# Petition — Coughenour v. Mills

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1980
- **Citation:** 444 U.S. 1079

## Text

IN THE Le: :
Cm RORA 1 oe OF) ERW

Supreme Court of the United States”

October Term 1979

No. @eeeoeoeoeee28eee? #

CLYDE I. COUGHENOUR
Petitioner

Ve

WANDA F. MILLS
Respondent

On Petition for Writ of Certiorari from
the Court of Special Appeals,
State of Maryland

Clyde I. Coughenour
16607 Sutton Place
Woodbridge, Virginia

William E. Brooke 22191

Attorney for Respondent
14749 Main Street

Upper Marlboro, Maryland
20870

pro se

TABLE OF CONTENTS

Page
Opinion below ..eeeeecreeeeeeecccs 1
Jurisdiction Cie tha hn eee © rere 2
Constitutional and Statutory
Provisions Involved ...-.ee-- 5
Questions Presented ...-ceeeecceees 4
Statement eeeeveev4aeeee2ee2802802808 eeee2ee#e#e#e# 6
How the Federal Questions Were
Raised and Decided Below ..... ‘ 8

The Federal Questions Are
Substantial eeeeeeeeeeee 10

ConcluSion ccccccccccccceces ive ote 22

TABLE OF CASES
SUPREME COURT

Frontiero v. Richardson, 411 ee gg Aer
(1973

Reed v. Reed, 404 U.S. 71 (1971) «.---- 3,9

Stanley v. Illinois, 405 U.S. 645 (1972) 3

Stanton v. Stanton, 421 U.S. 7 (1975) .. 3

Weinberger v. Weisenfeld, 420 U.S. 636 3
(1975)

OTHER CASES
Baker v. Otto, 180 Md. 53 (1941) ...-.- 12
Davis v. Davis, 280 Md. 119 (1977),

cert. denied, 434 U.S. 939 (1978) 20

Hild v. Hild, 221 Md. 349 (1960) ..---- 19

TABLE OF CASES, Cont.
OTHER CASES ! Page
Klupt v. Bar Ass'n, 197 Md. 659 (1951) .. 12
Loceetti v. Loccetti, 245 Md. 97 (1967) .. 13
McAndrews v. McAndrews, 39 Md.App.1
| ; CORTES ienasas > te

McGrath v. McGrath, 213 Md. 442 (1957) .. 12
Montgomery Cty. Dept. Soc. Ser. v. !

Sanders, 38 Md.App. 406 (1978) .. 20
Northern Cent. Ry,Co. v. Rutledge, 48 Md.

262 (1878) Meh eeareeaneesees uN
Silver Spring: Title Co. v. Chadwick, Be

213 Md. 178 (1957) sccceceencese 12

TABLE OF CONSTITUTIONAL
AND STATUTORY PROVISIONS

CONSTITUTIONAL PROVISIONS

Amendment Fourteen, United States re
Constitution ......11,21

Article 46, Maryland State Constitution... 5,13

STATUTORY PROVISIONS
Article 16, Sec. 5A Maryland Code Annotated 6, 16

Article 72A, Sec. 1 Maryland Code dirt 6,13
15

Article 27 Secs. 435, 437, 439
Maryland Code Annotated 6,13

28 U.S. C. See VATA eevecticcsessves 3
Maryland Rules of Procedure
Rules 866 and 1066 2... ckccccccscwsiewccssve 6,20
Rule 1230, EC 7-24, EC 7-35, DR 1-102,

DR 7-102, DR 7-110 .....-..+-- 6,12
Rule 1231, Canons ill, V, XI XVI XXXill,

isles: A i TA ai idee catocccsns 8,71

TABLE OF REFERENCES

7B J. Moore, Federal Practice J,C.

1257 (2d ed. 1974) ~.ccccceeees 3
C.A. Wright, Law of Federal Courts

Sec. 107 at pp. 491-492

(2d-ed. 1970) cccccccccecces sk 3
APPENDIX
TABLE OF CONTENTS
A Page
Order of trial court ....cececeeeees ie ale aries 7m

Decision, Court of Special Appeals, Md. .. 2-10

Opinion of trial court ...-+eeeee- 4-6
Memorandum of trial court ....ceeeeeeeeee 11
Letter Court of Special Appeals .....-.--- 12
Order, Court of Appeals, Md. .--eeeeeeees 13
Order, Court of Appeals , Md. .-eeeeeeeeee 14
MARYLAND CASE LAW

Wishes of children ......--- eke erg, Be
Physical needs Gdidusreinnanes ae
Character of wife veebeeces a ieeeae ee
Religious strains ee eee eas

Voluntary impoverishment ...--+--+-+e+- 21
Maryland Constitution, Article 46 ......--- 15
Annotated Code of Maryland

Article 16, Sec 5A ..ccececeecceeess 15

Article 27 Secs. 435,437,439 .....- 15

Article 72A, Sec. 1 ..eeeeee einene 16

APPENDIX
TABLE OF CONTENTS, Cont.

Maryland Rules of Procedure
Rule 886 and 1086 .....--eeeees ae
Rule 1230 and cites from Code of
Professional Responsibility ....
Rule 1231 and cites from Canons of
Judicial Responsibility .......--
How federal questions raised ...---eeeees
Ex-parte CommMunicationS .---+sseeeeees
Pigkitisnmeds Mi oi oo

Maryland Article 72 A, Sec. 1, Parent and Child,
Natural guardianship.

