit such traps to be laid for prosecutors as it would be to have them set for an accused. The concept of fair play which we recognize as a basic tenet of Anglo-American jurisprudence, Glickfield v. State, 203 Md. 400, 403, is not reserved solely for the accused. Society should share in it equally.

As to this case, while it offends me to be compelled factually to circumlocute an obstacle that should not exist, I find that both this Court and the Court of Appeals have done so in cases which strain far more than we would need in this case. In the past, we have strained to reverse, McBryde and Bland v. State, 30 Md. App. 357, as well as to affirm, Huff v. State, 23 Md. App. 211.

While we have held that a “principal differs from an accessory before the fact only in the requirement of presence”, Huff v. State, supra, 23 Md. App. at 215, and it is upon this distinction that the case before us now turns, the Court of Appeals has on at least one occasion not admitted to such a difference. In Vincent v. State, 220 Md. 232, 239, the Court said:

“It has long been held that whoever aids and abets the actual commission of a felony by some degree of assistance or encouragement, whether present at the place of perpetration or not, is a principal in the second degree.” (footnote omitted, emphasis added).

This case is one of only four cases cited in C.J.S. for the proposition that a principal in the second degree is one who aids and abets the commission of a crime “by some degree of assistance or encouragement, whether or not present at the place of perpetration.” C.J.S. Criminal Law § 85. It may very well be that the Court of Appeals has already taken the first step to obliterate the artificial distinction between a principal and an accessory before the fact. Even in Watson, supra, the presence or absence distinction is not recognized by the definition set forth at 217.

“An accessory before the fact is one who aids or abets the principal offender before or at the time of the commission of the crime.” (emphasis added).

Assuming, however, that this was oversight in Watson and in Vincent (since Vinsent did not discuss whether the defendant could have been an accessory before the fact instead of a principal), we note that the defendant there was held to be a principal in the second degree to armed robbery upon facts showing that he sat in the getaway car parked an unspecified distance, in an alley, from the gas station, he did not drive the car or plan the robbery, his job was to have a change of shirts ready for his confederates, to watch out for police, traffic signals and road conditions so that the group would stay within the traffic laws and not be picked up, to have the getaway car “ready”, and that his share of the loot was $5.00. There was no showing that he saw or could see the robbery from where he sat, or that he was to drive the vehicle to escape, but the Court said:

“While he was not actually present at the immediate place of the perpetration of the robbery, he was in close proximity and contiguity thereto rendering aid and assistance to those who were personally performing the hold up.” 220 Md. at 239.

No elaboration is needed to show that the complicity of Mrs. Williamson in this case was greater than Vincent’s, and that, awake or asleep, it can be rationally inferred that she was so situated as to be able to assist Merrick.

In Butina v. State, 4 Md. App. 312, defendant argued that he was. an accessry before the fact, not a principal in the second degree. He was held the latter upon evidence which showed that he was the driver of the car whose occupants purchased a can of gasoline the night of the fire, that a similar car was seen at the scene of the arson, that he protested when he heard of the planned burning and was told to stop the car near the scene of the crime because the perpetrators had to go to the bathroom, that he saw a big flash when the building ignited, and that he drove the perpetrators away. Although, as gleaned from the opinion, there was no evidence that Butina actually watched his fellows set the fire, or indeed could even see them (as opposed to the house) as they set the fire, the Court stated as fact the inference that he was in “ ‘close proximity or contiguity’ in a position to assist if necessary or to watch or prevent interference or detection or to encourage the commission of the crime at the moment of its commission .. ..” The Court, in accepting this inference, obviously used the evidence which tended to show that appellant knew there would be a burning long before he said he was told of the pian, to infer that he would be willing or able to help. The inference in the case before us is not a fraction harder to sustain in view of appellant’s hiring of Merrick.

In Huff, supra, the defendant also claimed that he was an accessory before the fact rather than a principal in the second degree. The evidence showed that appellant and Gorkran had known eacii other at least three weeks before the robbery, were seen together the evening before the robbery, and soon before the robbery, that appellant hailed a cab which double-parked before the bank as Gorkran went in to rob it, and that he silently accepted a portion of the proceeds in the cab as it left the scene. The jury was allowed to use appellant’s prior association with Corkran in particular places and on particular occasions, and appellant’s silent acceptance of a share of the proceeds, to explain the nature of his presence at the scene, i.e., his intent in hailing the cab and waiting outside the bank. Quoting from Foster v. State, 11 Md. App. 40, rev’d on other grounds, State v. Foster, 263 Md. 388, this Court in Huff explained that the relation of the accused to the crime is for the jury to decide. Id. at 215. Thus, while the facts in Huff showing presence are somewhat stronger than in the case we here consider, the proximity of Huff to the scene was given a great deal of mileage on the basis of inferences taken from surrounding facts.

Finally, in McBryde, supra, it was held that defendants were principals in the second degree instead of accessories before the fact upon evidence that they were in a car which cased a store and, at a signal from a third party who had originally been in the car with them, drove the car into a nearby alley. Appellants could not see the store from their location, but it was inferred from the fact that appellants left the motor running that they were so situated as to be able to aid the actual robber:

“The state argues that because the appellants’ automobile was parked out of sight of the 7-Eleven store the appellants were not constructively present. This reads the definition of constructive presence too narrowly. The test is not whether the appellants could see the 7-Eleven store, but whether they were acting in concert with McLaughJan in furtherance of a common scheme and were so situated as to aid McLaughlan in his escape.” Id. at 360.

This factual conclusion resulted in a reversal of the convictions as accessories before the fact, on the theory that a defendant cannot be convicted as an accessory upon facts showing he is a principal.

In this case it can certainly be inferred, from: the fact that appellant hired Merrick; the fact that appellant was only a few yards in space from the murder scene; the fact that appellant left the intoxicated victim in a vulnerable position; and the fact that appellant obviously knew of the impending murder attempt in July or August (a month before the actual murder) as evidenced by her two conversations with her brother on that night in which she effectively told him to mind his own business; that appellant was so situated as to be able to aid Merrick.

If semantics are needed, one who hires an agent or employee is that agent’s principal, but call her what you will — principal or accessory — appellant was as guilty of murder as he whom she hired to do the deed. I could not let a semantic distinction with no foundation of reason or purpose so hamstring society. Justice and fair play, procedural or substantive, should be jealously adhered to — but for society to be compelled to carry the expense of retrying this woman on the same facts, subjecting her to the same punishment, again providing her with a public defender, and undoubtedly another appeal, for what is precisely the same crime by a different epithet, is ridiculous. Worse yet if she cannot be retried. We begin to understand Mr. Bumble’s view of the law.

      . McBryde and Bland v. State, 30 Md. App. 357, 359, 352 A. 2d 324, 326 (1976); Agresti v. State, 2 Md. App. 278, 281, 234 A. 2d 284, 286 (1967).

      . McBryde and Bland, supra, 30 Md. App. at 360, 352 A. 2d at 327; Huff v. State, 23 Md. App. 211, 214, 326 A. 2d 198, 201, cert. denied, 273 Md. 721 (1975).

      . Agresti, supra, 2 Md. App. at 280, 234 A. 2d at 285.

      . McBryde and Bland, supra, 30 Md. App. at 359, 352 A. 2d at 326; Huff, supra, 23 Md. App. at 214, 326 A. 2d at 201.

      . McBryde and Bland, supra, 30 Md. App. at 360, 352 A. 2d at 326; Huff, supra, 23 Md. App. at 215, 326 A. 2d at 201; Sanders v. State, 1 Md. App. 630, 646, 232 A. 2d 555, 564 (1967).

      . 23 Md. App. at 215, 326 A. 2d at 201.

      . In view of this decision, the appellant’s contention with respect to her sentencing for murder need not be considered.

      . MD. CONST. Dec. of Rights art. 22.

      . Tull v. State, 230 Md. 596, 601, 188 A. 2d 150, 153 (1963); Avey v. State, 9 Md. App. 227, 230, 263 A. 2d 609, 611, cert. denied, 258 Md. 725 (1970); Sweeney v. State, 6 Md. App. 431, 439, 252 A. 2d 9, 14 (1969).

      . 260 Md. 504, 273 A. 2d 164 (1971), mod., 408 U. S. 938, 92 S. Ct. 2870 (1972).

