Opinion
October 5, 1933.
December 16, 1933.
Divorce — Desertion — Evidence — Sufficiency.
In a libel for divorce on the ground of desertion, it appeared that the libellant had established a home for his wife and children in one city but continued his principal residence with his parents in another city. Later the respondent, without notifying the libellant, moved to a different house within a square of the home the libellant had established. The libellant visited her at the new abode and thereafter moved the family to another city and installed them in a home. The libellant alleged that the respondent wilfully and maliciously deserted him when she moved without his knowledge or consent. The respondent denied that she had any intention of deserting her husband.
In such case the libellant failed to establish by clear and satisfactory evidence that the respondent wilfully and maliciously deserted him and the decree of the court below dismissing the libel will be affirmed.
Divorce — Findings of master — Effect of.
The findings of a master in a divorce proceeding are entitled to consideration by the court, but his findings have not the conclusiveness of those of an auditor or a master in chancery. Divorce — Testimony of libellant — Contradiction.
A decree in divorce may be supported by the testimony of the libellant alone, but if his testimony be contradicted and shaken by the respondent and there be no convincing circumstances warranting a disregard of the contradictory evidence, a case has not been made out.
Appeal No. 260, October T., 1933, by libellant from decree of C.P. No. 3, Philadelphia County, June T., 1929, No. 75, in the case of Joseph A. Reinhardt v. Rose M. Reinhardt.
Before KELLER, CUNNINGHAM, BALDRIGE, STADTFELD, PARKER and JAMES, JJ. Affirmed.
Libel for divorce. Before FERGUSON, P.J.
The facts are stated in the opinion of the Superior Court.
The case was referred to Marcus M. Lyons, Esq., as Master, who recommended that a decree in divorce be granted. Subsequently, on exceptions to the master's report, the court, sustained the exceptions and dismissed the libel. Libellant appealed.
Error assigned, among others, was the decree of the court.
A. Bernard Hirsch, of Hirsch and Salus, for appellant.
Frank Bechtel, Jr., and with him Andrew J. Schroder, 2d and Albert T. Hanby, for appellee.
Argued October 5, 1933.
In the libel filed in this divorce case the respondent was charged with cruel and barbarous treatment, indignities to the person, and desertion. On hearing before a master, the libellant abandoned the first two charges and depended alone on desertion. The master having made a report recommending the granting of a divorce, the lower court sustained exceptions to that report and dismissed the libel.
Counsel for libellant contends that the conclusion and findings of the master should be accepted in preference to those of the lower court. While the findings of a master in a divorce proceeding are entitled to consideration by the court, "his findings have not the conclusiveness of those of an auditor or a master in chancery": Rommel v. Rommel, 87 Pa. Super. 511, 512. For a full discussion of this subject, also see the late cases of Nacrelli v. Nacrelli, 288 Pa. 1, 136 A. 228, affirming the decree ( 87 Pa. Super. 162) entered in that case by this court, and Langeland v. Langeland, 108 Pa. Super. 375, 164 A. 816. It is the duty not only of the lower court, but of this court, to consider all the evidence in the case and to determine independently whether the conclusion reached by the master is supported by such a preponderance of the evidence as the law requires.
The proper solution of the problem presented to us involves no new principles of law and does not require an extended discussion. After their marriage, the parties did not occupy a common abode as the libellant remained with his parents and the respondent continued to work. This arrangement was made, as the respondent alleged, because the libellant was afraid to tell his parents, and that in spite of the fact that he was of full age and had been married before. Three children were born of this marriage when some marital disputes arose, provoked, we believe, by the attentions of the libellant to a woman about ten years younger than this husband and wife. About this time the respondent, with the three small children and with the acquiescence of her husband, as she alleged, moved to Blackwood, N.J., where the husband visited her twice a week but continued his principal residence with his parents in Philadelphia. On October 15, 1926, the husband on going to the home in Blackwood found that his wife and children were gone. This, he claims, was a wilful and malicious desertion. Two weeks later he located the family within a square of the former abode. As the learned judge of the lower court stated, "the efforts to find her were ludicrous." On his own admissions, he visited her at the new home and in December of the same year moved the family to Philadelphia and installed them in a home. The wife denied that she had any intention of deserting her husband. The evidence is certainly not clear and satisfactory that the conduct of the wife in moving her home at Blackwood constituted a wilful and malicious desertion. If the wife's departure had been wholly inexcusable, this would not have justified the husband in refusing to receive her when she returned: Hardie v. Hardie, 162 Pa. 227, 230, 29 A. 886; Grove's Appeal, 37 Pa. 443. The situation is not different where the husband and wife resume their normal relations after a departure of the wife from the home.
As to the continuance of the desertion for the statutory period of two years the evidence of the husband is even weaker. He admitted frequent visits to her home, as he alleged for the purpose of seeing the children, while the wife testified that he visited her on an average of twice a week and had sexual intercourse with her until the year 1929 although he did not have a common abode with her after 1926. She also testified that she constantly urged her husband to leave his parents' home and spend his entire time with his family. There is not any direct corroboration of the evidence of either of the parties, while the attendant circumstances disclosed by the testimony of the parties themselves and other witnesses favored the wife rather than the husband. We, therefore, have a situation where the libellant depends almost exclusively upon his own testimony to prove a desertion by the respondent, while his evidence is denied by the wife who alleges that it was the fault of the libellant rather than the respondent that they did not occupy the same residence. "A decree may be supported by the testimony of the complainant alone, but if this testimony be contradicted and shaken by the respondent and there be no convincing circumstances warranting a disregard of the contradictory evidence, a case has not been made out": Rommel v. Rommel, supra, (p. 512). The lower court and all the members of this court, after an independent and careful examination of the testimony, are convinced that the evidence furnished by the libellant is not of the clear and satisfactory nature that is required to warrant the entering of a decree in divorce.
The order of the lower court dismissing the libel is affirmed.