Hagen v. Hagen
| Decision Date | 30 October 1946 |
| Citation | 159 Pa.Super. 539,49 A.2d 193 |
| Parties | Hagen v. Hagen, Appellant |
| Court | Pennsylvania Superior Court |
Argued October 2, 1946.
Appeal, No. 57, Oct. T., 1946, from decree of C. P. No. 2 Phila. Co., March T., 1944, No. 411, in case of Harry Hagen v. Agnes May Peterson Hagen.
Divorce proceeding.
Exceptions to report of Master, recommending decree of divorce on ground of desertion, dismissed, and decree of divorce entered opinion by Lewis, J. Respondent appealed.
David H. Kubert, for appellant.
Edmund P. Hannum, for appellee.
OPINION
This appeal is by a wife whose husband has been granted a divorce by the court below on the ground of desertion.
The parties were married August 19, 1919, when he was 44 and she 40 years of age. Respondent was born and raised in Canada and is the mother of four children by a previous marriage. The husband was employed as a rigger, which required him to work at a number of different places. He received good wages and provided as well as could be expected for his wife and her children. The parties lived most of their married life in Philadelphia and the western part of New Jersey. In September 1934, the wife left their home in Philadelphia and went to, and has remained in, Canada.
The main question in dispute is whether the wife wilfully and maliciously deserted her husband or whether there was a consentable separation.
The libellant testified that the respondent frequently expressed a desire to return to Canada, where she had retained her citizenship, as she did not like living in the United States; that when he was working in Washington, D. C., on a good job she decided to go to Canada and made arrangements to sell her furniture. When she left he contributed toward her traveling expense in the belief that she was taking a trip, a temporary visit, and she would return to Philadelphia as she had done on prior occasions, notwithstanding she had sold her furniture. The husband, after living with this determined woman for a number of years, apparently realized his inability to dissuade her from carrying out her plans as he said "there was no use in objecting." David Friedman, an employer of the libellant, testified that the wife told him on different occasions that she disliked living in the United States, that she intended to go back to Canada, assume her former name and apply for a widow's pension.
The evidence clearly establishes that the wife became dissatisfied with living in the United States and when she left she intended to return to her old home in Canada and remain there permanently. There was no evidence of any disagreements, other than the wife's dissatisfaction in living in the United States, or that the libellant was other than a sober, industrious man. He sent her affectionate letters, forwarded her money, and asked her to return to Philadelphia. Her continued failure to return resulted in his bringing this divorce action February 25, 1944.
We are mindful that a separation is not necessarily a desertion. There must be an actual abandonment of the marital cohabitation without the consent or encouragement of the other spouse, and an intent to desert, which must be wilfully and maliciously persisted in for a period of two years Barnes v. Barnes, 156 Pa.Super. 196, 198, 40 A.2d 108. A consent to a temporary separation, as...
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