The father and mother are the joint natural pare
ians of their minor child and are jointly an
severally charged with its support, care, nurture,
welfare and education. They shall have equal
powers and duties, and neither parent has any

right superior to the Mr of the other concernin

the child's va rey A f either the father or mother
dies, or dons his or her family, or is incapable
of acting, the guardianship devolves upon the other
perent. Where the parents live apart, the court may
awerd the guardianship of the child to either of

them. Provided: The provisions of this article
shall not be demed to affect the existing law
relative to the appointment of a third person aa

guardian of the person of the minor where the
parents are unsuitable, or the child's interests
would be adversely affected by remaining under
the natural guardianship of its parent or parents.

(found Vol. 6, p. 231)

A17
Maryland Rules of Procedure
Rules 886 and 1086
Review when action tried by lower court without jury

When an action has been tried by the lower court
without a jury, this court will review the case
upon both the law and the evidence, but the

judgment of the lower court will not be set aside

on the evidence unless clearly erroneous and due

regard will be given to the opportunity of the

lower court to judge the credibility of the witnesses.
(found in Vol. 9B, pp. 669, 769)

Rule 1230. Code of Frofessional Responsibility

The code of Professional Responsibility of the
American Bar Association, as set forth in Appendix

F of the Maryland Rules, is hereby adopted.
‘(found in Vol. 9C, p. 397)
Appendix F, Code of Professional Responsibility
Canon 1, A lawyer should assist in maintaining the
integrity and competence of the legal profession.
(found in Vol. 9C, p. 507)
Disciplinary Rules
DR 1-102 Misconduct
(A) A lawyer shall not:
(1) Violate a Disciplinary Rule.
(2) Circumvent a Disciplinary Rule through
actions of another.
(4) Engage in conduct involving dishonesty,
fraud, deceit, or misrepresentation.
(5) Engage in conduct that is prejudicial
to the administration of justice.
(found in Vol. 9C, p. 507)

DR 7-102 Representing a client within the bounds of

the law
(A) In hie representation of a client a lawyer shall
not:
(4) Knowingly use perjured testimony or false
evidence.
(5) Knowingly make a false statement of law
or fact.

(6) Participate in the creation or preservation
of evidence when he knows or it is obvious
that the evidence is false.
(7) Counsel or assist his client in conduct that
the lawyer knows to be illegal or fraudulent.
(found in Vol. 9C, p. 532)

A18
DR 7-110 Contact with officials. A19
(B) In an adversary proceeding, a lawyer shal| which he presides in circumstances which might

‘ have the effect or give the appearance of granting
not communicate, or cause another to undue advantage to one party, For example, a

lawyer should not communicate with a tribunal
by a writing unless a copy thereof is promptly
delivered to opposing counsel or to the adverse
party if he is not represented by a lawyer.
Ordinarily an oral communication by a lawyer
with a judge or hearing officer should be made
only upon adequate notice to opposing counsel, |
or, if there be none to the opposing party. A
lawyer should not condone or lend himself to
private importunities by another with a judge or
hearing officer on behalf of himself or his client.
(found in Vol. 9C, p. 531)

communicate, as to the merits of the cause
with a judge or an official before whom the
proceeding is pending, except;

(1) In the course of official proceedings in

_ _ the cause.

(2) In writing if he promptly delivers a copy
of the writings to opposing counsel or to
the adverse party if he is not represented
by a lawyer.

(3) Orally upon adiquate notice to opposing
counsel or to the adverse party if he is

not represented by a lawyer.

(4) As otherwise authorized by law.

(found in Vol. 9C, p.535)

Canon 7, A lawyer should represent a client zealously

within the bounds of the law

Ethical Considerations
EC 7-24 In order to bring about just and informed

decisions, evidentiary and procedural rules

have been established by tribunals to permit

the inclusions of relevant evidence and argument
and the exclusion of all other considerations. The
expressions by a lawyer of his personal opinion
as to the justness of a cause, as to the credibility

of a witness, as to the culpability of a civil litigant,

or as to the guilt or innocence of an accused is not
a proper subject for argument to the trier of fact.
it is improper as to factual matters because
admissable evidence possessed by a lawyer should
be presented only as sworn testimony. It is
improper as to all other matters because, were
the rule otherwise, the silence of a lawyer on 4
given occasion could be construed unfavorably to
his client. However, a lawyer may argue on his
analysis of the evidence for any position or
conclusion with respect to any of the foregoing
matters. (found in Vol. 9C, p. 530)

Rule 1231 Canons and Rules of Judicial Ethics
The Canons and Rules of Judicial Ethics, as
herein set forth, are adopted as Rules of this
Court governing the conduct of all judges
referred to in Rule 13 of the Rules of Judicial
Ethics. (found Vol. 9C, p. 398)

CANONS OF JUDICIAL ETHICS
lll. Constitutional Obligations

It is the duty of all judges in the United States
to support the federal Constitution and that of

the state whose laws they administer, in and
apply fundamental limitations and guarantees.

(found Vol. 9C, p. 398)
V. Essential Conduct,
A judge should be temperate attentive, patient,

impartial, and, since he is to administer the law,

and apply it to the facts, he should be studious
of the principles of the law and diligent in
endeavoring to ascertain the facts. (p. 399)

XI. Unprofessional Conductof Attorneys and Judges

A judge should take or initiate appropriate
disciplinary measures against a judge or lawyer

EC 7-35 All litigants and lawyers should have access ee ae) a an eee Fey

to tribunals on a equal basis. Generally, in
adversary proceedings a lawyer should not commun-
icate with a judge relative to a matter pending beforg
or which is to be brought before, a tribunal over

A20

XVI Ex Parte Communications

A judge should not permit private interviews,
arguments, or communications designed to
influence his judicial action, where interests to
beaffected thereby are not represented before him,
except in cases where provision is madeby law
for ex parte application.

