Zimmerman v. Zimmerman

• Decision Date: 03 January 1968
• Parties: Eugene W. ZIMMERMAN v. Eleanor ZIMMERMAN, Appellant.
• Court: Pennsylvania Supreme Court

Page 785

236 A.2d 785

428 Pa. 118

Eugene W. ZIMMERMAN v. Eleanor ZIMMERMAN, Appellant.

Supreme Court of Pennsylvania.

Jan. 3, 1968.

Donald M. Swope, Gettysburg, for appellant.

John H. Bream, Huette F. Dowling, Harrisburg, for appellee.

Before BELL, C.J., and MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.

OPINION

JONES, Justice.

Eugene W. Zimmerman and Eleanor Zimmerman were married April 8, 1930. The parties lived together until April 13, 1959 at which time Eleanor Zimmerman departed from the matrimonial domicile in Cumberland County and removed to a hotel in Harrisburg and later to Adams County. From April 13, 1959 to the present time, the parties have lived separate and apart.

On October 19, 1959--over six months after leaving the matrimonial domicile--Mrs. Zimmerman in Adams County instituted an action seeking a divorce from bed and board and, in this action, she alleged adultery and indignities as grounds for such divorce. The Common Pleas Court of Adams County held that she had not established either ground for divorce and, on appeal, the Superior Court, on April 12, 1962, affirmed the action of the Adams County Court refusing to grant a divorce. See: Zimmerman v. Zimmerman, 198 Pa.Super. 26, 180 A.2d 97 (1962). One week thereafter, Mr. Zimmerman instituted an action in Cumberland County against Mrs. Zimmerman seeking a divorce a.v.m. on the grounds of desertion and indignities. The Cumberland County Court refused to grant a divorce on the grounds alleged and, on appeal, the Superior Court affirmed the action of the Cumberland County Court. See: Zimmerman v. Zimmerman, 202 Pa.Super. 176, 195 A.2d 799 (1963). The basis for the court's refusal to grant a divorce on the ground of desertion was that the period of time during which Mrs. Zimmerman's Adams County divorce action was pending could not be included in the two year statutory period necessary to establish a legal desertion.

On May 23, 1964, Mr. Zimmerman instituted the instant action in the Court of Common Pleas of Cumberland County seeking a divorce a.v.m. alleging that Eleanor Zimmerman had commited wilful and malicious desertion and had been absent from the matrimonial domicile without reasonable cause since April 13, 1959. It should be noted that this action was instituted approximately two years and two months subsequent to the date of affirmance by the Superior Court of the final decree of the Adams County Court in the action previously instituted by Mrs. Zimmerman.

In the present action, after the taking of voluminous testimony, the master recommended that a divorce a.v.m. be granted and the Court of Common Pleas of Cumberland County adopted the recommendation of the master and entered a decree granting a divorce a.v.m. ¹ On appeal, the Superior Court handed down a per curiam opinion wherein it recited that, since the six judges who heard the argument of the appeal were equally divided in opinion, the decree of the court below as affirmed. This Court granted allocatur.

The basic question raised on this appeal is whether, prior to the expiration of the two year statutory period, Mrs. Zimmerman had made a Bona fide offer of reconciliation and to return to the matrimonial home to her husband which the latter rejected. In resolving this question, we bear in mind the scope of our review: (1) even though the master before whom the testimony was taken, because of the opportunity afforded him to hear and to observe the witnesses, was in a better position than this Court to pass upon the credibility of such witnesses, the findings of the master, although entitled to due consideration, are not controlling or binding upon us: (Nacrelli v. Nacrelli, 288 Pa. 1, 6, 7, 136 A. 228 (1927); Smith v. Smith, 157 Pa.Super. 582, 583, 584, 585, 43 A.2d 371 (1945)f Langeland v. Langeland, 108 Pa.Super. 375, 379, 380, 164 A. 816 (1933); Law of Marriage and Divorce in Pennsylvania, Freedman, (2d ed.) vol. 3, § 654 and cases therein cited); (2) except where a jury has rendered the verdict, this Court in a divorce action must review all the evidence and from such review determine whether the ground alleged as a cause for divorce has been legally established (Bobst v. Bobst, 357 Pa. 441, 444, 54 A.2d 898 (1947); Esenwein v. Esenwein, 312 Pa. 77, 80, 81, 167 A. 350 (1933)).

