O'Donnell v. O'Donnell

Henderson, J., delivered the opinion of the Court. This appeal is from an order of the Circuit Court for Queen Anne’s County, in equity, dismissing the cross-bill of a husband filed in a divorce proceeding instituted by the wife. The wife’s bill had charged adultery, which the husband denied, but was never pressed to trial. It was admitted that there were two minor children, the issue of the marriage, in the custody of the wife, and that jurisdiction over the children had been taken by the Circuit Court for Queen Anne’s County, sitting as a Juvenile Court.

The. cross-bill, filed several years later, charged desertion, but no answer was filed to it and after a decree pro confesso the matter was referred to an examiner and testimony taken. Neither the wife nor her attorneys of record was present at the hearing before the examiner, and no testimony was offered on behalf of the wife. When the matter was referred to the court for decree, the Chancellor stated, in a memorandum opinion, that the testimony would support a decree on the ground of desertion, but “because of certain testimony heard in one of two sets of cases, in which this member of the Court sitting as a Juvenile Court presided, to the effect that the husband was the father of another child by another married woman not his wife, this Court is of the opinion that it must decline to grant the relief prayed by the husband. As the Court recalls the testimony referred to, the husband, being present, did not then deny the paternity of said child, but whether ¹⁰⁷ or not the failure to deny was deliberate or because the husband was not given an opportunity to do so, the Court does not now remember.

But the Court is certain that the testimony came out as a result of the Juvenile Court’s investigation of the non-support of either the minor children of the parties to this proceeding, or the other minor children of the other woman who allegedly bore a child by Henry O’Donnell.” In the appeal to this Court there was no appearance on behalf of the wife and no brief filed. In the leading case of Fisher v. Fisher, 95 Md. 314 , 52 A. 898 , it was pointed out that because of the State’s interest in divorce proceedings arising out of its concern for the welfare of the children and public morality, a duty rests upon the court to refuse a decree to a party not entitled to it, although no defense is made. Cf. Rucker v. Rucker, 185 Md. 539, 542 , 45 A. 2d 282 , and