While the conditions under which briefs of
argument are to be received are largely matters
of local rule or practice, he should not permit the

contents of a brief presented to him to be concealed
from opposing lawyers. Ordinarily all commun-

ications of lawyers to tne judge intended or
calculated to influence action should be made
known to opposing counsel.

A judge, however, may obtain the advice of a
disinterested expert on the law applicable to a
proceeding before him if he gives notice to the

parties of the person consulted and the substance
of the advice, and affords the parties reasonable

opportunity to respond. (p. 401)

XXXIl1 A Summary of Judicial Obligation

In every particular his conduct should be above
reproach. He should be conscientious, studious,

thorough, courteous, patient, punctual, just,
impartial, fearless of public clamor, regardiess

of pups praise, and indifferent to private
political or partisan influences; he should admin-
ister justice according to law, and deal with his

appointments as a public trust; ***. (p. 406)

RULES OF JUDICIAL ETHICS

4. An aggravated or persistent failure to comply
with the Canons of Judicial Ethics shall be deemed
a rule violation. (p. 407)

14. Violation cf.any of these rules is conduct
prejudicial to the proper administration of justice
within the meaning of Maryland Rule 1227 (Removal
or Retirement of Judges). (p. 410)

————

nie ae

A21

Maryland case law requires the wishes of children not
of tender years to be considered:
Wilhelm v. Wilhelm, 214 Md. 80, 133 A.2d 423
(1957) ; Trenton v. Christ, 216 Md. 418, 140
A.2d 660 (1958); Franklin v. Franklin, 257 Md.
678, 264 A.2d 829 (1970) ; Sullivan v. Ausiaen-
der, 12 Md. App. 1, 276 A.2d 698 (1971); Ross

OoO>DdD

A32

J. Lorraine Coughenour, Petitioner's wife

(T 102-104, 117; E 67-69, 76)

Q Mrs. Coughenour, what is your education
history?

A | graduated from Heidelburg American High

School in Germany, spent one year at the

Sacred Heart University in Japan, and one

querter at Brigham Young University in Utah.

Q Who has been the primary support of your
child since she was born?

A Until my present marriage, | was the primary
support.

Q Are you involved in any school activities?

A | have joined the PTA this year, and | was
the room mother for the class this year.

Q Are you affiliated with any church?

A Yes. | am a member of the Church of Jesus
Christ of the Latter Day Saints.

Q Are you involved in any church activities?

A | teach the five year olds in Sunday School.

| teach the homemaking education class once a

month in relief society, and | am a visiting

teacher to four family members.

Q Mrs, Coughenour, are you living the stand-
ards set by the church?

A To the best of my knowledge.

Q Mrs. Coughenour, before your marriage to
your husband, did you have sexual
relations with him?

A No, | did not.

Q Are you ready, willing and able to provide

the necessary care and training for the

Coughenour children?

I'm certainly willing to try.

What makes you think you can or cannot do

it?

O >

A33

A Well, we have had them in our home now
for the past two and a half years and we have
developed, |'d say, a warm relationship on
the weekends we have spent together.

XQ Does Mr. Coughenour make derogatory
remarks to the children about their mother
and the stepfather in your presence?

A No.

David Campbell (T 86, E 54)

Q What has been the relationship between the
Coughenour children and the Coughenours?

A | would characterize it as that of children
with parents. There is no straining no
difficulty that | have observed.

Edmond Van Leuven (T 88,89; E 56,57)

IE a et nnn

How long have you known Lorraine Coughenour?

Approximately six years.

You visited her home frequently?

Yes. At least once a month.

Do you know if Lorraine is keeping the

church standerds or not?

To my knowledge she is.

Have you ever had the opportunity to

observe Mr. and Mrs. Coughenour with

the Coughenour children?

A Yes, | have.

Q What is the relationship that you have seen
between them?

A Very harmonious. There seems to be a great

deal of love and affection, mutual respect.

Q Have you ever seen any friction, confrontat-
ions, between any of them?

A Never.

OPFPOYPD

O >

A34

Wain Allen M.D. (T 99, E 64)

Q Have you had opportunity to observe the

Coughenours and Coughenour chi Idren together?

A | have.
Q And what kind of a relationship did you observe?

O>O >

QO >

A warm loving relationship.

How do the children get along together?

Well.

What was the relationship between the children
and Mrs. Coughenour?

Open and werm.

Do you know of anything either relating to

the Coughenour children or to Clyde and

Lorraine Coughenour that would cause problems
in an intimate relationship?

A

No.

Delbert Phillips (T 92,93; E 60,61)

Q

>

OPO

Have you had opportunity to observe the
Coughenours and the Coughenour children
together?

On several occasions. ... We spent oh three
or four days together at Rehobeth Beach in
the summer of 1976 ... .

Have you ever been in the Coughenour home?
Yes.

What did you find the relationship to be
between mrs. and mr. Coughenour?

Very good. There were no problems just
from what | could see.

What was the relationship between the
Coughenours and the Coughenour children?
They seemed to be one big happy family.

No frictions that could be detected.

2 Ey 7

A35

William Wolfe , Respondents witness (T 198-

201, © 120-123)

XQ Have you had an opportunity to have seen
and observed the Coughenour children with
Mr. Coughenour?

A Yes.

Q What did you observe?

