White v. White

• Decision Date: 21 January 1958
• Citation: 185 Pa.Super. 141,138 A.2d 162
• Parties: George K. WHITE v. Helen Bertha WHITE, Appellant.
• Court: Pennsylvania Superior Court

138 A.2d 162

185 Pa.Super. 141

George K. WHITE v. Helen Bertha WHITE, Appellant.

Superior Court of Pennsylvania

January 21, 1958

Argued October 4, 1957

Appeal, No. 218, Oct. T., 1957, from decree of Court of Common Pleas of Schuylkill County, July T., 1953, No. 53, in case of Helen Bertha White v. George White. Decree affirmed reargument refused February 11, 1958.

Divorce.

Report of master filed recommending a decree of divorce on the ground of desertion but holding that evidence did not support charge of indignities; exceptions to master's report dismissed and decree of divorce entered on grounds of desertion and indignities, opinion by STAUDENMEIER, J Defendant appealed.

Decree affirmed.

Jacob A. Raub, Jr., with him Cletus C. Kilker, for appellant.

W J. Krencewicz, for appellee.

Before RHODES, P.J., HIRT, GUNTHER, WRIGHT, WOODSIDE, and ERVIN, JJ. (WATKINS, J., absent).

OPINION

WOODSIDE, J.

This is an appeal from the entry of a decree of divorce in favor of the husband.

The parties were married in 1924. They lived together for 29 years, during which time they had eight children. After they separated in 1953, the husband brought an action of divorce in Schuylkill County charging indignities. He later amended his complaint to include the charge of desertion. The master recommended granting a divorce on the ground of desertion, but he was of the opinion that the evidence did not support the charges of indignities. After each party filed exceptions to those findings of the master which favored the other party, the court below concluded that the evidence supported both of the charges contained in the husband's complaint, and entered a decree of divorce. The wife appealed.

The husband was employed as a truck driver. On February 26, 1953, when he returned from work to the common domicile near Fountain Springs, Schuylkill County, his wife was not there. She never returned, and thereafter the parties never cohabited. For over a year the plaintiff kept the house in the same condition as it was when his wife left it. He then disposed of some of the furniture, but continued to live in the house.

It is clear that when his wife left their home she never intended to return. She went directly to Pottsville as a housekeeper, where she told her employer that she did not want her husband to find out where she was. Later she went to Easton in Northampton County. At the hearing she said, "If I was older and had some sense, like I have today, I would have never married my husband." She had often told him that when the children were old enough, she would leave him, and that once she did she would never have anything to do with him again. She said that she would not live out her life with him. She said that if she could ever get $300 together, she would get a divorce. At the divorce hearing she testified that within the period of two years from the time she left her husband, she dated two different men regularly. She also testified that she would never return to her husband again. The evidence related in this paragraph establishes a desertion which was willful, and presumably malicious.

When plaintiff has established that the defendant left the matrimonial domicile and persisted in the separation for the required statutory period, the burden falls upon the defendant to prove a reasonable cause for her withdrawing from the matrimonial domicile. Totino v. Totino, 176 Pa.Super. 108, 112, 106 A.2d 881 (1954); Dougherty v. Dougherty, 166 Pa.Super. 219, 221, 70 A.2d 411 (1950). The reasonable cause which will justify her separation is only that which would entitle her to a divorce. Grove's Appeal, 37 Pa. 443, 447 (1860); Howe v. Howe, 16 Pa.Super. 193, 195 (1901); Smith v. Smith, 161 Pa.Super. 482, 484, 55 A.2d 434 (1947); Sfakianakis v. Sfakianakis, 183 Pa.Super. 87, 91, 127 A.2d 746 (1956).

She attempted to excuse her leaving the plaintiff on the grounds that "he was crazy", and that she was afraid of him. But she testified that she thought he was crazy for 18 years, and that she was in "constant fear of him for 28 years."

There is no doubt that for over a quarter of a century the marital life of the parties was stormy, and that at times the husband physically abused his wife. The household was filled with physical violence. The plaintiff is not entirely without blame for this, although the evidence establishes that the defendant baited and provoked most of his conduct toward her by her own unwarranted and malicious acts toward him. The plaintiff lacked culture and refinement. He could not qualify as a gentleman; but the right to divorce is not limited to gentlemen.

In the light of the defendant's own conduct, to which we shall refer in discussing the charges of indignities the husband's acts were not sufficient to entitle her to a divorce from him. She was thus not justified in leaving her husband. Rech v. Rech, 176 Pa.Super. 401, 411, 107 A.2d 601 (1954).

The evidence establishes a willful and malicious desertion persisted in for a period of more than two years.

The defendant obtained a support order against her husband in Northampton County about one year after the desertion, but such order does not prevent the husband from securing a divorce on the ground of desertion. Keller v. Keller, 160 Pa.Super. 480, 52 A.2d 373 (1947); Boyles v. Boyles, 179 Pa.Super. 184, 195, 116 A.2d 248 (1955).

The plaintiff filed this action July 7, 1953, within five months of the separation. The only ground for divorce alleged in the original complaint was indignities. In November of 1955 the plaintiff amended his complaint by adding the charge of desertion.

The defendant contends that filing an action for divorce from the defendant on the ground of indignities tolls the two year statutory period of desertion, or, at least, expresses the plaintiff's reluctance and unwillingness to have the defendant return to him and live with him, and is evidence of plaintiff's consent and encouragement to the defendant to separate from him.

For over a hundred years the legislature of this Commonwealth has expressly authorized the bringing of an action in divorce in cases of willful and malicious desertion at any time not less than six months after the separation: Section 17 of the Act of May 2, 1929, P.L. 1237, 23 PS § 17 not affected by the Rules of Civil Procedure, see R.C.P. 1409(2); Act of April 26, 1850, P.L. 590, § 5. Since the statute authorizes this, no adverse inference can be drawn from the mere filing of a divorce action prior to the expiration of the two years statutory period. This is true regardless of anything that might be inferred to the contrary from what was said in Latour v. Latour, 162 Pa.Super. 75, 56 A.2d 332 (1948). See D'Alfonso v D'Alfonso, 138 Pa.Super. 378, 10 A.2d 808 (1940) and Demczak v. Demczak, 103 P.L.J. 267 ...