Reiter v. Reiter
| Decision Date | 19 July 1946 |
| Citation | 159 Pa.Super. 344,48 A.2d 66 |
| Parties | Reiter v. Reiter, Appellant |
| Court | Pennsylvania Superior Court |
Argued December 14, 1945.
Appeal, No. 32, Oct. T., 1945, from judgment of C. P Northampton Co., Nov. T., 1941, No. 132, in case of H Maurice Reiter v. Eva Reiter.
Divorce proceeding. Before Laub, P. J.
Verdict in favor of libellant and decree of divorce on ground of desertion entered. Respondent appealed.
Abraham Wernick, with him Israel Krohn, for appellant.
Lewis R. Long, for appellee.
OPINION
On October 13, 1941, the husband appellee filed a libel in divorce charging his wife, in the language of the statute, with wilful and malicious desertion beginning July 12, 1931. A jury trial resulted in a verdict for the libellant, upon which a decree of divorce was entered, and the wife-respondent appealed.
The essence of the present case is in the libellant's testimony that about 9:00 P. M. on July 12, 1931, his wife came to his room (in the house where both resided) and yelled: "You get out of the house, and if you don't I'm going to bash your brains in", and "I will holler 'murder' out the window to make people believe you are trying to harm me." The libellant then left and testified that his wife said: ". . . and don't try to come back, because I am going to change the locks on the doors . . ." He further testified that she was very angry, that he did nothing to provoke the outburst, and that he believed at that time that she would do him "bodily harm", and that he left because "I was afraid of my life." He also testified that when he left on July 12 he "never intended to resume habitation" with his wife, that he returned several times within the next nine days and found certain doors locked, but that these subsequent visits were for the purpose of seeing his children (and not his wife), and of reclaiming his clothes (and not the marital relationship).
If the libellant is entitled to a divorce on the ground of desertion it must be upon the events of July 12, 1931, and the alleged locking out of doors, etc., are but corroborative of the purpose of the respondent.
Appellant and appellee both speak of this as a "constructive desertion" and it is frequently so referred to by the profession. The name is unimportant except as it may lead to loose reasoning, for if by the term "constructive desertion" there is meant an enlargement of the statutory grounds for divorce by judicial construction -- it does not exist in Pennsylvania. If it is a description of a particular factual type of the desertion defined by the statute, it may exist, but it is not aided by the terminology.
Because of the lack of appellate court discussion, some analysis must be made of this type of case where the guilty spouse extrudes the innocent spouse from the common habitation. We may pass by the cases where a defense to a charge of desertion is made by showing that respondent left by reason of the acts of libellant, as in McDevitt v. McDevitt, 148 Pa.Super. 522, 25 A.2d 853.
A separation which occurs because the respondent directs or even importunes the libellant to leave, is but a consentable separation. Neither the eagerness of the one, nor the reluctance of the other, nor the acquiescence of both can convert this into a wilful and malicious desertion.
"Indignities to the person . . ., as to render his or her condition intolerable and life burdensome" [1] (which must consist of a course of conduct evidencing a "plain manifestation of settled hate": Rose v. Rose, 124 Pa.Super. 437, 188 A. 595) entitle the innocent spouse to a divorce on those grounds, but not on the ground of desertion.
Cruel and barbarous treatment is a ground for divorce under the statute where it endangers libellant's life or where there is a reasonable apprehension thereof: Sklan v. Sklan, 110 Pa.Super. 226, 168 A. 481. A spouse withdrawing because of such treatment of course has a good defense if charged with desertion: Bates v. Bates, 153 Pa.Super. 133, 33 A.2d 281.
The Divorce Law of 1929 (23 P. S. § 1 et seq.) defines the causes for divorce, and in sub-section (d) of § 10 provides: "(d) [Where the other spouse] shall have committed wilful and malicious desertion, and absence from the habitation of the injured and innocent spouse, without a reasonable cause, for and during the term and space of two years."
(1). Where a husband purposely locks out, or bars, his wife from the common habitation, her habitation is no longer his home, but is the street or the place to which she goes, and the husband has deserted her and absented himself from her habitation which he forced her to obtain by destroying for her the common abode. If wilful and malicious, and without reasonable cause, and persisted in for two years, it is a desertion in the words of the statute.