A That he performed all his fatherly duties and

got them to church on time and generally was

@ good father.

Q What kind of relationship did there exist
between Mr. Coughenour and his children?

A Love and affection.

Q Did the children show any fear for Mr. Cough-
enour?

A Not that | could observe.

Mr. Wolfe signed a statement that he knows

both parties and it would be in the best interest

of the children to have them in the home of Mr.

Clyde Coughenour (T 200,201; E 122, 123)

THE WITNESS: "Statement of Mr. William
Wolfe, ... | have known Wanda Mills, formerly
Wanda Coughenour, for several years and have
had numerous occasions to be in her home
primerily as a family home teacher. | have
also known Mr. Clyde Coughenour for several
years and have had occasions to see him with
the four Coughenour children. From the knowledge
| have it would be in the best interests of the
children to have them in the home and custody
of Mr. Clyde Coughen our.

| have read and understand the above
statement and to the best of my belief, itis true
and accurate."

And it is signed by me on June 20, 1978.
Q Mr. Wolfe, is this statement accurate?

A36

A Yes.

Q Do you still feel the same now as you did
last week when you signed that statement?

A Yes.

RESPONDENT'S TROUBLED HOME

Both Petitioner's and Respondent's
witnesses testified of her troubled home.

Edna Durant (T 61-69, E 33-40)

Q Do you know Wanda Mills?

A Yes

Q Have you had opportunity to be in the Mills
home?

A Yes

Q_ In what capacity have you been there?

A As avisiting teacher in the relief society

organization and as a relief society president.

Q Were there any physical needs of the

children?

A Yes

Q What type of needs did the children have?

A Generally speaking, there was need for

food. When | was there.

A | made suggestions to her that | thought
might help economically for the money to go
further ... and that | thought would be
nutritious meals

Q In general, then, since you do not want to
go into specifics, what did you find as to the
overall marital stability in the home?

A It was unstable.

Q Are you aware of any fighting in the home?
A Yes

Q Are you aware of periods of separation?

a wore

A37

A Yes

Q Did she say what they were fighting about ?
A Many things.

XQ Okay. Other than that, are you testifying
then that you know of another separation that
they had, based on what she told you?

A Brief ones, yes.

Q Such as whet.

A He went away for periods of time, then would
come back and then would leave again and come
back.

Bishop Lowman (T 39, 40, 45, 47, 48: E 19,

20, 23, 24, 25)

Q As bishop, would you teil us briefly what
ere your responsibilities to the members of
your unit?

A | am responsible for both their spiritual
and physical, their termporal needs.

Q Are Mrs. Mills and the Coughenour
children members of your unit?

A yes they are.

Q Bishop, have you on several occasions had
conferences with Mrs. Mills?

A Yes, | have.

Q As aresult of these conferences were you
made aware of any problems in the home other
than the physical needs?

A Yes

Q Were the financial needs the result of lack
of money or the lack of management of money?
A That's a bit hard for me to determine, but
| think the answer is probably both.

Q Have there been periods of separation?

A Yes
Q Are there contentions in the home?

A ...Yes, there have been some contentions.

A38

William Wolfe, Respondent's withess

(T 197-198, E 119-120)

XQ Mr. Wolfe, you have been in the Mills home
quite often.

A Yes

Q Are you aware of any fighting in the Mills
home?

A | haven't been the home teacher for nine
months, and | am not sure of the situation
today.

Q But in the past there was fighting?

A Yes

Q Are you aware of any periods of separation
between Mr. and Mrs Mills?

A Yes

Q Are you aware of mismanagement of resour-
ces in the Mills home?

A Yes

RESPONDENT'S WITNESSES WERE IGNORANT
OF THE FACTS
Respondent's witnesses, with one exception,
William Wolfe, were ignorant of the conditions
in her home.

John Cook(T 166,167; E 101, 102)

Q You say you have only been in the home twice?
A Yes. | was trying to think today whether it was
three times, but | remember at least twice. That
is inside the house, that is.

Q And how many years is that?

A_ | guess since about November of '75. |

have been in the yard, in the area a lot where

the kids play.

Q Have you ever been in the home when Mr.
Mills was there?

A Well, on the carport is all.

Pe ee a ee, a eee ee

A39

Q Then you really know nothing at all about the
internal relationship between Mr. and Mrs. Mils?
A No

Carol Wood (T 193-195, E 175-117)

alta arch

Q Have you had a chance to observe her and
the children in the home?

A We would go and visit during the day and the
children would be at school. | did get to see her
with her little boy, but not with the older children.
Q Mrs. Wood, how many times did you say yoy
were in the Mills home?

A Oh, let me see. | would say at least 10.

Q And was Mr. Mills there at any time you
were there?

A No. Our visits were always made in the
daytime. To my knowledge, he was not there.
Q Do you know anything about the interactions
between Mr. and Mrs. Mills?

A No

Four brothers and sisters were called, Charles
and Katherine Knight, Don and Sylvia Wilson,
whose testimony was essentially the same
exemplified by that of Sylvia Wilson (T 210,
211; E 130, 131)

Q How many times have you been in the Mills
home in the last two years?

A \'d say roughly maybe 20, 30 times. We go
over there quite a bit.

Q How many times was Mr. Mills there?

A Well, out of about 30 times, | would say
about 28 times.

Q Are you aware of any fighting, tensions in
the Mills home?

A No, not that | know of. They seem like a

happy family.

A40

Q Are you aware of any periods of separation
between the Mill ses?

