Dougherty v. Dougherty

• Decision Date: 12 January 1950
• Citation: 166 Pa.Super. 219,70 A.2d 411
• Parties: DOUGHERTY v. DOUGHERTY.
• Court: Pennsylvania Superior Court

70 A.2d 411

166 Pa.Super. 219

DOUGHERTY v. DOUGHERTY.

Superior Court of Pennsylvania

January 12, 1950

Submitted November 21, 1949.

Appeal, No. 301, Oct. T., 1949, from decree of Court of Common Pleas of Carbon County, Oct. T., 1947, No. 74, in case of Thomas Dougherty v. Marguerite Dougherty.

Divorce proceeding.

Report of master filed recommending decree of divorce on the ground of desertion; exceptions to master's report dismissed and decree of divorce entered, opinion by McCready, P. J Respondent appealed.

Irving W. Coleman, Jerome W. Burkepile, Jr. and Albert H Heimbach, for appellant, submitted a brief.

Frank X. York, for appellee, submitted a brief.

Rhodes P. J., Hirt, Reno, Dithrich, Ross and Fine, JJ. (Arnold, J absent).

OPINION

ROSS J.

In this action brought by a husband for a divorce on the ground of desertion, the master who heard the case recommended that the divorce be granted. Exceptions to his report were dismissed and a decree in divorce entered by the court below, and the wife took this appeal.

The libel was filed on September 24, 1947. The parties were married on April 8, 1917 and resided together until January 11, 1932, when the wife left the common abode, taking with her the five children born to the couple. It is admitted that she has not returned to the residence of her husband, that she has never offered to return to it or to resume marital relations and that she has made no overtures for reconciliation.

"In actions for divorce on the ground of desertion it is not necessary ordinarily to prove actual malice. 'If the desertion is intentional, it is willful. If willful, malicious.' Hedderson v. Hedderson, 35 Pa.Super. 629, 631; Ogram v. Ogram, 162 Pa.Super. 266, 268, 57 A.2d 577. Malice may be inferred from the circumstances, and is presumed where the other elements appear." Rebar v. Rebar, 165 Pa.Super. 341, 344, 67 A.2d 598, 599.

There having been admittedly a separation for the required statutory period, the burden was on the respondent to prove consent or a reasonable cause for her withdrawing from the matrimonial domicile. Mertz v. Mertz, 119 Pa.Super. 538, 180 A. 708. She does not contend that the separation was consentable but contends that she had reasonable cause for leaving the common habitation. The "reasonable cause" which is justification for husband or wife in quitting and abandoning the other, is that and only that which would entitle the separating party to a divorce. Thomas v. Thomas, 133 Pa.Super. 12, 14, 1 A.2d 686; Darrall v. Darrall, 164 Pa.Super. 113, 63 A.2d 693; Boughter v. Boughter, 164 Pa.Super. 574, 67 A.2d 812.

As the basis for her leaving the home, the respondent testified that the libellant was unduly friendly with a Mrs. Fronheiser, that he had an "ungovernable temper, he didn't know how to correct the children, he used every method but the right method"; that he called her and the children names, and finally that she left on January 11, 1932 because there was no fuel or food in the house. The respondent's testimony is so exaggerated that it would not be credible even if it were undenied.

She testified as follows: "Q. How often between 1924 and January 11, 1932, do you know that your husband spent time with Mrs. Fronheiser? A. Every evening . . Q. And was that during that whole period of time? A. Yes. . . . Q. Was there any other source of trouble besides Mrs. Fronheiser, Mrs. Dougherty, between 1924 and 1932? A. No. I think he had an ungovernable temper, he didn't know how to correct the children, he used every method but the right method. . . . Q. What would he say and what would he do? A. Shall I use the language he used? Q. Yes. A. 'You goddam son-of-a-bitch of a bastard', and 'Those bastards are going right out with you, they are nothing but sewer rats. They are nothing but sewer rats, and that is all you ever were'. Q. How often did he use that kind of language? A. That happened two or three times a...