      . Bartholomey, supra, 260 Md. at 526-27, 273 A. 2d at 176.

      . 18 Md. App. 291, 307 A. 2d 503, cert. denied, 269 Md. 755 (1973), cert. denied, 415 U. S. 930 (1974).

      . Bremer, supra, 18 Md. App. at 316-18, 307 A. 2d at 519-20.

      . But cf. Md. Code, Art. 27, § 6.

      . Although, as pointed out by the majority, “there is nothing to show that she was awake at the time of the murder”, we also note that there was nothing to show she was asleep either.

      . This logically follows, for the test is ability to help. Presence is not to be determined by mere contiguity of space. Wharton, Criminal Law and Procedure § 107.


source: Caselaw Access Project

author: Liss, J.,

license: Public Domain

text:
    JOSEPH P. HORNING, JR. and LAWRENCE E. HORNING T/A Horning Brothers v. ALBERT R. HARDY et al.
    [No. 818,
    September Term, 1976.]

      Decided June 10, 1977.

      The cause was argued before Morton, Davidson and Liss, JJ.

      Bernard F. Goldberg, with whom was Howard Silverstein on the brief, for appellants/cross-appellees.

      E. Alexander Adams, with whom were Cornelius F. Sybert, Jr., and Sybert, Sybert & Nippard on the brief, for cross-appellants/appellees.

      Robert E. Wieder for appellees Martins.
   Liss, J.,

delivered the opinion of the Court.

To unravel its complexities, this case on its face would seem to require the services of a “Philadelphia lawyer,” but when the parties and issues of the several appeals have been sorted out, we find there are but two basic issues to be decided.

The first issue concerns the ownership of a parcel of land consisting of all or part of five lots shown on a plat of a subdivision known as Timberleigh Village in Howard County. The original suit in this case, filed by Albert C. Hardy (appellee and cross-appellant herein), consisted of a two count declaration alleging that William B. Martin and his wife, Phyllis (cross-appellees herein), and Joseph P. Horning, Jr. and Lawrence E. Horning, partners, trading as Horning Brothers (appellants and cross-appellees herein), had committed trespass quare clausum fregit on land owned by the Hardys and sought damages from the Hornings and their ejectment from the property allegedly owned by the Hardys.

The cross-appellees, Hornings, filed a cross claim against the Martins, from whom they had purchased the lots in question, seeking damages based on the special warranty recited in their deed. In addition, they filed an amended counter-claim against the Hardys in which they sought compensatory and punitive damages for malicious interference with the contracts between the Hornings and various purchasers of homes erected by the Hornings on the disputed lots, as well as damages for slander of title.

After a number of preliminary rulings which are not here in dispute, the case came on for trial in the Circuit Court for Howard County before Judge James Macgill sitting without a jury.

In the trial below, the Hardys claimed ownership of the disputed land by virtue of their title deeds and by reason of adverse possession for the required 20 year period. In their appeal briefs and in argument they sought to have this Court accept ~~ if necessary to their cause — the additional alternative that their title was established by a doctrine novel to Maryland law known as the doctrine of boundary by acquiescence. Counsel for the Hardys have submitted a thorough discussion of the law governing this doctrine in other jurisdictions, but we shall not consider this ground in this appeal. Whether the doctrine of boundary by acquiescence should or should not be adopted in Maryland will have to await a case in which the issue is raised and decided in the trial court. In this case, the appellees/cross-appellants failed to present and preserve this issue in the court below, and it will not be decided for the first tijtne on appeal. Rule 1085.

Judge Macgill, who presided at the five day trial in this matter, personally viewed the property in question, walked the boundary lines as surveyed, and prepared a detailed opinion showing the title history of the general area and specifically the area in dispute. We must commend the trial court for a remarkably thorough and expert analysis of the ownership of the lots claimed by the contesting parties in this suit. We are mindful of the strictures of Rule 1086 which require us to review a non-jury case on the law and the evidence but preclude our setting aside the judgment of the lower court on the evidence unless that judgment is clearly erroneous. We do not find such error in the court’s conclusion as to the ownership of the lots in question and shall adopt the trial court’s excellent opinion as to that issue, adding such additional authorities as we deem appropriate:

“The Hardys claim ownership of the land in dispute by virtue of their title deeds and also by virtue of adverse possession for the statutory period. It appears to be agreed that whether or not the disputed area lies within the area covered by their title deeds depends upon the correct location of the seventh line of a tract of land called ‘Peace.’ (There is a certain irony in the name under the present circumstances). This tract evidently is an early grant, dating from the eighteenth century. It was not offered in evidence. The writer, in attempting to arrive at a conclusion as to where the title lines of the respective parties lie, has prepared a plat which shows the locations, or approximate locations of the various deed lines as it has plotted them. A copy of this plat is attached to this opinion and should be considered a part of it.”

Judge Macgill thereupon proceeded to an exhaustive and comprehensive fact finding discussion of the metes and bounds of the property involved in the dispute. It would serve no useful purpose to repeat that discussion in this opinion.

The trial court then gave its reasons for its conclusion that the appellees had not met their burden of proof:

“This Court finds that the plaintiffs have not established, by a preponderance of the evidence, that the disputed area lies within the lines of their title deeds. It believes, on the contrary, that the area in dispute lies on the easterly side of the seventh line of ‘Peace’ and is within the title lines of the defendants. This conclusion is not arrived at with a conviction of certainty, there is much that does not appear to be reconcilable in the various deed descriptions but in actions of both trespass and ejectment, the plaintiffs must recover on the strength of their own title and not by the weakness of the title of the defendants. Ferittta v. Bay Shore Development Corporation, 252 Md. 393, [250 A. 2d 69 (1969)]; Janoske v. Friend, 261 Md. 358, [275 A. 2d 474 (1970)]; Giles v. diRobbio, 186 Md. 258, [46 A. 2d 611 (1946)]; Stottlemyer v. Kline, 255 Md. 635, [259 A. 2d 52 (1969)].
“As to the plaintiffs’ claim of title by adverse possession to the wooded area in question, there was testimony that they had cut firewood and timber and dumped stones easterly of the boundary line claimed by the defendant for a period in excess of twenty years. There was also testimony as to the location of old barbed wire fences but the significance of these locations is, at best, ambiguous. Cf. Stinchcomb v. Realty Mortgage Co., 171 Md. 317, [188 A. 2d 790 (1937)]. It has been said that in order to establish adverse possession of unenclosed timberland, evidence of the cutting and hauling of timber therefrom is not of itself sufficient, because such acts might be nothing more than successive trespasses. Malone v. Long, 128 Md. 377, [97 A. 643 (1916); Schlueter v. Ackerman, 215 Md. 173, 137 A. 2d 179 (1957)]. The same is true as to evidence of digging and selling sand. Parker v. Wallis, 60 Md. 15 [(1883)]. It was there said that ‘To work an ouster, the acts must be such as indicate to the world a claim of right to the land — acts of exclusive and continuous possession, open and notorious ...’ [Id at 19]. In Goen v. Sansbury, 219 Md. 289 [297, 149 A. 2d 17, 22 (1959); the law was quoted that ‘the holder of the older and better title has constructive possession of all of his land; and the holder of the junior and inferior title that overlaps it must, if he is to acquire good title, enter upon and actually hold adversely and continuously for the requisite period the actual boundary claimed by the older and better title ....’ ‘[0]ne who enters upon the land of another, though under color of title, gives no notice to that other of any claim, except to the extent of his actual occupancy. [Id at 294, 149 A. 2d at 20]. (underscoring supplied). Furthermore, a mere statement of ownership, absent actual physical possession, is inadequate to constitute adverse possession. White v. Hardisty, 220 Md. 152, [151 A. 2d 764 (1959)].
“This Court having found that the plaintiffs are not entitled to prevail in their actions, it follows that the cross-claimants, Joseph P. Horning, Jr. and Lawrence E. Horning are not entitled to prevail against the defendants, William B. Martin and Phyllis B. Martin.”

The second issue to be determined in this appeal is whether the trial court erred in entering its judgment in favor of the appellees (Hardys) on the amended counter claim of the appellants (Hornings). We find no error and shall affirm.