A No. | think he was gone one night, but he
had to work night work or work over on his job.
Q Did! hear you say, was there plenty of food
and clothing for the kids ...?

A Oh, yes.

RESPONDENT'S PROBLEMS OUT OF COURT
Respondent blamed her problems on Petitioner

in court, but was different out of court, with

examples:

(1) Respondent, Wanda Millis, Withess

(T 259, E 152)

X Q Mrs. Mills, on one occasion did he not leave

because you refused to sign over the vehicle

to him?

A No

(T 231, 232; E 133, 134)

Q Have you had a difficult time financially?

A Yes

Q Have you and your husband worked out this--

A No. That is still a problem. This is one of

the main things that has caused us to separate.
Redirect Examination by Mr. Brooke of his

own witness, Mr. Wolfe (T 203, E 125),

A | think he asked me if | had knowledge of

fighting in the home. | said yes.

Q_ How did you acquire that knowledge?

A Through Mrs. Mills.

Q What did she tell you?

A She told me that she--that her husband had

been there and they had separated that he had

tried to take the car and trade it in for a truck

and so on and so forth.

pw

A41

(2) Petitioner, Clyde Coughenour ,as witness
(T 331, E 181)
| have never said anything deragatory about
either one of them. | have never mentioned Mr.
Mills drinking. | didn't even know he drank. |
Have never mentioned that he smoked, | didn't
even know he smoked, and | don't care.
(T 334, E 184)
| would reiterate that | have made absolutely
no statements or accusations that wouid cause
any contentions between Mr. and Mrs. Mills.
| wish them the best. | wish the best on
everybody. | have no desire to see any home
busted after having gone through it myself.
Cross Examination by Mr. Brooke of
witness Edna Durant (T 68, E 39),
XQ But you are saying she told you that she
and her husband were fighting; is that what
you are saying, that she told you that she
and her husband were fighting ?
THE COURT: For the record, she shook her
head "yes"
Q Did she say what they were fighting about?
A Many things.
Q Were they arguing because her husband was
upset at statements that the children would
bring back from visiting their father? Was that
a matter of contention, staternents about him
that their father toid them?
A No. | don't recall ever mentioning that.

(3) On the witness stand the extensive records
she had to keep were a source of her marital
problems, Wanda Mills, (T 232, E 134),

A My husband, | am afraid of him, and my
second husband knew this, and | was all! the

A42

the time working with records keeping records
of this and records of that because he was al|
the time wanting proof ... and my second hus-
band would get mad because | was all the time
fooling with records.

When information was requested on discovery,
she did not even have an income tax return.

"Motion for Discovery and Production of Documents'

filed February 28, 1978 (R 218, E 243),

3. An accounting of all monies she has ex-
pended on behalf of Clyde Jr., Lynda, Susie,
and James Coughenour since January 1, 1973
including receipts therefor.

4. A copy of her state and federal income
tax returns for 1974, 1975, 1976 and 1977 and
any gift tax forms filed by her.

Answer to Motion for Discovery ..., filed
Merch 13, 1978 (R 221, E 244),

3. That due to the Defendant's financial
position, she would be unable to afford the
accounting, investigation and attorneys fees
which would be involved, and the Petitioner
should be required to advance approxi matel y
$2,00 for this purpose as a condition requiring
her to proceed.

(4) Her sex problems in court were over the
education of the children in school,

Wanda Millis (T 231, E 133),

A On the sex, about what should be discussed.
My second husband is more liberal. The children
had a problem, a class on sex education, and
he'd gone down to Annapolis to try to sign the
papers trying to keep this from getting into
school. My husband feit this was good for the
children. He claims that parents should

a

A43

teach, they should have knowledge.

Out of court it was adultry (T 305-307;
E 170-172; E 198-201; Petitioner, Ap -
pellant's, Exhibit No. 8)

RESPONDENT IS A CHRONIC LIAR

While it would be difficult to count all the
instances Respondent lied to the court, about
@ dozen examples were set forth in the brief to
the Court of Special Appeals of Maryland,
September Term, 1978, No. 854,pp. 10-13, a
few examples are:

(1) Interrogatory, filed November 18, 1977,
to Respondent (R 189, E 234),

8. List all court actions initiated by you or
against you and all charges made by you or
against you with any court or police or other
official since January 1, 1973, except those in
DR 73-362, including domestic, law, criminal,
equity and traffic actions, including place and
court or police, etc., filed with, date, docket
number or other designation, and disposition of
action.

Answer to the Interrogatory, filed Januery
20, 1978 (R 206, E 237),

*. | filed aj assault charge in 1975 while
working at the Godderd Space Agency, but | never
received a follow-up notice from the authorities
as to the disposition.

Respondent's testimony on the witness stand
(T 303-306, E 168-171),

Q Mrs. Mills, in your direct you made a list

of reasons that you and your husband were having
problems, and you stated that that was all. Are
you sure that there has never been any misloy-
alty between you and your husband?

A What do you mean by misloyalty?

A44

Q Has either one of you ever gone out with
another companion, been guilty of adultery?
A No.
Q Did you file an assault charge against
your husband then?
A Yes, when | thought he was going to --
Q You have omitted this from your inter-
rogatories. Was that deliberate or was
that an accident?
A No, that was an accident.
Q Is that the only charge you have ever
filed against your husband?
A Yes.
Q Mrs. Mills, | have here a true test
copy of a subpoena and a bill of complaint
filed in Anne Arundel County Circuit Court.
This subpoena is made out to a Darvin Ee.
Mills, 6506 Cahill Drive, Laurel, Maryland.
It was issued June the 30th 1977, it was
returned to the Court non est July the 7th,
1977.

