45 A.2d 925 | Pa. Super. Ct. | 1945
Argued December 12, 1945. In this divorce action the master who heard the case recommended a divorce on the grounds of desertion. The court below dismissed the respondent's exceptions and entered a final decree, and this appeal followed. At the time of the marriage of the parties in 1931, the libellant and his father were making their home with libellant's sister and her husband at 12 Queen Street in the City of Philadelphia. After their marriage, the parties resided in the same household until 1934, when they moved to a house which had been located and rented by the wife respondent, situated at 126 Catherine Street in Philadelphia. When the parties moved to the latter address, the libellant's father, a man approximately 65 years of age, with the consent of the respondent, went to live with them, agreeing to pay and paying to the respondent until the time of her withdrawal from the home, the sum of $10 a week for board and lodging. On September 15, 1937, according to libellant, and September 21, 1936, according to respondent, the respondent, while the libellant and his father were at work, left the home, taking with her the furniture and household belongings, and went to live with her sister at 122 Catherine Street, where she has since resided.
Desertion 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 then without cause or consent, either party withdraws from the residence of the other.Ingersoll v. Ingersoll,
Where a desertion is conceded or appears and is without legal, reasonable cause, it is presumed to be wilful and malicious, and if persisted in for two years or more, will entitle the injured party to a divorce. Van Dyke v. Van Dyke,
The respondent contends that libellant's father by abusive language and unwarranted interference made it necessary for her to leave the home and that she withdrew therefrom because her husband refused to provide a home for her separate and apart from his father.
Upon request or demand, the libellant was obligated to provide a home for the respondent separate and apart from his father if the father's interference caused difficulty between them. Latz v. Latz,
An examination of the record in this case convinces us that there existed no legal cause for respondent's refusing to live with the libellant and that the real reason she left him was her unwillingness to live with him and not that he would not or could not provide a separate home. The libellant is, therefore, entitled to a divorce.
Decree affirmed.