85 Pa. Super. 473 | Pa. Super. Ct. | 1925
Argued May 5, 1925. The appellant filed a libel in divorce averring wilful and malicious desertion by the respondent; a master was appointed who, after taking voluminous testimony, made a report in favor of the libellant and recommended a decree of divorce. The court below sustained exceptions to the report of the master and dismissed the libel, from which decree we have this appeal. *478
The hearing upon the exceptions to the report of the master was before three judges of the court below, who were unanimous in the conclusion that the libel must be dismissed. The opinion by Judge REID, which will appear in the report of this case, discloses proper appreciation of the importance of the functions of the judges in divorce proceedings and a conscientious discharge of duty. The family relation lies at the foundation of our social system and divorces are not to be granted save for the very cause alleged in the libel, clearly established by evidence. The appellate courts have frequently held that it is the duty of the judges to exercise their own independent judgment as to the law and the facts and not merely to sustain the report of the master upon the ground that there is sufficient evidence to support his findings, without careful consideration of all the evidence presented. That duty was well discharged in the present case. We have examined the evidence in detail, together with the report of the master, and are convinced that the court did not err when it entered the decree that the libel be dismissed.
Without considering the previous misconduct of the husband, which was clearly established by uncontradicted evidence, and assuming that such conduct had been condoned, we will deal only with the circumstances under which the parties separated. The libellant, the respondent and their two unmarried daughters were living with a son-in-law of the parties to this proceeding, to whom the libellant was paying for the board of the family. The son-in-law, who was the husband of the eldest daughter of libellant and respondent, held the lease of the house and was thereof the absolute master. The son-in-law ordered the respondent to leave the house, and she had to go; she told the libellant that she had been ordered out and had to go and he refused to go with her. He made no effort to interpose and induce the son-in-law to permit her to remain; nor did he take any steps to provide a home elsewhere. He continued *479
to make his home with the son-in-law down until the time of the hearing before the master. This was a potential turning his wife out-of-doors. The husband cannot tacitly stand by and see his wife expelled from the house in which they are boarding, without making some effort to accommodate the situation so as to permit her to remain or taking steps to provide a home for her elsewhere. He must, under such circumstances, be held to have acquiesced in her expulsion. All that this libellant did was to agree to pay $15 a week to his wife for the support of herself and her two young daughters who had to go with her, which amount he continued to pay until the marriage of said daughters, when the amount was reduced and he continued to send money to his wife for her support down until the time of taking the testimony, at which time he was sending her $7.50 a week. He has never since his wife was expelled from the only home which he had provided for her offered to receive her back or to provide a home for her at any time or place, and his own testimony clearly indicates that he has not in the interval desired her companionship. Separation is not desertion. The respondent having been compelled to leave the only home which her husband had provided for her, her going was neither a willful nor a malicious desertion: Reynolds v. Reynolds,
The decree is affirmed and the appeal dismissed at cost of the appellant. *480
