82 Pa. Super. 308 | Pa. Super. Ct. | 1923
Argued October 17, 1923. This suit for divorce on the ground of desertion was begun on June 29, 1922, and it was alleged in the libel that the desertion took place on June 13, 1920. In her answer, respondent denied that she wilfully and maliciously deserted libellant on the date named, or at any *310 other time, and alleged that libellant invited her to leave his house and that he subjected her to such indignities to her person as to render her condition intolerable and life burdensome, thereby compelling her to withdraw from his home and family on June 13, 1920. The court below sustained exceptions to the report of the master recommending a divorce and dismissed the libel. Hence this appeal.
The fact that respondent left libellant's house on June 13, 1920, was undisputed, and the principal question raised before the master was whether there was a wilful and malicious desertion and absence of respondent from the habitation of the complainant without reasonable cause for and during the space of two years. It was admitted that preceding the separation of the parties on June 13, 1920, they had an argument which resulted in libellant's striking respondent upon the mouth. Whereupon, she left his home. The next day respondent returned and removed some articles from the house. A little later respondent began proceedings against libellant in the municipal court to obtain an order for her support. On August 23, 1920, she instituted in Court of Common Pleas No. 4 of Philadelphia County an action in divorce against her husband, alleging that he had offered such indignities to her person as to render her condition intolerable and life burdensome, thereby causing her to withdraw from his home and family. During the course of the latter proceeding, the husband offered to take the wife back and she refused to return. She testified that her refusal was based upon the intolerable treatment accorded her by him and upon the belief that he did not desire her to return. The wife's action for divorce resulted in a dismissal of the libel. While the decree in the former suit is a bar to the defense of indignities to the person of the wife in the present suit because it was a conclusive adjudication that the respondent in that proceeding, the libellant here, had not been guilty of offering indignities to the person of the *311
wife, the determination of that suit adversely to her does not prevent her from setting up in the present suit that her husband consented to her withdrawal or that there was not on her part a wilful and malicious desertion: Kelly v. Kelly,
But for another reason libellant is not entitled to a decree. The time of voluntary separation of either party during the pending of a divorce suit cannot be included in computing the statutory period necessary to support a *312 decree of divorce for desertion in a suit brought after the dismissal of the former complaint. The reason for this is that such separation was justifiable if the former proceeding was in good faith: Zeiler v. Zeiler, supra. Libellant's suit was instituted less than seven months after the wife's libel was dismissed. The desertion charge covers nearly all of the time during which the wife's suit was pending. The fact that his suit was begun more than six months after the termination of his wife's suit does not distinguish his case from Zeiler v. Zeiler, supra, because the time of the pending of the wife's case is covered in the desertion charge. On both grounds, the libel was properly dismissed.
The decree is affirmed at appellant's cost.