38 A.2d 513 | Pa. Super. Ct. | 1944
Argued April 20, 1944. Respondent has appealed from the decree of the court below granting a divorce to libellant. In his libel, libellant charged respondent with wilful and malicious desertion. *252
The parties were married on May 26, 1935. They lived together in Clearfield, Pa., for four days. Respondent's home was in Clearfield. On or about May 30, 1935, libellant left respondent and returned to the home of his mother in Ambridge, Pa. The reason given for his departure was to obtain work. A child was born on August 10, 1935, but subsequently died on January 23, 1936. Libellant's mother, by letter of June 23, 1935, asked respondent to come and live with her, but on July 9, 1935, libellant wrote respondent a letter which contained the following: "Listen I don't know what my mother wrote to you and I don't care. . . . . . . Now listen Lerose [respondent] I'll leave here if you come out. I'm not in love with you and I don't like you, and if my [mother] does send you money to come out here and live we couldn't get along." At that time libellant was still living with his mother. Several similar letters followed from libellant to respondent. The parties have not lived together since May, 1935, and we do not believe that libellant at any time offered to provide a home for respondent or asked her to come and live with him. The evidence is clear as to his attitude and intentions. The desertion which entitles an injured and innocent spouse to a divorce is "an actual abandonment of matrimonial cohabitation, with an intent to desert, wilfully and maliciously persisted in, without cause, for two years. The guilty intent is manifested when, without cause or consent, either party withdraws from the residence of the other": Ingersoll v. Ingersoll,
The master recommended that a divorce be refused. Exceptions were filed by libellant to the master's report. They were sustained by the court below, and a final decree entered. Assuming that respondent had been guilty of adultery, that ground was not alleged in the libel. "The Divorce Law" of May 2, 1929, P.L. 1237, § 10, as amended,
In Bowman's Estate,
Decree of the court below is reversed, and the libel is dismissed, at the cost of libellant.