180 A. 708 | Pa. Super. Ct. | 1935
Argued March 15, 1935. The final decree in this divorce proceeding was granted the husband upon the ground that the wife's admitted withdrawal from their long-established home amounted to a "wilful and malicious desertion," within the meaning of "The Divorce Law" of May 2, 1929, P.L. 1237.
As required, in the absence of a jury trial, (Langeland v. Langeland,
The respondent defended upon two grounds: (1) That she had a "reasonable cause" for withdrawing, and (2) that, in any event, libellant encouraged and consented to the separation.
Under these contentions the evidence must be examined in the light of several well established principles of law.
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 *540
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,
It is not necessary to review in detail the unduly *541 voluminous testimony, (more than 300 printed pages) with its references to numerous quarrels during a long period of domestic unhappiness. The parties were married in 1902 and resided in Pittsburgh — except for about eighteen months in Washington, D.C. — until 1921; libellant then secured a good position, which he still holds, at Lester, Pa. Deeming this a permanent job, he bought a house in Norwood, Delaware County, as a home for himself and his family, the title being placed in the joint names of the parties. Three children, all of whom are now of age, were born of the marriage. Although the testimony indicates the marriage was never a particularly happy one, no serious difficulties seem to have existed prior to the removal to Norwood, but from that time on contentions arose and culminated on February 17, 1928, when respondent, without informing libellant of her intention, left the home and has since indicated no purpose to return. Libellant has continued to live at the family home; he testified it is still open for respondent to return and that the key which she possesses will admit her to the house.
Not disputing these facts, respondent averred that her separation from the libellant was due to his cruel and barbarous treatment and to the indignities he offered to her person, and argued that the testimony shows he consented to and acquiesced in her withdrawal.
So far as respondent's allegations of cruel and barbarous treatment and indignities are concerned, we entirely agree with the conclusions of the master — who made a most careful and detailed review of the testimony — and of the court below that her evidence does not rise to the standard required to make out a just cause for desertion; it is not such as would warrant a divorce in her favor. Much of the testimony along this line related to quarrels growing out of the strictness with which the libellant attempted to regulate the conduct *542
of the children while they were under age and living under the parental roof. While many of the regulations which libellant enforced — such as refusing to give them keys so that by arousing him to let them in he would know what time they came home, and forbidding the younger daughter to have protestant callers — were more strict than is now the custom in many homes, (and respondent's attitude toward such matters was quite liberal) the frequent disputes over this question certainly did not establish either cruel or barbarous treatment or such a settled course of hate or estrangement as is required for a divorce on the grounds of indignities to the person: Mathias v. Mathias,
Respondent further contends that she was forced to leave by reason of libellant's treatment of her immediately prior to the separation in reducing her weekly allowance for maintenance of the household to $10 a week, so that she did not have enough to eat, and by refusing to put coal in the house. In support of these allegations she points to a support order issued by the court of quarter sessions requiring libellant to pay her the sum of $15 a week. Such an order, while not conclusive, is, of course, some evidence of a prior desertion by the libellant, to overcome which countervailing proof is necessary: Kearns v. Kearns,
Respondent's argument that libellant consented and acquiesced in the separation is based upon testimony that on numerous occasions, during quarrels, she threatened to leave, to which libellant would reply, "There is the door, you can leave if you want to." Such words, spoken as they were, in the heat of argument and on occasions stretching over a period of years, are insufficient to warrant the conclusion that respondent's final departure was with her husband's consent. The whole course of her conduct prior to leaving, as recounted above, negatives any inference that libellant acquiesced in her actions. Respondent also argues that the fact libellant has made no overtures to her to return indicates that he consented to the separation. This is not enough. At best it merely indicates silent acquiescence, which, as we have seen, is insufficient. Such negative evidence does not meet the requirement of the law that there must be proof of some affirmative conduct, amounting to participation in the separation.
Decree affirmed.