Opinion
October 21, 1938.
November 18, 1938.
Divorce — Desertion — Departure from home of husband's mother — Return to marital home — Counsel fees — Costs — Allowance.
1. A decree sustaining exceptions to the report of a master and dismissing the libel, for the reason that the evidence failed to show a wilful and malicious desertion of the libellant by the respondent, as alleged in the libel, was affirmed on appeal, where there was evidence to justify findings that libellant and respondent, at the time they left their home and removed to the home of libellant's invalid mother, had no intention of abandoning their own home in favor of the libellant's mother's home, where respondent did all the work, and that respondent left and went back to their own home because she was so sick that she could not continue to perform her household duties and the care of libellant's mother.
2. It was held, in the circumstances present in this case, that the court below was not guilty of an abuse of discretion in allowing respondent an additional counsel fee of $350 and $18 costs.
Appeal, No. 228, Oct. T., 1938, from decree and order of C.P. No. 7, Phila. Co., June T., 1937, No. 255, in case of Frank E. Hare v. Helen Ross Hare.
Before KELLER, P.J., CUNNINGHAM, BALDRIGE, STADTFELD, PARKER and RHODES, JJ. Decree and order respectively affirmed.
Divorce proceeding.
The facts are stated in the opinion of the Superior Court.
Report of master filed recommending divorce on ground of wilful and malicious desertion. Exceptions to master's findings sustained and decree entered dismissing libel, opinion by CRUMLISH, J. Respondent appealed. Error assigned, among others, was dismissal of libel.
Arthur S. Arnold, with him Alma H. Arnold, for appellant.
William T. Connor, with him John R.K. Scott and Hardie Scott, for appellee.
Argued October 21, 1938.
This was an action of divorce brought by a husband against his wife on the ground of wilful and malicious desertion. The master recommended a divorce, but the court sustained exceptions to his report and dismissed the libel, for the reason that the evidence fails to show a wilful and malicious desertion of the libellant by the respondent, when she left the home of his invalid mother on Rockland Street, Philadelphia, where they had been staying and where the respondent was doing all the work, and went back to their own home in Elkins Park. Her reason for doing so, the evidence established, was that she was so sick from pregnancy that she could not continue to do the work in his mother's home.
We are all of opinion that the evidence justified the findings and decree of the lower court. The following extracts from its opinion give a brief but sufficient summary of the matter: "It is apparent that at the time the parties left the Elkins Park home, there was no intention to abandon the same in favor of the Rockland Street address. This is supported by the conduct of the parties in leaving most of the furniture in place, in failing to disconnect the electric light and water service and the apparent negotiations for a home loan mortgage. This conduct appears also to support respondent's contention that the removal to the Rockland Street address was under a temporary arrangement serving to reduce living expenses and to furnish care for the libellant's aged and infirm mother. . . . . . A careful reading of all the testimony leads us to conclude that the respondent did not leave the libellant with intent to desert him. At that time, being pregnant and unable to perform her household duties and the care of libellant's mother, she was justified in returning to the Elkins Park home. The libellant's disposition to help his mother is creditable to him but his first obligation is to his wife and expected child: Hill v. Hill, 96 Pa. Super. 410; McCampbell v. McCampbell, 64 Pa. Super. 143." See also Horn v. Horn, 17 Pa. Super. 486; Reynolds v. Reynolds, 62 Pa. Super. 280; Isenberg v. Isenberg, 75 Pa. Super. 551; Hess v. Hess, 105 Pa. Super. 596, 161 A. 743.
The libellant's conduct toward respondent after she went back to the home at Elkins Park, and his callous disregard of the child that was born some months after her departure — never once going to see it, down to the date of the hearing — shed some light on the main point at issue.
We are not satisfied, either, that, in the circumstances present in this case, the court below was guilty of an abuse of discretion in allowing respondent an additional counsel fee of $350 and $18 costs.
The assignments of error are overruled and the decree and order of the court below are respectively affirmed at the costs of the appellant.