The Hornings’ amended counter claim contended that they were entitled to damages from the Hardys because of an alleged slander of the Hornings’ title to the land in dispute and because of an alleged malicious interference with contracts between- the Hornings and purchasers of buildings constructed by the former on that land. The parties and the trial court treated the two claims as one — at the trial, in the briefs, and on argument — because legally and factually the absence of malice, if established, would be dispositive of both claims. In this Court the parties have primarily concerned themselves with the issue of slander of title.

As previously indicated in this opinion, the Hardings purchased the property here involved from the Martins in August of 1978. Later that month Albert R. Hardy, one of the appellees, communicated with an agent of the Hornings and advised him that the Hardys claimed ownership to a portion of the land purchased from the Martins. The Hornings immediately employed a surveying firm which after studying the property boundaries reported that the disputed land was owned by the Martins at the time of conveyance to the Hornings. In September, 1973 counsel for the Hardys notified the Martins and Hornings that “further development of the disputed parcel of land will be done at your own risk.” From that date until October 9, 1974, when the Hardys filed suit, there was no further communication between the parties. In the interim, the Hardys had employed a surveying firm which reported that four of the five houses being constructed by the Hornings were on land owned by the Hardys. Settlement for one of the houses built on a lot in the disputed area was scheduled for October 10, 1974. On the day of settlement, while the adjustments were being calculated, the lending institution and purchasers received a phone call from the Hardys’ attorney advising them that a suit claiming ownership of the disputed land had been filed the preceding day. Settlement was immediately aborted, and no sales or settlements have been consummated since that date for any of the houses erected on the land claimed by the Hardys. The Hornings contend that the Hardys’ claim was false and amounted to a slander of their title to the disputed land.

Prosser, Law of Torts, § 128 (4th Ed., 1971) suggests that the tort we are here discussing has been incorrectly designated as “slander of title.” Such nomenclature derives from the earliest cases — decided before 1600 — where it applied primarily to oral aspersions on the plaintiffs ownership of land, which aspersions prevented the owner from leasing or selling the land. Prosser points out that from the beginning the tort was recognized as being only loosely allied to defamation of the person and was considered instead to be an action on the case for the special damage resulting from the defendant’s interference. As the years progressed, the tort was expanded to include written aspersions on property, whether land or personalty, and the disparagement of the quality of property. The tort has, therefore, been known as “disparagement .of property,” “slander of goods,” and “trade libel.” It has continued to grow until now it includes interference with non-commercial relations, such as the expectancy of a marriage, the right to remain in the United States rather than be deported, or the false reporting of payments to an employee by an employer which subjects him to an income tax prosecution. Prosser contends that the best and most inclusive name for the tort is “injurious falsehood,” first suggested by Sir John Salmond in his treatise on the law of torts.

The Court of Appeals has had before it only two cases involving “slander of title.” In the interest of clarity we believe it appropriate to adopt the nomenclature suggested by Prosser and that this controversy — as well as those which may hereafter fall within the guidelines which we have stated — should be considered as the tort of “injurious falsehood.”

The first case involving an action of this kind was reached by the Court of Appeals in 1865 in Gent v. Lynch, 23 Md. 58. The Court, without discussing the elements of the tort, held that in order to recover the plaintiff must show malice, which it did not define.

A much more valuable contribution to the clarification of the tort in Maryland was made by Judge Wilson K. Barnes in the case of Beane v. McMullen, 265 Md. 585, 291 A. 2d 37 (1972). Quoting extensively from Prosser, Judge Barnes said:

“Injurious falsehood or disparagement, then, may consist of the publication of matter derogatory to the plaintiffs title to his property, or its quality, or to his business in general, or even to some element of his personal affairs, of a kind calculated to prevent others from dealing with him, .or otherwise to interfere with his relations with others to his disadvantage. The cause of action founded upon it resembles that for defamation, but differs from it materially in the greater burden of proof resting on the plaintiff, and the necessity for special damage in all cases. The falsehood must be communicated to a third person, since the tort consists of interference with the relation with such persons. But the plaintiff must plead and prove not only the publication and its disparaging innuendo, as in defamation, but something more. There is no presumption, as in the case of personal slander, that the disparaging statement is false, and the plaintiff must establish its falsity as a part of his cause of action. Although it has been contended that there is no essential reason against liability where even the truth is published for the purpose of doing harm, the policy of the courts has been to encourage the publication of the truth, regardless of motive.
“In addition, the plaintiff must prove in all cases that the publication has played a material and substantial part in inducing others not to deal with him, and that as a result he had suffered special damage. The analogy is thus to the kind of personal slander which does not charge a crime or loathsome disease, or defame him in his business, profession, or office, and so is not actionable unless damage is proved.
“There is liability when the defendant acts for a spite motive, and out of a desire to do harm for its own sake; and equally so when he acts for the purpose of doing harm to the interests of the plaintiff in a manner in which he is not privileged so to interfere. There is also liability when the defendant knows that what he says is false, regardless of whether he has an ill motive or intends to affect the plaintiff at all. The deliberate liar must take the risk that his statement will prove to be economically damaging to others; and there is something like the ‘scienter’ found in an action of deceit. Any of these three is sufficient to constitute ‘malice’ and support the action. But in the absence of any of the three there is no liability, where the defendant has made his utterance in good faith, even though he may have been negligent in failing to ascertain the facts before he made it.” Id. at 607-09.

The law of defamation has been in a state of flux in the Supreme Court of the United States since 1964, when the decision in N.Y. Times v. Sullivan, 376 U. S. 254, 84 S. Ct. 710, 11 L.Ed.2d 686, 95 A.L.R. 2d 1412 (1964) was filed. Gertz v. Welch, 418 U. S. 323, 94 S. Ct. 2997, 41 L.Ed.2d 789 (1974) held that in a purely private defamation action the States were free to adopt their own standard of liability for the defamation defendant but could not impose liability without fault.

The Court of Appeals, speaking through Judge Levine in Jacron Sales Co., Inc. v. Sindorf 276 Md. 580, 350 A. 2d 688 (1975), stated that in cases of purely private defamation it would adopt as a matter of state law the standard of negligence as set forth in Restatement (Second) of Torts, § 580B (Tentative Draft #21, 1975), which states that liability may accrue only if the defendant a) knows that the statement is false and that it defames the other, b) the defendant acts in reckless disregard of these matters, or c) acts negligently in failing to ascertain them. The opinion further held that the quantum of proof required of the plaintiff was the usual negligence standard of the preponderance of the evidence.

In the case here being considered, there is one further complicating factor: the assertion of a qualified privilege by the appellees. Prosser, supra, at pp. 944-45 states the privilege to be as follows:

“If [the defendant] has a present, existing economic interest to protect, such as the ownership or condition of property ... he is privileged to prevent performance of the contract of another which threatens it; and for obvious reasons of policy he is likewise privileged to assert an honest claim, or bring or threaten a suit in good faith, to exercise the right of petition to public authorities or to settle his own case out of court.”

Further justification for the recognition of the conditional privilege is stated in 1 Harper and James, The Law of Torts, § 6.2 (1956):

“If, knowing that another is offering or about to offer land or other thing for sale as his own, he fails to take advantage of a readily available opportunity to inform the intending purchaser, or those likely to become purchasers, as where the sale is by auction, of his claim to the thing, he may preclude himself from afterwards asserting it against the purchaser. Therefore, he must be permitted without fear of liability to protect the enforceability of his claim by asserting it before the purchase is made.”

Jacron, supra, makes it clear that the adoption of the negligence standard of fault in defamation cases does not make obsolete the defense of conditional privilege. In a case where a common law conditional privilege is asserted and found as a matter of law to exist, “the negligence standard of Gertz is logically subsumed in the higher standard for proving malice, reckless disregard as to truth or falsity.. ..” Id. at 600, 350 A. 2d at 700. If the plaintiff, faced with a conditional privilege, is unable to prove the malice necessary to overcome that defense, the proof of the lesser standard of negligence would not permit a recovery. See Stevenson v. Baltimore Club, 250 Md. 482, 243 A. 2d 533 (1968). In conditional privilege cases, the privilege may be lost either by proof of “constitutional malice” in the form of reckless disregard for truth or falsity or knowing falsehood or by proof of common law malice in the form of spite or ill-will.

