Trussell v. Trussell
| Decision Date | 01 March 1935 |
| Docket Number | 462-1934 |
| Citation | 177 A. 215,116 Pa.Super. 592 |
| Parties | Trussell v. Trussell, Appellant |
| Court | Pennsylvania Superior Court |
Argued November 2, 1934
Appeal by respondent from judgment of C. P., No. 5, Philadelphia County, June T., 1928, No. 159, in the case of Percy L Trussell v. Katharine Trussell.
Libel for divorce a. v. m. on ground of desertion.
The facts are stated in the opinion of the Superior Court.
Report filed by master recommending divorce. Exceptions to report dismissed and final decree of divorce entered. Opinion by Smith, P. J. Respondent appealed.
Errors assigned, among others, were dismissal of exceptions to report of master.
Decree reversed and libel dismissed.
E. S Richardson, of Middleton, Blakely & Richardson, for appellant.
Milford J. Meyer, and with him Eugene John Lewis, for appellee.
Before Trexler, P. J., Keller, Cunningham, Baldrige, Stadtfeld Parker and James, JJ.
This is an action of divorce brought by a husband against his wife on the ground of wilful and malicious desertion. The libel was filed May 5, 1928. It fixed April 21, 1926 as the date when respondent's wilful and malicious desertion began and averred that it had continued from that time to the date of bringing the action. The respondent, who had been served with the libel in Philadelphia on June 18, 1928, appeared and answered, and denied that on the date alleged in the libel, or any other date, she had deserted the libellant. The case was referred to a master, who, on August 28, 1929, filed a report recommending a divorce. Exceptions filed by the respondent were argued, and on July 13, 1931 the exceptions were dismissed and the report of the master approved. On July 2, 1934 the final rule for divorce was made absolute and a decree was entered divorcing the libellant from the respondent. The respondent appealed. We recite these dates in order that it be understood that the delay in the case has not been in this court.
We have read and re-read with care the evidence in the case, and, giving due consideration to the fact that the master saw the witnesses who testified, we are still unable to agree with the findings and conclusions of the master and the court below. In our opinion the undisputed evidence in the case, in connection with documentary and other evidence, which is persuasive to us, requires a finding that the libellant did not establish a wilful and malicious desertion by his wife, and a consequent decree dismissing the libel. As our judgment runs counter to that of both the master and the court below we shall set forth our reasons at more length than we would otherwise deem necessary.
The parties were married at Baltimore, Maryland, on April 29, 1911. The libellant was a newspaper man, who worked on a Baltimore paper. They lived together in that city until 1914. That year they moved to Philadelphia, where he was employed on a paper. In 1917 they went back to Baltimore and between that year and 1923 he worked in Baltimore, Washington, D. C., and Newark, N. J. In 1923 he came back to Philadelphia, where he worked on the Evening Public Ledger. On March 1, 1925 he went to New York and stayed there until April 20, 1925. Then he came back to Philadelphia where he worked until September 1, 1925. Then he returned to New York where he stayed from September 1, 1925 until April 1, 1926. During this time he was taken sick with pneumonia and then lost his job -- was discharged in February, 1926. On April 1, 1926 he returned to Philadelphia. We have gone into these matters in some detail, although they are not directly pertinent to the issue, -- notwithstanding so much of libellant's testimony was taken up with their recital -- for a reason which we shall now state.