Mrs. Mills, would you please read the
counts in this bill of complaint?

** *
A That the parties were married May 18,
1976 *** that although your complaintant
has always been a good, chaste and affec-
tionate wife towards the defendant hereinsaid
the defendant did nevertheless commit the
offense of adultery"

** *
Q Mrs. Mills, were you telling the truth
when you filed this bill of complaint or
when you answered interrogatories you
submitted to the Court?
A Well, according to that | wasn't telling

A45

the truth, according to this.
According to this, this should have been in

there, | guess, for from what | understand.

The Equity Subpoena from Anne Arundel
County was entered as Petitioner's Exhibit
No. 8, E 198-201.

(2) Questions and answers to Respondent
(R 252, E 148)

Q What were -- what were your daughter
Lynda's grades?

A Hers were As and Bs and C. She got a
C in French. But she has missed some
time. She -- they just got those today.
A Mrs. Mills, | have here a report card
that is out of date and it does not have
the final grades, but as of the previous
report period this shows Lynda with three
Ds and one incomplete.

A Yes, because she was trying to -- she
was going through a training program to go
to voc-tech. She was doing a lot of study-
ing to go to this college and she would
have been accepted with 22 other girls
and this was taking a lot of her time and
she did pass this. ***

(3) On interrogatories she was asked to
list all automobile accidents she was involved
in (filed November 11, 1977, R 188-191 E
233-235, No. 7). She listed one (filed
January 20, 1978, R 205-207, E 237-239,
Nos. 5 and 7). It was shown that she was
involved in at least 6 (T 262-269, E28,

E 153-160, Petitioners, Appellant's,Ex-
hibits Nos. 6 and 7, E 193-197).

A46

(4) Her financial statement filed was
completely erroneous (E 227, R 247, Ap-
pellee's Exhibit No. 8) from E 162-164,

T 290-292 as example:

Q Mrs. Mills, in your financial statement,
you said that you are spending $50 every
month on the children, and you have testi-
fied that the children are in excellent health
and | am very confused about this $50 a
month when you indicated that it is closer
to $50 a year.

A Well, like when Susie got hurt, you know,
with the head, she had to have a tetanus
shot, and Jimmy got hit with the car, and

| took him to the emergency room.

Q Mrs. Mills, when you take your children
to the emergency room, how do you pay for
it?

A They send me a bill later, and | pay it,
because you refuse to let the insurance
with the Blue Cross take care of it.

Q Then you are not receiving any assistance
at all from Blue Cross-Blue Shield?

A No. When Lynda went to get warts
taken off her hand, | do think finally your
insurance did cover that.

Q In the last year how many times have
you taken the children to the emergency
ward?

A Maybe four, five times.

Q Andhow much did you pay for all these
visits? Did you receive any assistance

at all?

A | wound up paying $68 and $35. | got
the receipts. Because they called me later

and said you wouldn't pay them, so! had

A47

to pay them.

Q Mrs. Mills, | have here receipts for
Blue Cross and Blue Shield. This Blue
Shield --

A That was for surgery. Some of that was
surgery.

Q It says that the charge was $10, and the
plan paid $10.

A Okay.

Q | have here charges of $7 and $21, they
paid $7 and $20.

A Okay. Now --

Q And | have one here where the charge
was $21 and the plan paid $20.

A That's right, because they had to x-ray
her hand before they cut the warts off.

Q Then | also have a receipt from January
31, which coincides with one of Susie's
here where Blue Cross paid $43.50, and also
have one here from Blue Cross on March
the 21st where they paid $57.51.

Now, Mrs. Mills, when you take children
to the emergency room practically all the
charges are compensated by Blue Cross
and Blue Shield are they not?

A No, not everything, because | have got
bills that | paid, too.

(5) Respondent claims Petitioner left her
destitute, removed the food and provided
no support (Respondent, Appellee, Brief
to Court of Special Appeals of Maryland,
September Term, 1978, No. 854, page 2)
when it was s!.own she took over $5,000
from joint accounts before he left, spent
over $15,000 the first year of separation

and that he made continuous payments

A48
(T 127,128,145; E 80,81,97)
(6) To counter the testimony of her being
well dressed while the children were in rags
she explained that the clothes she had
weren't really hers, but were from a job
she had. There was no such job listed on
her answer tc interrogatories.

Petitioner, Clyde Coughenour, witness
(E 92 T 143)

At this time the children's clothes were
becoming a little tattered. They were stil!
fairly well dressed, but they were becoming
tattered, and to this day | have never seen
Mrs. Mills in anything but first class
clothing.

There have been many occasions
when the children have visited that you
could punch a hole through the knees in
their church clothes. You could take the
four fingers together and put them through
holes in their shoes.

Petitioner as witness (T 332, E 182)

She (Respondent) also showed me a
stack of photographs where she was hoping
to become a model and she said that some
of the clothes were bought with this, but
she had an expensive wardrobe she had
never had before, to my knowledge.

Petitioner's wife, Lorraine Coughenour
(E 75, ¥ 226)

A Because Jimmy was wearing sneakers
with holes in them to church. He was
wearing a suit that did not fit him any longer.

Respondent, Wanda Mills, witness
(T227, E 288)

Q Now explain the circumstancesunder which
you had the clothes?

A49

A Well, | was a community shopper.

Q Proceed on what he did.

A When he saw the clothes, he just miscon--
he just whatever the word. Turned it all around
and made out that | was buying these clothes
with his support money, but that isn't the
procedure at all.