The question of whether a conditional privilege exists is a matter of law for the court. Whether the privilege has been abused or forfeited by malice is a question of fact for the trier of the facts. IBEW, Local 1805, AFL-CIO v. Mayo, 35 Md. App. 169, 370 A. 2d 130 (1977). The trial court found as a matter of law that the interference by Hardy with the Hornings’ title was privileged. It concluded that the “original plaintiffs asserted an honest claim to the land in question which they had reason to believe was part of their.property and they therefore had a present economic interest to protect.” We hold this conclusion to be correct, particularly when it is obvious that after the long and involved trial in this case the appellees failed to prevail, not because the Hornings were able to establish conclusively their title but, because the appellees were unable to meet their burden of proof to the satisfaction of the trier of the facts.

There is absolutely no evidence that the appellees acted with knowledge of the falsity of their claim or that they were motivated by ill-will or spite. In the case of Kapiloff v. Dunn, 27 Md. App. 514, 540, 343 A. 2d 251, 268 (1975), Chief Judge Orth (now ah associate judge of the Court of Appeals) discussed the standards to be applied in determining whether a court could find a reckless disregard of the truth or falsity of a statement. Quoting from St. Amant v. Thompson, 390 U. S. 727, 88 S. Ct. 1323, 20 L.Ed.2d 262 (1968), Judge Orth said:

“These cases are clear that reckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.”

Appellants urge strenuously that the failure of the appellees to act in good faith to verify the boundaries of the land which they claimed and in their failure to secure expert opinion as to the validity of their claim is evidence of a reckless disregard for the truth. This contention ignores, however, our holding in Kapiloff, supra, where we said:

“Although the test for reckless disregard does not avail itself of easy application, one point is clear: mere failure to investigate, in and of itself, is not sufficient evidence under the New York Times privilege____ Since failure to investigate cannot satisfy the constitutional test of reckless disregard, we cannot perceive how mere failure to seek assistance of educational experts, without more, could satisfy that standard.” Id. at 543, 343 A. 2d at 269.

The trial court found as a fact that there was no abuse of the conditional privilege and we find no plain error in its conclusions. Rule 1086 requires that in a case tried below without a jury that we not set aside a judgment of the lower court on the evidence unless we find the trial court clearly erroneous. We are also required to give due regard to the opportunity of the trial court to judge the credibility of the witnesses. Applying these standards, we find no reversible error.

Judgments affirmed.

Costs to be dimded between Homings and Hardys.

      . “Many historians credit Andrew Hamilton with being the one who, through his successful defense of John Peter Zenger, not only established in the New World the freedom of the press but also created the appellation you here have enjoyed of being ‘Philadelphia Lawyers.’ ” Lloyd Wright, The President's Annual Address: Milestones and Concepts of the Lawyer Citizen, 41 A.B.A.J. 797 (1955).

      . Additional members of the Hardy family were joined as party plaintiffs pursuant to Maryland Rules of Procedure 320 B 1.

      . See 50 Am. Jur. 2d Libel and Slander §§ 539-51, at 1058-69; 53 C.J.S. Libel and Slander §§ 269-79, at 391-404; 1 Harper and James, The Law of Torts §§ 6.1-6.3 at 474-86 (1956); 3 Restatement, Torts §§ 624-25, at 325-32, § 629 at 338-42 (1938).


author: Melvin, J.,

text:
    BLAKE CONSTRUCTION COMPANY et al. v. DAVID L. STEARMAN et al.
    [No. 869,
    September Term, 1976.]

      Decided June 10, 1977.

    The cause was argued before Thompson, Lowe and Melvin, JJ.

      William N. Rogers, with whom were Douglas S. Hoff and Carr, Jordan, Coyne & Savits on the brief, for appellants.

      George P. Haldeman, with whom were Brault, Graham, Scott & Brault in the brief, for appellees.
   Melvin, J.,

delivered the opinion of the Court.

This case comes to this Court upon the grant of the plaintiffs' motion to suspend the operation of Maryland Rule 530 by the Circuit Court for Montgomery County (Shearin, J.). The case originated nearly five years ago, on 23 August 1972, with the filing of a declaration by the plaintiffs (appellees) against the defendants (appellants), Dechard & McLaughlin, Inc., and Blake Construction Co., Inc., alleging damages resulting from negligence and breach of contract in connection with the installation of plumbing equipment in a multi-unit apartment building owned by the plaintiffs.

The appellants, defendants below, contend that Judge Shearin abused his discretion by keeping the case alive. The appellees, plaintiffs below, have filed with their brief a motion to dismiss the appeal as being premature. We agree with the appellees. Consequently, the appeal must be dismissed and we do not reach the issue raised by the appellants.

The reason this appeal is premature is because the order appealed from is not a judgment, “which is so far final, as to settle and conclude the rights of the parties] involved in the action, or denying to the parties] the means of further prosecuting or defending the suit”. See, Nu Car Carriers, Inc. v. Everett, 33 Md. App. 310 (1976) where we said, at 310, 311:

“The Annotated Code of Maryland, Courts Article, § 12-301, provides in part that ‘ * * * a party may appeal from a final judgment entered in a civil * * * case by a circuit court/ The term ‘final judgment’ is defined in § 12-101 (f) to mean * * * a judgment, decree, sentence, order, determination, decision, or other action by a court, including an orphans’ court, from which an appeal, application for leave to appeal, or petition for certiorari may be taken.’ The apparent dilemma created by defining a phrase in terms of the thing being defined is explained by a Revisor’s Note under subsection (f). It says, ‘This definition does not attempt to specify what is an appealable final order. That is left to case law, as at present.’
“The case law has been consistent for well over 100 years. In Hazlehurst v. Morris, 28 Md. 67 (1868), the Court of Appeals said, at 71:
‘The law has been clearly settled in this State, that ‘no appeal can be prosecuted to this court until a decision has been had in the court below, which is so far final, as to settle and conclude the rights of the party involved in the action, or denying to the party the means of further prosecuting or defending the suit. When the proceedings below shall be terminated, an appeal will then lie, and all the errors of the court below, in the progress of the cause, will' be proper subjects for complaint of the party, and for the correction of this court.' Boteler v. State, 7 G. & J. 112; Welsh v. Davis, 7 Gill. 366; Green v. Hamilton, 16 Md. 328. The order, passed in the court below, did not settle and conclude the rights involved in the cause; nor was it of such a character as to deny to the party 'the means of defending the suit, and was not, therefore, so far final as to be a proper subject of appeal. This appeal must, therefore, be dismissed.' ”

“In Brooks v. Ford Motor Credit Co., 261 Md. 278, 274 A. 2d 345 (1971), the Court of Appeals said, at 280:

‘We have consistently held that appeals will lie only from final judgments which settle the rights of the parties or conclude the cause, Tvardek v. Tvardek, 257 Md, 88, 261 A. 2d 762 (1970); Hillyard Constr. Co. v. Lynch, 256 Md. 375, 260 A. 2d 316 (1970).' ”

In Hillyard Construction Company v. Lynch, 256 Md. 375, 379 (1970), the Court of Appeals, quoting from the early case of Boteler v. State ex rel. Chew, 7 G. & J. 109 (1835) stated the reason for the rule against piecemeal appeals:

“To permit an appeal from any decision of the Court below, which does not finally settle the rights of the party, or conclude the cause, would enable either plaintiff, or defendant to protract the suit to
* * *
“It is time enough for a party to apply to this Court for redress, when it is ascertained that he is to be injured by the judgment of which he complains.”

The appellants argue that “this action is appealable under the doctrine of Tydon v. Spong, 237 Md. 107, 205 A. 2d 220 (1964) and Williams v. Snyder, 221 Md. 262, 155 A. 2d 904 (1959)”. We do not agree.

In Williams v. Snyder, supra, an enrolled judgment of non pros had been entered for the defendant. On motion of the plaintiff, the judgment had been set aside and the suit reopened for trial. The defendant, appealed the order setting aside the enrolled judgment. The Court held the order was immediately appealable because:

“... [w]hen the judgment became enrolled the defendant acquired a substantial right in the judgment of non pros of which he cannot be validly deprived except upon a showing of fraud, mistake or irregularity. Rule 625, supra; Poe, op. cit, supra, § 390. Therefore, when the lower court vacated the judgment of non pros and reopened the case for trial — which had the effect of reinstating a cause of action which was otherwise barred by limitations — the defendant had an immediate right of appeal to this Court.” 221 Md. at 268.

