Wilson v. Wilson

80 Pa. Super. 20 | Pa. Super. Ct. | 1922

Opinion by

Trexler, J.,

The Act of March 13, 1815, section 1, 6 Smith 286, provides among the causes for which a divorce may be decreed that: “either party at the time of the contract was and still is naturally impotent or incapable of procreation.” The libellant' in the present case testified that although she and the respondent had lived together for more than two years, the marriage had never been physically consummated. She was corroborated by a physician who had examined her and found her still intact and apt. There were other witnesses who testified to statements made by the husband which were in the-nature of admissions. His testimony was that “to the best of his knowledge” he had had intercourse with his wife. He refused from time to time to see a physician and assured his wife that things would adjust themselves in time. He however denied that he was impotent and shortly before the hearing before the master he was examined by a physician who pronounced him apparently normal.

After carefully reading the testimony we are all of the opinion that the learned court was right in granting the divorce. The narrative of the libellant is more positive, credible and consistent, and more strongly corroborated than the respondent’s. The period of time these parties lived together without intercourse supports the conclusion that his defect is permanent and incurable. He could not by persisting in his refusal to consult a physician in order to be cured if possible, indefinitely continue a relation for which he was incapacitated. When there has been no sexual intercourse after an ostensible cohabitation as man and wife for three years or for a less time with other facts which in conjunction with the less cohabitation satisfy the tribunal of the impotency, it may be deemed established. Bishop on Divorce, sections 1286,1287,1288. A full discussion of the subject will be found in Tompkins v. Tompkins, 92 New Jersey Eq. 113.

The appellant has raised the question of jurisdiction alleging that the libellant has not been a resident of Pennsylvania for a full year prior to the filing of the libel. The master’s finding that the libellant had a bona fide residence is well supported by the facts. The original domicile continues nntil changed for another with the intention of making it a true fixed and permanent abode: Hunnings v. Hunnings, 55 Pa. Superior Ct. 261; Shaw v. Shaw, 72 Pa. Superior Ct. 191. There is no evidence showing that the libellant ever acquired a residence in New York, nor had the husband acquired one when his wife left him. The libellant testified that she had told her husband she intended leaving him before he was arranging to go to New York, and when the house Was closed in Pittsburgh and the furniture sent to New York she had already made arrangements to live with her parents in Philadelphia and had sent her clothing there. The decision of the respondent to make New York his permanent residence came later. It is true he states his intention to become a citizen of New York was formed earlier but the facts do not bear this out and he himself testified that the hotel at which they stayed in New York City was not regarded as a home but merely as he termed it, their temporary address. We think that the residence of the libellant was properly proved, and that the court had jurisdiction.

The assignments of error are overruled.

The decree of the lower court is affirmed, the respondent to pay the costs.