Interrogatories, filed November 18, 1977,
(R 189, E 234)

4. List all employment you have held since
January 1, 1973, ...

Answer to Interrogatories, filed January 20,
1978 (R 206, T 238),

4. Worked as cook in Connell's Reastaurant
for approximately 3 months in 1974- ...; worked
as Security Guard at Dennis Detective Agency
from June 1975 to September 1975 ...; for
approximately 3 months toward the end of 1975 |
worked as Security Guard at Goddard Space
Center... «

As examples of her logic:

(a) She could not have committed adultery
with the man she was associated with over an
extensive period of the summer of 1977 because
the day she was supposed to be committing
adultery with him she was having a breakfast
affair at church with the children. (T 234, E 136)

(b) Her husband could not have committed
adultery during the four months he was gone as
she charged, because when he went to the
Department of Motor Vehicles in Glen Burnie
to show them his unemployment card, he did
not have a woman with him. (T 312,313; E 173,
174)

ASO

COUNSEL FOR RESPONDENT WAS NOT
HONEST WITH THE COURTS

Respondent's attorney flooded the trial with
his lies and accusations with no evidence what-
soever to support them. A few examples are:

(1) Prince George's County Circuit Court,
June 23, 1978, DR 73-362, opening remarks,

MR. BROOKE: This has been a strain. When

my client came in, her little girl was just clinging

to her in fear because of statements that Mr.
Coughenour had made to his daughter, and he

is interfering with these children. He's making
statements that have these children very upset--
(T 19)

(2) Closing remarks, June 30, 1978,

MR. BROOKE: ... | think the problem now
is one that's been all along, simply can't cope
with him and the fact that he is able to go out
and get people to make statements. A lot of
people are just repeating what he told them.
That is not really evidence in my opinion.

(T 366)

(3) With pleadings for a trial, Respondent
filed contempt of court charges for $1,650
arrearage (R 124, 125; E 215, 216)

Petitioner, Clyde > tecduncineal witness
(T 128-130, E 81-83) .

In 1974 | was making regular child support
and alimony payments. We had a hearing
coming up for the final divorce and | was
sending my personal checks directly to her.

As the trial date approached , she informed me
that she was not receiving her checks.

Mr. Coughenour: There was no good reason
for her to refuse to expend these monies on the

A51

children as it was intended and the court
instructed her it should be.

THE COURT: Were the five checks
eventually cashed?

MR. COUGHENOUR: Not all of them, sir.
She came into court. She stated to the Court
that | was $1,650 behind in the one-year interim
between the a mensa and a vinculo trials. |
produced receipts, and | believe they are in the
file, to show that | could account for everything
but $365.

She then accepted the $365 check. After she
had received the check she started cashing these
checks. She did cash two of them.

Petitioners receipts for all but $365 are found
at R 132 +, E 217-219.

After the $365 was accepted as payment in
full she cashed two of the checks at a local
grocery store "Angels". Mrs. Chris Dembinsky ,
the cashier, was told by Respondent that she
had been holding onto the checks, then over
60 days old, for a long time and she was
requested to get the managers approval.
Respondent returned to Mrs Dembinsky and
reported the checks had been approved, they
had not. :

"The checks were cashed by Chris who was
told by Wanda that she had been holding onto
the checks for a long time for reasons and
Chris sent wanda to the back of the store for
Thomas' approval. Wanda returned to Chris
and told her that Thomas had approved them.
The checks were stale, being well over two
months old. They were not approved."

(E 202, 203, Petitioner, Appellant's Exhibit

/

A52

No. 9)

Mr. Brooke in his brief to the Court of
Special Appeals of Maryland, September Term
1978, No. 854, page 9 stated:

"The employee, Chris Dembinsky was called
to identify his signature on the statement which
in turn, was used as evidence of a statement
made by the appellee (petitioner's exhibit 9,
E 178). On cross-examination the witness
acknowledged that he did not make the statement"

This is completely contrary to the finding of
the court.

THE COURT: "All she said, her only
testimony was she doesn't have any
recollection of what happened. All she said
was she remembers signing the piece of
paper, and before she signed it, she read it,
and the things that she knew about in this
| etter were probably true when she signed it."
(T 328, E 297, Petitioner, Appellant's, Reply
Brief, page 1, to the Court of Special Appeals
of Maryland, September Term 1978, No. 854)

(4) In his Brief to the Court of Special
Appeals, page 11 of Appeliee's Brief,

"in reviewing the appellant's brief,
appellee submits that the argument about
appeilant's home being filled with love, as
observed by various witnesses who were
invited in on occasion where they would see
what he wanted them to see, cannot possibly
outweigh the history of the case as developed
through the evidence."

(5) The following are excerpts from
Petitioner's testimony and Respondent's
witness, William Wolfe.

A53

Clyde Coughenour, witness, (T 142, 143;
E 94, 95)

"Another thing that created problems in
the Mills home was the frequent absence of
Mr. Mills. During the summer of 1977, Mrs.
Mills had taken up companionship with a
man. | understand his name was Clyde, but
1'm not sure. He was an ex-military man. He
had been in the Army, the Navy and the Air
Force ... | was there and seen this man at the
house. He accompanied her to Rehobeth Beach
with the children. They were taking his
apartment.

THE COURT: How do you know this?

Mr. COUGHENOUR: | was informed this
by the children. One weekend when | took the
children, my youngest daughter, Susie, did
not accompany us because he was going to take
her horseback riding, and after that | believe --
| believe it was the July 4 weekend, because
they also went to the fireworks.