In Tydon v. Spong, supra, there was an appeal from the action of the lower court in restoring to the trial docket a damage suit that, under a local circuit rule, had been removed therefrom after it had remained untried for a certain length of time and had not been reinstated by either party within a certain time after it had been removed. The rule provided that, in such circumstances, “said cause shall be considered as non prossed ...On the authority of Williams v. Snyder, supra, the Court of Appeals held that the order appealed from was immediately appealable.

Whatever else may be included within the “doctrine” of the two cases, it is clear that in both cases the cause of action had been effectively terminated by an enrolled judgment or, as in Tydon, a rule of court that had the same effect.. Any action of the trial court that disturbs the “substantial right” of a party in such a judgment is immediately appealable. See also First Federated Community Trust Corporation v. / Commissioner of Securities, 272 Md. 329, 333 (1974).

In the present case, the cause of action has never been terminated. The defendants have never acquired any rights, “substantial” or otherwise, in any judgment or order in their favor. The effect of Judge Shearin’s order suspending the operation of Rule 530 was not, therefore, to “reinstate” or reactivate an interred case. Unlike the causes of action in Tydon and Williams, the instant cause of action has never been interred. The order preventing it from becoming interred is therefore interlocutory in nature. Only those interlocutory orders specifically mentioned in Courts Art., § 12-303 are immediately appealable. The order in the case sub judiee is not one of those mentioned. Consequently we are without jurisdiction to entertain this appeal.

Motion to dismiss appeal granted.

Appellants to pay the costs.


author: Menchine, J.,

text:
    LEASE-A-CAR, INC. et al. v. THOMASSEN LINCOLN MERCURY, INC.
    [No. 948,
    September Term, 1976.]

      Decided June 10, 1977.

    The cause was argued before Menchine, Davidson and Lowe, JJ.

      Steven A. Skalet for appellants.

      Delverne A. Dressel and Rourke J. Sheehan, with whom were Dickerson, Nice, Sokol & Horn on the brief, for appellee.
   Menchine, J.,

delivered the opinion of the Court.

Lease-A-Car, Inc. (Lease-A-Car) and Control Leasing Corporation (Control) filed an action at law in the Circuit Court for Montgomery County against Thomassen Lincoln Mercury, Inc. (Thomassen) alleging in separate counts, (1) wrongful conversion of a Lincoln Continental Automobile and (2) intentional and wrongful interference with a contract between Lease-A-Car and one Bentley V. Plummer (Plummer).

Thomassen filed a general issue plea and a plea of res judicata. The latter plea alleged that actions concluded in the United States District Court for the District of Maryland entitled Plummer, et al v. Thomassen, Lease-A-Car and another and a related cross-claim were complete bars to recovery in the subject action.

Thomassen’s motion for summary judgment against Lease-A-Car and Control, grounded upon the principle of res judicata, was granted by the trial judge.

Lease-A-Car and Control have appealed from the judgment in favor of Thomassen, contending that the subject action was not barred by the United States District Court litigation.

Pertinent United States District Court Proceedings

Bentley V. Plummer filed an action in the United States District Court for the District of Maryland against Thomassen Lincoln Mercury, Inc. (defendant in the subject proceedings). Plummer sought damages from Thomassen for alleged conversion of a Lincoln Continental Mark IV Automobile allegedly leased to Plummer by Lease-A-Car, and for other alleged wrongs incident to that conversion.

Plummer filed a separate action in the District Court against Lease-A-Car seeking damages for alleged negligence causing: trespass q.c.f; conversion; interference with prospective economic advantage; libel; intentional harm; tortious misrepresentation; breach of warranty; breach of contract; and breach of third party beneficiary contract.

Both actions in the District Court related to events following a lease by Lease-A-Car to Plummer of a Lincoln Continental Mark IV automobile and the subsequent seizure of that vehicle by Thomassen.

The actions were consolidated by District Court order.

Lease-A-Car answered the Plummer action and filed a cross-claim against Thomassen alleging in substance:

1. That Lease-A-Car purchased the automobile from Thomassen.
2. That the purchase price was fully paid by check on November 9,1972.
3. That although on the same date Thomassen had informed Lease-A-Car that payment had not been received, it had agreed to take no action to collect the debt or repossess the automobile on assurances that payment was forthcoming.
4. That despite payment Thomassen repossessed the vehicle.
5. That Thomassen thereafter wrongfully delayed return of the vehicle, and
6. That the vehicle was damaged in the course of repossession.

Lease-A-Car claimed “$3,000.00 for damages to said automobile” and judgment “for all sums that may be adjudged against it in favor of [Plummer].”

In due course the consolidated actions came to non-jury trial before the Honorable James R. Miller, Jr., United States District Court Judge. On January 23, 1975, an order was passed that included the following:

“3. That the case between Bentley V. Plummer, plaintiff against Lease-A-Car, Inc.... defendant, is dismissed.
4. That the cross-claim of Lease-A-Car, Inc. against Thomassen Lincoln-Mereury, Inc. is dismissed.
6. That judgment be and hereby is entered in favor of plaintiff, Bentley V. Plummer against defendant, Thomassen Lincoln-Mercury, Inc. for the sum of Seven Hundred Twenty-Nine Dollars and Thirteen Cents ($729.13).”

The Proceedings Below

Thomassen moved for summary judgment upon the ground that “[Lease-A-Car’s] claim set forth in this cause of action was previously adjudicated and determined by a court having a jurisdiction both of the subject matter and over the parties. Accordingly, the doctrine of res judicata is a final and complete bar to this action.” Attached thereto was an affidavit outlining the proceedings in the United States District Court as previously summarized herein.

Lease-A-Car, opposing the motion for summary judgment, filed an affidavit, in form complying with Maryland Rule 610 b, that asserted the following grounds for denial of the motion:

“That at the Pre-trial in the case of Plummer et al v. Thomassen Lincoln Mercury, Inc. et al, held on January 14, 1975, Lease-A-Car, Inc. moved to amend its Cross-claim against defendant Thomassen Lincoln Mercury, Inc. by including counts alleging wrongful conversation [sic] and interference with contractual relations. These requests were denied by the Court and Lease-A-Car, Inc. was not permitted to amend its Cross-claim to include these counts.
“That at the trial in January, 1975, no evidence was presented by Lease-A-Car, Inc. or Thomassen Lincoln Mercury, Inc. with respect to the various cross claims filed by the parties.”

The trial judge granted summary judgment.

On appeal Lease-A-Car and Control contend that res judicata does not apply:

1. Because under Federal Rule 13 (g) cross-claims are permissive so that “there is no requirement that any claim be raised by cross-claim in order to avoid a future assertion of the doctrine of res judicata.”

2. Because “res judicata cannot apply to causes of action which were specifically excluded from the prior litigation.”

3. Control contends, additionally, that res judicata does not operate as a bar to its claim because it “was not a party to the prior action.”

Effect of Form of Original Cross-Claim

Appellants contend that the fact that a cross-claim is permissive rather than compulsory under Federal Rule 13 (g) operates to prevent the bar of res judicata when such claim is prosecuted to final judgment. They have failed to cite any case in support of this novel contention. We think their failure is occasioned by the absence of any decision so holding.

The initiation of an action by a plaintiff in any civil cause is permissive in the sense that its filing is entirely volitional. This fact has no bearing upon the doctrine of res judicata. The true principle of that doctrine was thus succinctly stated by the Supreme Court in Southern Pacific Railroad Company v. United States, 168 U. S. 1, 48-49, 18 S. Ct. 18, 27, 42 L. Ed. 355, 377 (1897):

‘“. . . a right, question or fact distinctly put in issue and directly determined by a court of competent jurisdiction, as a ground of recovery, cannot be disputed in a subsequent suit between the same parties or their privies; and even if the second suit is for a different cause of action, the right, question or fact once so determined must, as between the same parties or their privies, be taken as conclusively established, so long as the judgment in the first suit remains unmodified.’ ”

Lease-A-Car selected the United States District Court for the District of Maryland as its tribunal of choice in asserting its claim against Thomassen. The unappealed final judgment of that Court forecloses any dispute as to a right, question or fact put in issue and determined therein. The permissive character of the cross-claim is utterly immaterial.