Our initial inquiry is When, under the instant factual situation, the two year statutory period necessary to establish desertion as a ground for divorce began to run. The Superior Court in Zimmerman v. Zimmerman, 202 Pa.Super. 176, 195 A.2d 799, supra, said: 'It has long been the law that in computing the statutory period necessary to support a divorce for desertion, the time of the voluntary separation of the defendant during the pendency of a previous divorce suit Brought in good faith by the defendant, cannot be included by the plaintiff in the two-year statutory period. (Citing authorities.)' (Emphasis added.) With that statement of the law we are in accord. Moreover, in that case, the Superior Court concluded that the divorce action broght by Mrs. Zimmerman in Adams County had been 'brought in good faith' insofar as the allegation concerning indignities was concerned and that, even though she had failed to legally establish the existence of such indignities and thus was not entitled to a divorce on that ground, nevertheless she was entitled to the benefit of the rule of law which tolls the two year statutory period during the pendency of the divorce action. We agree with that conclusion.

In the instant divorce action, the Court of Common Pleas of Cumberland County stated: 'The statutory period for desertion of two (2) years began to run from April 13, 1959. Excluding the period involved in the pendency of the Adams County divorce action, to wit: October 19, 1959 to April 12, 1962, the two (2) year statutory period expired October 7, 1963, at the least. If the six (6) months prior to the filing of her divorce action is not counted as part of the period, the desertion period would begin April 12, 1962 when the Superior Court handed down the order affirming the dismissal of her complaint in divorce in Adams County. This date was one week more than two years prior to the filing of the complaint in this present action. It thus appears that no matter which date for desertion was taken, the two year period had run when the complaint in the present action was filed.' This conclusion is sound both factually and legally.

That Mrs. Zimmerman departed 'from the habitation' of her husband and has been absent therefrom for upwards of two years is established beyond question. Upon her rested the burden of justifying the desertion by establishing that she had 'reasonable cause' for her withdrawal from the matrimonial domicile (Hensel v. Hensel, 198 Pa.Super. 613, 616, 184 A.2d 151 (1962); Colin v. Colin, 190 Pa.Super. 125, 128, 151 A.2d 801 (1959)) and such 'reasonable cause' must be such as would entitle her to a divorce (Popovic v. Popovic, 195 Pa.Super. 291, 295, 171 A.2d 608, aff'd 409 Pa. 456, 187 A.2d 164 (1963); Jones v. Jones, 189 Pa.Super. 461, 465, 151 A.2d 643 (1959)). That Mrs. Zimmerman did not establish such 'reasonable cause' for withdrawing from the matrimonial domicile was conclusively established by Zimmerman v. Zimmerman, 198 Pa.Super. 26, 180 A.2d 97, supra (1962).

To avoid the grant of a divorce on the ground of desertion Mrs. Zimmerman's only recourse was to establish that she had made a Bona fide offer of reconciliation and to return to the matrimonial domicile which offer her husband had rejected. Such an offer had to be made in good faith, pursuant to a sincere desire to resume marital relations, and within the applicable statutory period. Colin v. Colin, supra; Helm v. Helm, 143 Pa.Super. 22, 25, 17 A.2d 758 (1941). That such offer was made must be established by clear and convincing evidence.

This Court in Gordon v. Gordon, 208 Pa. 186, 187, 57 A. 525 (1904) stated: 'No divorce for (desertion) will be granted for a desertion that is not without reasonable cause, and has not existed for at least the space of two years. While this is true, it is well settled that, to bar the running of the term against the offending party, an offer of reconciliation, or an offer to return to the injured party, must be made in good faith, with the desire that it be accepted, and with the intention that, if the reconciliation is effected, the derelict party will honestly perform his whole duty as husband towards the one whom he deserted. Such an offer must be accepted, and a party refusing it is not in a position to demand a decree of divorce. If, however, the offer to resume marital relations is not made in good faith, and with the intention to live in the relation of husband and wife, but with a view of defeating a divorce, or for any other dishonest purpose, the injured party may decline to accept it, without being deprived of the right to procure a divorce after the expiration of two years from the date of the desertion: (Citing authorities).' Justice (later Chief Justice) Agnew colorfully stated in McClurg's Appeal, 66 Pa. 366 (1870), the offer of reconciliation must not 'have the hand of Esau, and yet betray the voice of Jacob'. (p. 373.)

We have examined carefully the instant record in its entirety. Mrs. Zimmerman relies principally on two offers of reconciliation both of which were made within three weeks of the termination of the two year statutory period. No offer of reconciliation took place until almost four and one half years after Mrs. Zimmerman left her husband.

The first offer of reconciliation upon which reliance is placed occurred on September 20, 1963. Mrs. Zimmerman, ostensibly anxious to visit Rosalie Johnson, a daughter of the parties, went to Missouri where the daughter lived. Mrs. Zimmerman requested her daughter--who so obviously loved both her parents and wanted to remain neutral in the matter--to call Mr. Zimmerman in Pennsylvania and ask if...