76 Pa. Super. 458 | Pa. Super. Ct. | 1921
Opinion by
Tbe libel in this action in divorce was filed May 20, 1918, alleging that as of December 20, 1916, tbe wilful and malicious desertion on tbe part of tbe wife and persisted in for tbe term of two years and upwards. After an application for a jury trial was presented and refused by tbe court, tbe bearing was bad before one of tbe judges. At tbe conclusion of this bearing, respondent presented two questions for findings as to conclusions of law, and seven for findings of fact, and submitted a brief in support of these requests. No action was taken by tbe court on either, and no opinion was filed. On December 31,1919, tbe court granted a decree in divorce.
In reviewing tbe evidence brought up on an appeal after a trial in open court by a judge, where tbe evidence is in irreconcilable conflict, and tbe correct determination of tbe issues of fact depends upon a determination of tbe veracity of witnesses who have given opposing testimony, tbe appellate court will, amongst other things, consider and give weight to tbe fact that tbe judge who saw and beard tbe witnesses and observed their manner of testifying bad a much better opportunity than tbe appellate court to form a correct judgment as to their credibility: King v. King, 36 Pa. Superior Ct. 33. Tbe ability, learning and conscience of tbe court must be called into exercise before there can be a dissolution of tbe marriage contracts and except where there has been an issue and jury trial, it is tbe duty of tbe court to review tbe testimony and adjudge whether it sustains tbe complaint of tbe libellant Middleton v. Middleton, 187 Pa. 612. In no case has it ever been tolerated that tbe court below should be relieved from answering requests for conclusions of law, and findings of fact, and giving a careful consideration of tbe testimony, to be shown in an opinion filed. Such a disregard of our rules of practice cannot be overlooked as they are mandatory. But, inasmuch as their record discloses that tbe decree entered in this case was made
Tbe parties were married about 1890. They lived together until' December, 1916, when tbe libellant purchased a farm, some distance from tbe city, with tbe intention of building a bouse there for bis personal occupancy. At tbe same time be remodelled bis town bouse, and after a conference with bis wife, as to tbe quarters she desired to occupy, apartments were constructed with bis consent and at her request. She and her daughter occupied these, while tbe husband lived at bis mountain home. This arrangement was apparently satisfactory to each; she was not ashed to pay rent, and tbe husband continued to visit her, frequently bringing with him products from tbe farm, taking many meals there that were prepared by bis wife and daughter, and remaining over night a number of times. This establishment, as set up by tbe husband, was maintained by bis generous support until tbe institution of this proceeding for divorce.
Taking tbe record as presented in cold type, it lacks every element of wilful and malicious desertion for and during tbe term and space of two years. Tbe living apart was clearly by mutual consent, and tbe refusal of tbe Avife to abandon their common domicile in tbe city and remove to tbe country home, does not show any guilty intent to desert, and tbe husband on tbe facts disclosed in this record, cannot claim a wilful and malicious desertion. Where tbe husband has assented to tbe separation between himself and bis wife be cannot charge her with wilful and malicious desertion within tbe meaning of tbe divorce law. While it is true that a husband has tbe right to select a domicile, be must nevertheless procure
The decree entered is reversed, and the libel dismissed at the cost of the appellee.