The Extent of the Bar of the Judgment

In Frontier Van Lines v. Md. Bank & Trust Co., 274 Md. 621, 336 A. 2d 778 (1975), Judge Singley for the Court of Appeals discussed in some depth the extent of the adjudicative effect of prior judgments of State courts, saying at 623 [780]:

“The rule of our cases was stated for the Court by Judge Marbury in Alvey v. Alvey, 225 Md. 386, 390, 171 A. 2d 92, 94 (1961):
‘The doctrine of res judicata is that a judgment between the same parties and their privies is a final bar to any other suit upon the same cause of action, and is conclusive, not only as to all matters that have been decided in the original suit, but as to all matters which with propriety could have been litigated in the first suit, where the court had jurisdiction, proceedings were regular, and his omission was due to his own negligence, [citing cases]’ ”

He added at 624-25 [780-81]:

“As Judge Bowen, in dismissing the action, after commenting on the similarity of the two declarations, quite correctly noted,
‘There is an absolute bar to a second suit if the subject matter was or should have been litigated in the first between the same parties . . . .’
“The ruling of the trial court is in full accord with the principle set forth by this Court in Sterling v. Local 438, 207 Md. 132, 140, 113 A. 2d 389, 393 (1955):
‘If the second suit is between the same parties and is upon the same cause of action, a judgment in the earlier case on the merits is an absolute bar, not only as to all matters which were litigated in the earlier case, but as to all matters which could have been litigated. ’ (Emphasis supplied.)

We have more recently reaffirmed this view using similar language in Travelers Insurance Co. v. Godsey, supra, 260 Md. at 676 and A. B. Veirs, Inc. v. Whalen, 256 Md. 162, 166-67, 259 A. 2d 516, 518-19 (1969).

‘Ex parte Carlin, 212 Md. 526, 532-33, [In re Carlin’s Estate,] 129 A. 2d 827, 831 (1957), dealing with an analogous factual situation, involved a case in which a son alleged an agreement between his father and himself for legal services to be rendered by the son on behalf of his father. In an incompetency proceeding the son petitioned for and was granted fees for the years 1951 through 1953. After his father’s death, the son made a claim against the estate for fees for the years 1937 through 1950. In denying this claim, the Court said:

‘It is well established that a single cause of action or an entire claim cannot be split up or divided and separate suits maintained for the various parts thereof. A judgment or decree in a suit for a part only of a single cause of action or entire claim permits res judicata to be successfully relied on if the remainder is sued on later.’

Of similar effect is Whitehurst v. Rogers, 38 Md. 503, 515 (1873) involving a suit for trademark infringement where the plaintiff had earlier brought suit alleging different violations of his right and lost:

‘It is not the same act that is passed upon always in a case of former recovery; but if the same question of right is involved in the second case, as was tried and determined in the first, whatever distance in time occurs between the acts, bringing the right in question, the former decision is equally effective.’ (Emphasis in original.)”

Is the breadth of applicability of the doctrine less extensive when the initial judgment has been entered by a federal court? We think not.

There can be no doubt that the District Court’s jurisdiction extended to resolution of the subject controversy if it had been asserted in the litigation pending therein. In Mine Workers v. Gibbs, 383 U. S. 715, 725, 86 S. Ct. 1130, 1138, 16 L.Ed.2d 218, 228 (1966), it was said:

“[I]f, considered without regard to their federal or state character, a plaintiffs claims are such that he would ordinarily be expected to try them all in one judicial proceeding, then, assuming substantiality of the federal issues, there is power in federal courts to hear the whole.”

In sustaining a motion for summary judgment grounded on res judicata under somewhat similar circumstances, it was said in Ford Motor Co. v. Superior Court, 35 C.A.3d 676, 679 (1973):

“A plaintiff may not split a single cause of action and try it piecemeal.-To do so violates the public policy against permitting litigants to consume court time litigating matters that could and should have been settled in a prior action.... When a party brings an action in federal court in which jurisdiction is based on a substantial federal issue . .. the federal court has pendent jurisdiction of the nonfederal issue and may dispose of it while disposing of the federal matter.”

Privity

The declaration of appellants itself alleges “Control Leasing is the assignee and successor in interest to the lease agreement between Lease-A-Gar and Bentley Plummer.” This relationship creates a condition of privity that operates to bar Control as well as Lease-A-Car. In the absence of fraud by Lease-A-Oar against Control, the fact that the relationship was created before rather than after the federal litigation is immaterial. Rubin v. Leosatis, 165 Md. 36, 41-42, 166 A. 428, 429-30 (1933).

We perceive no error.

Judgment affirmed.

Costs to be paid by appellants.

      . Two other parties plaintiff in that action are without import here.

      . Jurisdiction on diversity grounds is not disputed.

      . Professor Ronan E. Degnan in his comprehensive article Federalized Res Judicata, 85 Yale L.J. 741 (1976), early on noted that:
      “The recognition of judgments when a federal court is involved — the effect of state judgments on proceedings in federal courts and the effect of federal judgments m state courts and other federal courts — is not governed explicitly by the terms of Article IV, (of the United States Constitution] but is no less important. Still, it is a problem that has received far less attention and is not yet thoroughly worked out.” 85 Yale L.J. 741.
      Professor Degnan ends his article with a conclusion that the rule of law respecting Federalized Res Judicata will read something like this:
      “A valid judgment rendered in any judicial system within the United States must be recognized by all other judicial systems within the United States, and the claims and issues precluded by that judgment, and the parties bound thereby, are determined by the law of the system which rendered the judgment.” 85 Yale L.J. 773.


text:
    ROGER HOWARD et al. v. JAMES L. GISH
    [No. 1017,
    September Term, 1976.]

      Decided June 13, 1977.

    The cause was argued before Gilbert, C. J., and Morton and Menchine, JJ.

      Robert Paul Phillips, III and J. Russell Robinson for appellants.

      R. Noel Spence, with whom were William C. Wantz and Kaylor & Spence on the brief, for appellee.
   Menchine, J.,

delivered the opinion of the Court.

Roger Howard (natural father) and Inez C. Todd (maternal grandmother) appeal to this Court from a decree of the Circuit Court for Washington County, whereby custody of Lori Lynn Howard, age 10 years, was awarded to her stepfather, James L. Gish. The mother of the child had died on May 21, 1976, from injuries sustained when she fell from a horse.

The litigation developed under the following circumstances:

The body of Marcia Todd Gish had been taken to Darien, Georgia for burial. James L. Gish and Lori Lynn went to Georgia on Thursday. The funeral was scheduled for Saturday.

Between Thursday and Saturday, however, discussions took place among the father, grandmother and stepfather with respect to the future custody of the child. As a result, the stepfather and the child left Georgia without notice on Friday at about 10 p.m., prior to the funeral of the mother.

He explained that he had done so, “Because I had every indication and every belief that they was trying to take Lori from me then, they wasn’t going to let me bring her back home. And, I had discussed it with Lori and she said to leave.” He added that he had left Georgia in such precipitant fashion upon the advice of Georgia counsel.

His petition for custody was filed shortly after his return to Maryland.

The joint answer of the father and grandmother alleged, inter alia:

.. that petitioner has never been able or willing to support himself or anyone else by steady gainful employment, but has, on the contrary, subsisted largely upon the efforts of others. He is not of proper character to maintain the stability in home life that is requisite in the rearing of a young child; he is no relation to said child and has no standing to demand custody of said child.... that they are next and nearest of kin to the minor child, Lori Lynn Howard; that they deeply love said child; that they are jointly and severally physically, financially, and morally capable of rearing and caring for said child; that they jointly and severally desire and are entitled to custody of said child and that the best interests of said child require that custody of said child be awarded to them or to one of them.”

