Grace v. Grace
| Decision Date | 15 July 1949 |
| Parties | Grace, Appellant, v. Grace |
| Court | Pennsylvania Superior Court |
Argued March 23, 1949.
Appeal, No. 85, Oct. T., 1949, from decree of Court of Common Pleas of Bucks County, Dec. T., 1947, No. 2, in case of William C. Grace v. Emma D. Grace.
Divorce proceeding.
Report of master filed recommending that libel be dismissed exceptions to master's report dismissed and final decree entered dismissing libel, opinion by Boyer, J. Libellant appealed.
Samuel S. Gray, Jr., with him Eastburn & Gray, for appellant.
No appearance was made nor brief submitted for appellee.
OPINION
The libellant seeks a divorce from his wife in this uncontested action on the ground of desertion. The court below adopted the recommendation of the master that a decree in divorce be refused and dismissed the libel. The sole issue on this appeal is whether there was a consentable separation or a wilful and malicious desertion by the wife. We disagree with the conclusion of the learned court below that the separation was consentable and we find the separation constituted a wilful and malicious desertion by the respondent, warranting an award of a divorce to the libellant.
Four days after the parties married on January 12, 1942, the husband entered the army and remained in the service until his discharge in October, 1945. During that service, excepting of course the three year period spent in the European theatre of operations, the libellant secured frequent weekend furloughs which were passed with his wife in Bucks County, either in the home of his or her parents. The parties lived together in the home of libellant's father for three weeks after his discharge from the army and immediately preceding the separation which occurred on or about November 1, 1945. Apparently the marital relations prior to the separation were entirely harmonious and very pleasant. Any excusatory cause for the separation or for her withdrawal from his home must be gleaned from the libellant's testimony for, as already observed, respondent did not testify.
We have repeatedly said that desertion which entitles an injured or innocent spouse to a divorce is "an actual abandonment of matrimonial cohabitation, with an intent to desert, wilfully and maliciously persisted in, without cause, for two years": Ingersoll v. Ingersoll, 49 Pa. 249, 251. See section 10, "The Divorce Law" of May 2, 1929, P. L. 1237, as amended, 23 PS § 10. Guilty intent is manifested where, without cause or consent, either party withdraws from the residence of the other. "The malice of the desertion arises from its being the perverse act of the one, in refusing the performance of the matrimonial obligations and duties, which the other has the legal right to require": Kelly v. Kelly, 51 Pa.Super. 603, 608.
"The withdrawal by the wife from the common domicile and cessation of marital relations imposed upon her the burden of proof to establish by the preponderance of the evidence facts that would entitle her to a decree of divorce (citing cases) or that the separation was by consent": Ewing v. Ewing, 140 Pa.Super. 448, 449, 14 A.2d 149. "The defense of a separation with the consent of libellant is affirmative and the burden of proof to establish that fact by satisfactory evidence is on the respondent (citing cases)": Hagen v. Hagen, 159 Pa.Super. 539, 541, 49 A.2d 193; Tatem v. Tatem, 164 Pa.Super. 307, 312, 64 A.2d 514. However, the reason of the rule ceases where the libellant by his own evidence shows such consent to a separation as to negative a wilful and malicious desertion by the respondent. By such evidence the libellant establishes a defense to his own action as much as if the same facts were proved by the respondent.
In concluding that consentable separation was established by the evidence of the libellant himself the learned court below erred. The germane testimony bearing on the separation is substantially as follows: ...
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