(2). So, too, where a husband physically ejects his wife from the common home.
(3). So, also, where a husband threatens immediately to inflict bodily harm on his wife unless she leaves, and she departs against her will and because of a justifiable fear of physical injury.
These are rules for guidance and must not be read as an act of assembly or a contract. They are neither invariable, exclusive nor without exception. They are, of course, as applicable to the acts of the wife as they are to those of the husband. They are formulated from such cases as Howe v. Howe, 16 Pa.Super. 193, 198, in which the Court said: "When the wife is obliged by the cruelty or violence of her husband to leave him for safety and to avoid personal injury, her compulsory flight amounts to desertion by him"; Krebs v. Krebs, 109 Pa.Super. 175, 167 A. 249 (distinguishing Young v. Young, 82 Pa.Super. 492); and the carefully considered opinions of Judge Reese and Judge Sheeley respectively, in Barnes v. Barnes, 21 D. & C. 101; Pierce v. Pierce, 36 D.C. 420.
In the type of desertion now discussed the libellant must be wilfully and maliciously put out by force or justifiable fear of immediate bodily harm, or locked out against the will, and without the consent, of the innocent spouse.
In the instant case there was a jury trial and the courts are bound by the facts found by the verdict, and our examination is confined to errors of law, including whether the verdict is sustained by the evidence: Elsesser v. Elsesser, 80 Pa.Super. 117; Middleton v. Middleton, 187 Pa. 612, 41 A. 291. The courts may not make an independent examination as to the believability of the evidence, pro or con. Therefore, if the jury, upon proper instructions, found as a fact that the libellant left because of justifiable fear for his life, the libellant comes within the rules above stated. The real question was whether he left because he had a reasonable apprehension that his life was in danger. The charge of the court was inadequate in this respect. The court charged: This permitted a verdict for the libellant if the jury found that the threat was made, whether or not the libellant actually feared loss of his life if he did not leave; and it did not require the jury to determine whether libellant's alleged fear was well-founded. If the libellant left because of his wife's order, and not because of fear, his leaving was but a consentable separation entitling him to defend an action of divorce on the ground of desertion, but it did not constitute a desertion by her. The court affirmed libellant's point as follows: "If the jury finds from the evidence that Eva Reiter compelled her husband on July 12, 1931, to leave their joint home, by threatening him, and . . . refused to permit . . . the husband to return to his home; . . . and thiswas persisted in for a period of two years or upwards . . . then she is guilty of wilful and malicious desertion." (Emphasis supplied). The use of the word "compelled" was unfortunate. It is frequently used as a synonym for "impelled", "caused" or "required", as where one is "compelled to keep his word"; or "a compelling reason", or, as lawyers frequently use it, "compelled to differ with opposing counsel" (or the court). Dissenting judges have stated that they were "compelled to differ with the majority [opinion]." [2] A layman wrote a will: "My wife shall receive the compulsory portion [of my estate]". [3] The point was not a safe instruction without explanation. Even if the word "compelled" was understood by the jury as a physical compulsion, or well-founded fear thereof (which is highly doubtful), the situation is that the court charged both correctly and incorrectly on the same proposition, and it is impossible to determine which instruction was followed by the jury, and reversal must be had: Rice v. Commonwealth, 100 Pa. 28, 32.
Respondent-appellant raises the question of res adjudicata in that Dr. Reiter sued his wife for divorce in Philadelphia County, [4] the subpoena being awarded February 25, 1933, alleging that the respondent "did by cruel and barbarous treatment endanger the life of your libellant; and . . . did offer . . . indignities to the person of your libellant . . ." That case, after a bill of particulars filed, was referred to a master, whose report recommended the dismissal of the libel with findings, (a) that Dr. Reiter was not the injured and innocent spouse, (b) that libellant was guilty of indignities and cruelty to his wife, and (c) that respondent was not guilty of indignities or cruel and barbarous treatment. In the Philadelphia case the...
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