William Wolfe, Respondent's witness
(T 197, E 119)
XQ In the summer of 1977, were you in the
Mills home ?
A Yes
Q You were shown pictures taken at Rehobeth
Beach, were you not?
A Yes
Q The pictures were of Mrs. Mills, the Cough-
enour children and another man, were they not?
A Yes
Q Who was that other man?
A He was identified to me as someone in the
Navy; | never heard a name.

A54

In oral argument to the Court of Special
Appeals of Maryland, Mr. Brooke stated that
his witnesses testimony corroborating
Petitioner's of Respondent's relationship
with another man during her present marriage
in the summer of 1977, was a case of
mistaken identity and that the statement by
the three children, that they wanted to live
with Petitioner (R 310, E 258, ASS ) was
procured by Petitioner's promise of a
Slurppee.

THE COURT FOUND RESPONDENT ABLE TO
WORK

Excerpt from the court's oral opinion, Thursday,
August 1, 1974, Petitioner, Appellant's, Exhibit
No. 5 (T 137, 138; E 89, 90, 190, 191)

"The Court is not satisfied that this :ady can't
go to work. | think there are some things she can
do. | don't think she has worked that hard at it."

THE CHILDREN ARE BEING SUBJECTED TO
RELIGIOUS STRAINS

Respondent, Wanda Mills, witness (T 230,
2o%: © 132, 123)
A Yes, In the beginning we had a religious
problem and we went to conferences with the
bishop, but we resolved that.
Q Okay. So that was no longer a problem?
A No, sir.
Q And that is something brought about by the
fact of different religions?
A Yes.

Respondent about her present husband
(T 233,. & 135)

A55

A Well, Darvin got fed up with the children
coming in and harassing him about smoking.
They'd go into lung problems, these filters in
your lungs, you can't breathe good.

Bishop Lowman (T 40, 48, 49; E 20, 25,
26)
Q Are the Coughenour children trying to live
the standards of the church?
A Yes
Q In your years of experience, have you
found it to be a problem for children trying to
live the standards of the church or any church,
any high moral standards, have you found there
to be a problem in children trying to live
conforming to these standards where others
are not keeping the standards?
A Yes, it is difficult for a child to live any
standard that they like to live in which there
is a disagreement in the home.
Q Would the Coughenour children be an
exception to this?
A Maybe individually; not collectively.

Bishop Condie (T 31-34, E 11-14)
Q Bishop, what is the stand taken by the church
on fornication?
A Fornication is grounds for excommunication
and sometimes results in same.
Q_ If fornication is grounds for excommunication,
then adultery would be the same, being between
two married people; is that correct, sir?
A Yes, that's correct.
Q What about someone who chronically lies?
A Well, that likewise is contrary to the
standards of the church.
Q Cheating?
A The same.

A56

Q is it possible for an unwed woman in the
church to get pregnant and stil! be living the
standards of the church?

A No, that is not possible.

Q Bishop, in your many years of experience in
the church, have you ever noticed any difference
between the homes of where there were all .
members of the home were members of the
church, and those where there were not persons
members of the church?

A Yes, there is a difference. | think it is
quite obvious that when both parents are
members of the church, it is much easier to
teach the children in accordance with the
standards of the church. ... One parent

has one standard and the other parent another
and that presents some conflict with the
children

CERTIFIED STATEMENT OF THE CHILDREN

From notarized statement by the Coughenour
children, James age 10, Susie age 12, Lynda
age 14 (filed July 25, 1978; R 310; E 258):

1. That we informed Judge Mason in
private that we desired to live with our father,
Clyde | .Coughenour, or that we expected him
to be granted custody of us.

2. That in view of our request not having
been honored or he not having been granted
custody, we want it to be known publically that
we want to live with our father.

3.That we would prefer to all live together
with our father.

4. That if we cannot all live with our
father, then we want to live separately with him.

AS7

5S. That we feel we have:rights, if nothing
more than human rights, and that we are old
enough and intelligent enough to know and '
understand what we want to do and what is.
best for us.

6. That of our own free will and choice
we have requested our father to use every legal”
means. to enable us to live with him. |

7. That nothing here means we do not love
our mother, as we do.

8. That we are willing to. talk to the Judge _
again if our position is not understood.

RESPONDENT 'S HOME IMPROVEMENTS FOR
TRIAL
The improvements in the Mills home being
since the custody petition was filed in November
of 1977, was known to the court,

Opening remarks by Petitioner (T 10,11)

"In the last three months with this case pending
against them, respondent has been able to work
fairly closely with Mr. Mills, and we believe
they have been able to paint a picture that is not
as bad as it really is. We believe it is really
house dressing and that there is no chance or |
very little chance of them having a very happy,
stable home of the type the children deserve."

After the quoted statement of the Court of
Special Appeals fo Bishop Lowmans testimony
at AQ:

THE COURT: How long a period of time has
it been since you have seen this improvement?

THE WITNESS: | would say within the last
six months.

A5S8

PETITIONER WAS IN CONTEMPT WHEN HE
COULDN'T KEEP UP HIGH PAUMENTS AND
HAD TO TAKE A SECOND JOB

WiTNESS COUGHENOUR: It has been stated
that | stopped payments. There has never been a
two-week period since my separation that | did
not put my child support, alimony payment. |
did cut it back fromm $185 a week to $150 when |
ran out of money. This is what the contempt of
court case was about. | had to take an extra job
to finish paying that off.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1429%3A1. Public record. Not legal advice.