The joint brief of the father and maternal grandmother makes the following contentions on appeal:

“I. The Circuit Court for Washington County erred by not dismissing the petition for want of jurisdiction over the subject matter of the litigation in that the legal status of Lori Lynn Howard was dependent upon her domicile and under established . . . [law] domicile is Georgia and not Maryland.
II. The Court erred in not adhering to the ‘continuing jurisdictional rule’ under which the court of the state which originally awarded custody retains jurisdiction to redetermine the best interests of the child upon the death of the spouse to whom it had originally awarded custody.
III. The Court erred in awarding custody of the child to appellee because, the evidence did not support a finding of unfitness as to appellants.”

I and II

We believe that passage in Maryland of the Uniform Child Custody Jurisdiction Act by Chapter 265 of the Laws of Maryland, 1975, and now codified as Article 16, §§ 184-207, inclusive, (1976 Cumulative Supplement) requires us to discuss contentions I and II together.

The Undisputed Jurisdictional Facts

Lori Lynn Howard was born to the marriage of Roger Howard and Marcia Todd Howard (now deceased) on May 30, 1966, in the State of Georgia. Both parents were natives of that State and were married there in 1962.

After their marriage the Howards lived within voice range of the maternal grandmother’s home in Darien, Georgia, from the time of their marriage until their separation in June 1970. The maternal grandmother cared for Lori Lynn during the day because both parents were employed during that period of her life.

The Howards were divorced in Georgia on June 5, 1970, with custody of Lori Lynn awarded by the Georgia court to the mother, Marcia Todd Howard. Mother and daughter lived with the maternal grandmother from June 1970 until three months after Marcia’s marriage to James L. Gish on September 15,1972.

Shortly thereafter the Gishes and Lori Lynn moved to Woodbridge, Virginia, where they resided until June 1975, when they moved to Hagerstown, Maryland. They moved from Hagerstown into rural Washington County, Maryland, in November 1975'and continued to reside there until the tragic death of the mother. The stepfather and Lori Lynn remained there as residents after the mother’s death and were in residence there at the time of trial in the lower court.

The Law as to Jurisdiction

By Chapter 265 of the Laws of Maryland, 1975, now codified as Article 16, §§ 184-207, inclusive, Maryland adopted the Uniform Child Custody Jurisdiction Act (the Act).

This case appears to be the first appellate examination of the jurisdictional aspects of the Act. We shall accordingly set forth in full herein the three sections of that Act that relate: (a) to the purposes intended to be served by the legislation (§ 184); (b) to the definitions of words and phrases used in the legislation (§ 185); and (c) to the jurisdictional requisites in child custody cases (§ 186). We believe that those three sections make plain that the State of Maryland has jurisdiction and that the cases indicating Maryland’s adherence to the “continuing jurisdictional rule” are, to the extent of any inconsistency with the statute, no longer controlling authorities.

“§ 184. Purpose and construction of subtitle.
(а) The general purposes of this subtitle are to:
(1) Avoid jurisdictional competition and conflict with courts of other states in matters of child custody which have in the past resulted in the shifting of children from state to state with harmful effects on their well-being;
(2) Promote cooperation with the courts of other states to the end that a custody decree is rendered in that state which can best decide the case in the interest of the child;
(3) Assure that litigation concerning the custody of a child takes place ordinarily in the state with which the child and his family have the closest connection and where significant evidence concerning his care, protection, training, and personal relationships is most readily available, and that courts of this State decline the exercise of jurisdiction when the child and his family have a closer connection with another state;
(4) Discourage continuing controversies over child custody in the interest of greater stability of home environment and of secure family relationships for the child;
(5) Deter abductions and other unilateral removals of children undertaken to obtain custody awards;
(б) Avoid relitigation of custody decisions of other states in this State insofar as feasible;
(7)Facilitate the enforcement of custody decrees of other states;
(8) Promote and expand the exchange of information and other forms of mutual assistance between the courts of this State and those of other states concerned with the same child; and
(9) Make uniform the law of those states which enact it.
(b) This subtitle shall be construed to promote the general purposes stated in this section.
“§ 185. Definitions.
In this subtitle the following words have the meanings indicated:
(1) ‘Contestant ’ means a person, including a parent, who claims a right to custody or visitation rights with respect to a child.
(2) ‘Custody determination ’ means a court decision and court orders and instructions providing for the custody of a child, including visitation rights; it does not include a decision relating to child support or any other monetary obligation of any person.
(8) ‘Custody proceeding’ includes proceedings in which a custody determination is one of several issues, such as an action for divorce or separation, and includes child neglect and dependency proceedings.
(4) ‘Decree ’ or ‘custody decree ’ means a custody determination contained in a judicial decree or order made in a custody proceeding, and includes an initial decree and a modification decree.
(5) ‘Home state’ means the state in which the child immediately preceding the time involved lived with his parents, a parent, or a person acting as parent, for at least 6 consecutive months, and in the case of a child less than 6 months old the state in which the child lived from birth with any of the persons mentioned. Periods of temporary absence of any of the named persons are counted as part of the 6-month or other period.
(6) ‘Initial decree ’ means the first custody decree concerning a particular child.
(7) ‘Modification decree ’ means a custody decree which modifies or replaces a prior decree, whether made by the court which rendered the prior decree or by another court.
(8) ‘Physical custody ’ means actual possession and control of a child.
(9) ‘Person acting as parent ’ means a person, other than a parent, who has physical custody of a child and who has either been awarded custody by a court or claims a right to custody.
(10) ‘State' means any state, territory, or possession of the United States, the Commonwealth of Puerto Rico, and the District of Columbia. (1975, ch. 265, § 2.)
“§ 186. When court has jurisdiction.
(a) A court of this State which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:
(1) This State (i) is the home state of the child at the time of commencement of the proceedings, or (ii)had been the child’s home state within 6 months before commencement of the proceedings and the child is absent from this State because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this State; or
(2) It is in the best interest of the child that a court of this State assume jurisdiction because (i) the child and his parents, or the child and at least one contestant, have a significant connection with this State, and (ii) there is available in this State substantial evidence concerning the child’s present or future care, protection, training, and personal relationships; or
(3) The child is physically present In this State and (i) the child has been abandoned or (ii) it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent; or
(4) (i) It appears that no other state would have jurisdiction under prerequisites substantially in accordance with paragraphs (1), (2), or (3), or another state has declined to exercise jurisdiction on the ground that this State is the more appropriate forum to determine the custody of the child, and (ii) it is in the best interest of the child that this court assume jurisdiction.
(b) Except under paragraphs (3) and (4) of subsection (a), physical presence in this State of the child, or of the child and one of the contestants, is not alone sufficient to confer jurisdiction on a court of this State to make a child custody determination.
(c) Physical presence of the child, while desirable, is not a prerequisite for jurisdiction to determine his custody.”

Briefly stated, the appellants maintain: (1) that the domicile of the father (Georgia) devolved upon the child by operation of law upon the mother’s death and (2) that the decree of the Georgia court awarding custody to the mother was continuing in nature.

From these premises they argue (a) that Georgia, as the domiciliary State of the child, has exclusive jurisdiction with respect to custody and (b) that Georgia should be recognized as having exclusive jurisdiction under the “continuing jurisdiction rule” that Maryland has followed.

As to contention (a), appellants cite Ross v. Pick, 199 Md. 341, 86 A. 2d 463 (1952) and Schwartz v. Schwartz, 26 Md. App. 427, 338 A. 2d 386 (1975), cert. denied, 276 Md. 749 (1975), U. S. cert. denied, 423 U. S. 1088 (1976).

As to contention (b), appellants cite Berlin v. Berlin, 239 Md. 52, 210 A. 2d 380 (1965) and Seidlitz v. Seidlitz, 23 Md. App. 327, 327 A. 2d 779 (1974).

Assuming, without deciding, that in the absence of statute either or both contentions might have validity, we are persuaded that the Circuit Court for Washington County clearly had jurisdiction over custody of the child by reason of the uniform act.

It is quite clear that Maryland was the “Home State” as defined in § 185, supra; and that the proceedings below sought a “modification decree” as therein defined.

In view of the undisputed fact that Maryland was the home state of the child at the time of the commencement of the proceedings below and had been such for not less than eleven months prior to the death of the mother, we think the jurisdictional dispute must be resolved against the appellants by reason of § 186 of the Act, supra. The Circuit Court for Washington County had jurisdiction.

