58 Pa. Super. 220 | Pa. Super. Ct. | 1914
CARNAHAN, J., filed the following opinion:
The parties were married on November 27, 1907, and lived together and cohabited until August 9, 1910. The wife then withdrew and has refused to live with her husband continuously and at any time since.
On September 17, 1910, the wife filed in the court of common pleas No. 1 of Allegheny county a libel in divorce, alleging that her husband had been guilty of cruel and barbarous treatment endangering her life, and of indignities such as to render her condition intolerable and life burdensome, and thereby forced her to withdraw from his house and family. The husband filed an answer and, upon his demand, a trial by jury was awarded. The case was terminated January 13, 1913, by a verdict in favor of the husband.
On February 28, 1913, the husband filed this libel, alleging willful and malicious desertion, continuously since August 9, 1910. The wife answers and also testifies that she withdrew in good faith, for the purpose of instituting her proceeding aforesaid, and that she did not willfully and maliciously desert. The matters involved in the wife's libel, are considered as determined in that proceeding.
Testimony has been taken and the case rests upon the above-stated facts.
We are of opinion that the libel has been filed prematurely, and that during the period covered by the litigation instituted by the wife, there was no willful and malicious desertion. There is no replication to her answer, and she says that she acted in good faith. She could not with propriety have lived with her husband, during the pendency of her litigation.
In reaching this conclusion, we are not to be understood as holding that the question of willful and malicious desertion, notwithstanding the circumstance of the filing of a libel in divorce by the wife, is not one of fact to be determined in this proceeding. But, in view of the pleadings, we feel constrained to refuse the decree as prayed for; and we are, further, of the opinion, apart from the question of pleading, that the libellant has not sustained his charge of willful and malicious desertion. *221
To support an action for desertion it is necessary that the complainant establish the fact that there was a willful and malicious desertion, and absence of the respondent from the habitation of the complainant without a reasonable cause for and during the space of two years. This is the requirement of the statute, and the inquiry in all such cases is whether the absence of the respondent from the habitation of the complainant was willful and malicious. Separation alone is not desertion. There may be excuse or justification for such absence. Desertion is an actual abandonment of matrimonial cohabitation with an intent to desert, willfully and maliciously persisted in without cause for two years: Ingersoll v. Ingersoll,
*2 The decree is affirmed at the cost of the appellant.
*1