54 Pa. Super. 196 | Pa. Super. Ct. | 1913
Opinion by
The appellant filed his libel in the court below praying for a decree divorcing him from the respondent upon the ground of willful and malicious desertion. The court below, after deliberate consideration of the evidence, held that the libelant had not established his right to a decree of divorce and dismissed his libel; from which decree the libelant appeals.
The parties were married in 1894 and cohabited as husband and wife until January 19, 1910, when the appellee left the common home; taking with her their child, a girl five years of age. The parties on March 21, 1910, entered into a written agreement, which after reciting the marriage and that the wife had on January 19, 1910, left the habitation of her husband and that since said date divers differences and disputes had arisen which it was desired to amicably adjust, covenanted, “That in consideration of the mutual covenants each to the other moving, the acts, promises and rights relinquished, accepted, given and received by each of the said parties to the other, the said parties to this contract do covenant to and with each other that they will submit their divers differences to a board of arbitrators” (consisting of three persons named) “which said three arbitrators shall comprise and compose a board of arbitrators to determine all matters in dispute between the parties hereto relating to their married life and the claims of each party to the other and the property of each other.” Then followed a covenant by which the parties bound themselves, respectively, to accept the
We are not called upon to determine whether these parties were legally bound by the covenants of their contract and were concluded by the award of arbitrators made thereunder. The contract and the award are only material and important because they throw light upon the relation in which these parties stood to each other, after the contract was made, the circumstances under which the separation of husband and wife was continued, and whether this libelant consented to his wife subsequently living separately. The contract did not merely refer to the determination of the arbitrators the property rights of the parties, it expressly provided that the arbitrators should “determine all matters in dispute between the parties hereto relating to their married life and the claims of each party to the other and the property of each other.” It expressly covenanted “that all matters relating to the property of each other, all rights and duties, liabilities and claims of whatsoever kind now based upon the marriage relation subsisting between the parties hereto shall be submitted to the aforesaid board of arbitrators,” and that the arbitrators should determine “the custody of the said child and the term of said custody.” The contract did not in express terms covenant that the parties should live separate and apart, but it clearly indicates upon its face that the parties contemplated a continued separation, for if they were to live together there was no reason why the arbitrators should consider any question of “the right
The burden was upon the appellant, in order to entitle him to a divorce upon the ground of desertion, to establish that that desertion was not only willful and malicious in its inception, but that it continued willful and malicious, that is without his consent, during the entire period of two years. “What may have been desertion in its inception, but has become a separation with mutual consent within two years, is not ground for divorce. . . . Tjhe mutual consent that will prevent a divorce upon the ground of desertion may be inferred from the conduct of the parties, and need not be put in the form of a solemn written agreement:” Olson v. Olson, 27 Pa. Superior Ct. 128; King v. King, 36 Pa. Superior Ct. 33; Thompson v. Thompson, 50 Pa. Superior Ct. 159. When a separation is continued by mutual consent, as between the parties, it cannot be held to be a willful and malicious desertion, for the purpose of procuring a divorce. The learned judge of the court below disposed of this case in accordance with well-established principles.
The decree of the court below is affirmed.