Ill

The Award of Custody

In a written opinion, to which was appended the decree awarding custody of the child to James L. Gish, her stepfather, the chancellor dealt almost summarily with the claims to custody made by the father and by the maternal grandmother, being content to say only the following:

“It appears that Mr. Howard, although under an order to pay $50.00 per month for Lori Ann’s [sic] support, has failed to do so, and even failed to communicate. He seems to have his hands full living in a mobile home with a new wife and three stepchildren. The real contest in this case is between the grandmother and the step-father.
“Mrs. Todd is a loving grandmother who owns her own home. She rents out part and has a job as a waitress at a sea-food restaurant. In marital and other difficulties Mrs. Gish and Lori Ann [sic] stayed with Mrs. Todd, but not in the past several years.”

The chancellor’s brusque rejection of the father, by implication finding him unfit to have the custody of his child, seems based upon the father’s failure to support the child. The father had explained the failure was due to a lack of knowledge of the place of residence of the Gishes. We assume this explanation was rejected by the chancellor.

The chancellor’s comment that the father “seems to have his hands full living in a mobile home” did not discuss the uncontradicted testimony of the father (a) that he is regularly employed by the Brunswick Pulp and Paper Company; (b) that his gross earnings in 1975 were $14,454.18; and (c) that he had bought a new four bedroom brick and stucco ranch home into which he planned to move upon his return to Georgia following the trial below.

The chancellor’s expressed basis for the award of custody to the stepfather was even more terse, being limited to the following:

“The Court considers the best interests of the child; here the Court finds that her best interests will be served by awarding her custody to her stepfather, the plaintiff, who has shown his concern for her in a number of ways.”

We are mindful that the right of a parent to the custody of his child will “not be enforced inexorably, contrary to the best interest of the child,” Ross v. Hoffman, 280 Md. 172, 372 A. 2d 582 (1977) but “may be forfeited where it appears that any parent is unfit to have custody of a child, or where some exceptional circumstances render such custody detrimental to the best interest of the child.” Ross v. Pick, 199 Md. 341, 351, 86 A. 2d 463, 468 (1952).

We are mindful also that our review of factual findings of the chancellor are governed by the “clearly erroneous” standard fixed by Maryland Rule 1086 and that “an appellate court cannot set aside factual findings unless they are clearly erroneous.” Davis v. Davis, 280 Md. 119, 372 A. 2d 231, 233 (1977). The Court in Davis, supra, however, distinguished “factual findings” of the chancellor from the. latter’s ultimate conclusion as to custody, saying at 124-25 [233-34]:

“. . . there is some confusion in our cases with respect to the standard of review applicable to the chancellor’s ultimate conclusion as to which party should be awarded custody. Notwithstanding some language in our opinions that this conclusion cannot be set aside unless clearly erroneous, see, e.g., Spencer v. Spencer, 258 Md. 281, 284, 265 A. 2d 755, 756 (1970) (per curiam); Goldschmiedt v. Goldschmiedt, 258 Md. 22, 26, 265 A. 2d 264, 266 (1970), we believe that because such a conclusion technically is not a matter of fact, the clearly erroneous standard has no applicability. However, we also repudiate the suggestion contained in some of our predecessors’ opinions, see, e.g., Melton v. Connolly, 219 Md. 184, 188, 148 A. 2d 387, 389 (1959); Butler v. Perry, 210 Md. 332, 339-40, 123 A. 2d 453, 456 (1956); Burns v. Bines, 189 Md. 157, 164, 55 A. 2d 487, 490 (1947); cf. Ex Parte Frantum, 214 Md. 100, 105, 133 A. 2d 408, 411, cert. denied, 355 U. S. 882, 78 S. Ct. 149, 2 L.Ed.2d 112 (1957) (adoption case), and relied upon by the Court of Special Appeals in Sullivan v. Auslaender, 12 Md. App. 1, 3-5, 276 A. 2d 698, 700-01 (1971), and its progeny, see, e.g., Sartoph v. Sartoph, 31 Md. App. 58, 64 & n. 1, 354 A. 2d 467, 471 (1976); Vernon v. Vernon, 30 Md. App. 564, 566, 354 A. 2d 222, 224 (1976), that appellate courts must exercise their ‘own sound judgment’ in determining whether the conclusion of the chancellor was the best one. Quite to the contrary, it is within the sound discretion of the chancellor to award custody according to the exigencies of each case, Miller v. Miller, 191 Md. 396, 407, 62 A. 2d 293, 298 (1948), and as our decisions indicate, a reviewing court may interfere with such a determination only on' a clear showing of abuse of that discretion.”

The Record Below

The chancellor’s opinion had declared that he found “that her best interests will be served by awarding her custody to her stepfather, the plaintiff, who has shown his concern for her in a number of ways.”

We find appellate evaluation of that conclusion impossible because the record below produces more questions than answers respecting the fitness of Gish to have custody of this ten year old child. The testimony of Gish alone developed the following facts:

James L. Gish, a native of Hagerstown, Maryland, was married to the deceased mother, Marcia Todd Gish, on September 15, 1972, in Darien, Georgia. He had previously been married three times. The first marriage lasted six months with no children born of the marriage. The second marriage lasted between two and three years with two children, a boy and a girl, born as a result of that marriage. A third marriage lasted three months. No children were bom of the third marriage. All three marriages ended in divorces obtained by the wives. Gish explained “it was just a mutual agreement on both parties that we wanted it terminated.”

The children of Mr. Gish by his second marriage were four and five years old at the time of the hearing below. Asked whether he had always paid child support on a regular basis, Gish responded “I’ve always paid child support, but not a regular basis, no. It was easier for me to pay it in lump sums than it was weekly.” Contradicting that testimony was a subsequent acknowledgment that he had been confined upon charges of non-support “when Marcie and I was ready to go off on our honeymoon.”

More disturbing is his acknowledgment that he had not seen his own children for three years, although he explained that “its not because 1 don’t want to.” He acknowledged that there had been unsuccessful court proceedings in an effort to see his children that culminated in “a stipulation by the court that I cannot see those kids.” He said there was a “court order that prevents [me] from seeing [my] natural children.” No explanation appears in the record for the entry of such a stipulation or for the passage of such an order.

Other testimony by a deputy sheriff of Macintosh County, Georgia, where Gish at one time had conducted a service station, was to the effect that the latter’s reputation in the community for honesty and integrity wasn’t good.

No investigation of any kind was made with respect to the circumstances noted herein. We think some doubt necessarily arises from their recitation as to Gish’s fitness to receive custody of the child as against the claims of her natural father and her maternal grandmother. That doubt cries out for resolution.

In such circumstances, we believe it appropriate to make no judgment at this time upon the ultimate issue but will remand the case without affirmance or reversal for a plenary hearing in which the chancellor in making his determination as to where the best interest of the child lies, should require such investigative report and recommendations and cause the production of such testimony and other evidence as may be necessary for a fair hearing. Jester v. Jester, 246 Md. 162, 228 A. 2d 829 (1967).

It may be that the chancellor may desire to utilize the authority conferred by § 201 of the Act to request the appropriate court in Georgia “to hold a hearing to adduce evidence, to order a party to produce or give evidence under other procedures of that state, or to have social studies made with respect to the custody of a child involved in proceedings pending in the court of this State; and to forward to the court of this State certified copies of the transcript of the record of the hearing, the evidence otherwise adduced, or any social studies prepared in compliance with the request. The cost of the services may be assessed against the parties, or, if necessary, ordered paid by the State.” Additionally, the chancellor should issue a request for court records and documents from Georgia under the authority of § 204 of the Act; should consider the requisites for modification of an out-of-state decree as required by § 196, and after the plenary hearing, give consideration to the question whether the Maryland court is an inconvenient forum within the meaning of § 189, or justifies declining jurisdiction in Maryland under § 190 of the Act.

Remanded for further .-proceedings consistent with this opinion.

Costs to be paid by the appellee.

      . See Berlin v. Berlin, 239 Md. 52, 57, et seq., 210 A. 2d 380, 382, et seq. (1956).

      . The child’s father having remarried, the household would include his wife and her three children, aged 11,14 and IS years.

      . The record fails to reflect any light upon the question whether the mother having custody of those two children would find it easier to receive her monies in such a feast or famine manner.