Weymers v. Weymers ( 1923 )

Submitted April 16, 1923. The interest which the Commonwealth has in the marriage relation and its continuance is sufficient warrant for a judge, before whom a proceeding in divorce is pending, to bring upon the record any facts within his knowledge bearing upon the lack of legal justification for such divorce. The libellant and respondent are not the only parties concerned. The State is likewise an interested party, (19 C.J. 19; 9 R.C.L. 253), and has a right to have all the relevant facts involved in the case placed in the record, whether offered in evidence by the parties or not. But such matters, introduced for the benefit of the Commonwealth, must be brought into the record in such a manner as to cause no injustice to the parties, libellant and respondent.

The learned president judge of the court below in reviewing the master's report, recommending that a divorce be granted the libellant on the ground of willful and malicious desertion, discovered that no evidence had been produced before the master of certain proceedings which the respondent had instituted against the libellant in the court of quarter sessions of the same county, for desertion and nonsupport. In those proceedings an order had been made against the libellant, on December 8, 1920, for the payment of $30 per month to his wife, and an attachment had issued thereon against him on May 6, 1921, for failure to comply with said order. Having knowledge of said proceedings in the quarter sessions, and the order of the court therein, it was eminently proper for the judge to hold that they should have been introduced into evidence before the master, and considered by him, (Fisher v. Fisher, 95 Md. 320, 52 A. 898) 7 and to order them to be made a part of the evidence in the case. But this could only be done by referring the case back to the master and directing him to reopen the proceedings and introduce in evidence the record in the quarter sessions before referred to. And the libellant was entitled to notice of such reopening and opportunity to rebut the force and effect of the order in the quarter sessions. Such a record is admissible in evidence in subsequent proceedings for a divorce by the husband against the wife on the ground of her desertion, but it is not conclusive as a bar against him: Bauder's App., 115 Pa. 480; Hahn v. Bealor, 132 Pa. 242; Carey v. Carey, 25 Pa. Super. 223; Schreckengost's Est., 77 Pa. Super. 235,240.

The court had no authority to pass upon the record in the quarter sessions as part of the evidence in the case and refuse the divorce because of it, without referring the matter back to the master with instructions to receive such record in evidence, and consider the same, and without permitting the libellant to offer evidence tending to rebut or weaken its force and effect: Matthews v. Matthews, 112 Md. 582,77 A. 249.

The second and third assignments of error are sustained. The decree is reversed and the record is remitted to the court below for further proceedings in accordance with this opinion.