On April 30, 1926 he filed a libel to No. 5 June Term, 1926 in the Court of Common Pleas No. 5 of Philadelphia County, alleging that his wife had wilfully and maliciously deserted him on September 21, 1923 and had continued in such desertion "from thence hitherto." Yet he admitted on the hearing in the present case that his wife had lived with him in Philadelphia and New York in 1923, 1924 and 1925, and they had had marital intercourse together during those years, while she was with him. He admitted that her mother was very sick in Baltimore in the spring of 1925 -- she died that summer -- and that when he was sick with pneumonia in January or February of 1926, at the Hotel St. George, Brooklyn, she had come on from Baltimore to nurse him and stayed with him for several weeks, and, when she left, had borrowed the money to pay his hotel bill, as he had lost his job. The first libel was dismissed on November 15, 1927, for want of prosecution, the libellant giving as his reason that he had learned that his having marital intercourse with his wife prevented his obtaining a decree. It is true that in his admissions that his wife lived with him in 1923, 1924 and 1925 he stated -- which she emphatically denied -- that she lived with him 'when it suited her,' or 'for a short time,' or 'about half the time,' for certain periods, and spent the rest of her time in Baltimore, but it cannot be denied that, according to his own story, while she may have divided her time between Philadelphia and Baltimore and spent more of her time in the latter place than he wanted her to, there was no desertion up to April 1, 1926. And yet he swore, in his libel, filed April 30, 1926, that she had wilfully and maliciously deserted him since September 21, 1923, when his own testimony showed they had lived and cohabited together as husband and wife at frequent intervals, from that time up to at least September, 1925. It will not do to attempt to explain this departure from the truth by saying that he did not understand what was meant by desertion. He is a man whose life has been spent in newspaper work, which requires more than ordinary intelligence and acuteness of understanding. He had counsel who knew the law and what was necessary in order to obtain a divorce on the ground of wilful and malicious desertion. To hold that, when he prepared and filed his libel, alleging a wilful and malicious desertion for over two years, wholly contrary to fact, and covering long periods when she lived with him as his wife, as well as times when she was nursing her sick mother, and when he was without a job and unable to give her a home, he did not know what the language used meant is too much for our credulity.
It shows rather that, on April 30, 1926, he was trying to divorce his wife, and in order to get a divorce was willing to make accusations against her which he knew were false.
This becomes material when we consider his evidence as respects the second libel, the present one.
He testified that on April 16, 1926 he called at her home in Baltimore, and asked her to come and live with him in Philadelphia. He denied having any recollection of having had intercourse with her that day, but said, as she claimed he had, he would not dispute it. He subsequently did dispute it. He did not tell her that he intended to bring an action of divorce within two weeks; he could scarcely have done so for he knew that she had not deserted him. She testified to his call on her at Baltimore on this date and that he had had intercourse with her that day. She denied that he asked her to live with him on that occasion, and said he told her he was not making enough money to have her with him; that when he did he would let her know and send for her; which he never did.
He testified that he made frequent attempts to get his wife to come and live with him and that she refused and said she would live no place but in Baltimore and that he should move there and get a position on a paper there. But it is clear, from his later testimony, that he was referring to a time prior to April 16, 1926. Hers is diametrically opposite -- that she was willing to go wherever he wanted her to; but he did not want her with him; that she wrote to him frequently asking him to let her come and he did not answer her; that he told her he was living in bachelor quarters with two other young men on the paper and that he could not afford to set up housekeeping with her. When they were together in Philadelphia, they had lived part of the time in one room in a rooming house. He produced only two letters from her during that two year period. She had learned of the first divorce action and she was bitter in her comments about his course in that respect and the advice that led him to take it, but neither of the letters contain anything that could be construed as a refusal to live with him. In them she denied ever having deserted him or given him cause for taking such action. On the other hand she produced a few letters from him, which were excuses for not sending her more money, because he did not yet have a paying job. In none of them was there a request that she should join him, even when his financial affairs got better.
While a great deal of libellant's testimony was devoted to matters which occurred before April 1, 1926, it is really not very relevant or material, if at all, in this case. His own evidence and admissions conclusively rebut any desertion by the respondent prior to April 1, 1926. Unlike cruel and barbarous treatment and indignities to the person, alleged acts of desertion cannot be tacked on to alleged prior desertions, if they are broken or separated by the parties living together in the family relation, however brief such period may be. To be effectual as a cause for divorce in this State the desertion must not only be wilful and malicious, but must be continuous and uninterrupted for two years. The fact that the respondent, on learning of libellant's illness in New York, went to his bedside, nursed him...
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