Opinion
March 6, 1935.
April 15, 1935.
Divorce — Desertion — Refusal of wife to live at home of relatives — Intention to desert — Evidence.
1. A wife is not chargeable with desertion because of her refusal, in good faith, to live at the home of her husband's parents, where she has not been well treated.
2. The right which the husband exercises in determining the place of abode is not to be used arbitrarily; he must have due regard for the comfort, welfare and peace of mind of his wife.
3. To justify a decree in divorce on the ground of desertion there must be a clear intention to desert, wilfully and maliciously persisted in without cause for a period of two years.
4. Evidence in divorce action held not sufficient to clearly establish a wilful and malicious desertion, without reasonable cause, on the part of the wife, respondent, in refusing to live with her husband in the unoccupied portion of a "two family house" in which libellant's parents resided.
Appeal No. 47, February T., 1935, by libellant from decree of C.P., Luzerne County, March T., 1933, No. 542, in the case of Alfred Roy Rood v. Frances Harrison Rood.
Before KELLER, P.J., CUNNINGHAM, BALDRIGE, STADTFELD, PARKER, JAMES and RHODES, JJ. Affirmed.
Libel for divorce.
The facts are stated in the opinion of the lower court, VALENTINE, J., as follows:
This is a libel in divorce by husband against wife. The charge is that respondent on January 13, 1931, wilfully and maliciously deserted libellant.
The parties were married October 29, 1930. After their marriage they lived at the home of libellant's parents but respondent, with the approval of libellant, at various times returned to the home of her parents five miles distant for a period of from one to two weeks. The house in which the parents of the libellant resided is described as a "two family house." One roof covers the entire building. It contains a total of eleven rooms, six of which were occupied by the parents of the libellant; the five rooms comprising the other portion of the house, viz., kitchen, pantry, bedroom, dining room and upstairs room were not occupied. A door leads from this side or portion of the house to that occupied by libellant's parents. The furniture in the portion of the house that was unoccupied consisted of kitchen chairs, cupboard, kitchen table, kitchen stove, six dining chairs, cupboard, dining room table, bed, bureau and two or three bedroom chairs. During the time libellant and respondent lived with the former's parents they ate at the parents table. Immediately after their marriage they occupied the downstairs bedroom in the portion of the house which was not used by libellant's parents but when the weather became cold they moved to a bedroom on the parents side or portion of the house.
On January 12, 1931, respondent visited her parents' home, in the evening libellant called at the home of her parents and respondent suggested that if he would stay for supper she would accompany him home. Libellant's mother expected libellant home for supper but as he and the respondent had supper at the home of the latter's parents, they arrived at the Rood home several hours later. Respondent testified that upon her arrival, libellant's mother, who was worried about libellant's failure to return, called her a "dirty little bitch." This was denied by the mother but it is conceded that immediately upon retiring for the night, respondent complained to libellant that his mother had called her this name, and that respondent wept a considerable portion of the night. In the morning respondent asserted she would no longer live in the home of libellant's parents, and libellant in order to prevent her from walking to her parents' home, took her there in his automobile. Respondent testified that she loved libellant and will live with him in any place other than the home occupied by his parents. Libellant replied that he is working on his father's farm and must live at the place, and insists that respondent move in the unoccupied portion of the house. This summarizes the sole controversy between the parties.
The duty of a wife to live with her husband at such reasonable place which he can, according to his means, provide as a home is undoubted, MacDonald v. MacDonald, 108 Pa. Super. 80, but the right which the husband exercises in determining the place of abode is not to be used arbitrarily. He must have due regard for the comfort, welfare and peace of mind of his wife, 9 R.C.L., page 365, Sec. 151. To justify a decree in divorce on the ground of desertion there must be a clear intention to desert, wilfully and maliciously persisted in without cause for a period of two years. Circumstances may rebut the intention to desert which arises from the refusal of the wife to live at the abode furnished by the husband. Horn v. Horn, 17 Pa. Super. 486 -89; McBrien v. McBrien, 63 Pa. Super. 576-579.
By reason of this principle it has been held in a well recognized line of cases in this State that a wife is not chargeable with desertion because of her refusal to live at the home of her husband's relatives, especially where living there causes her discomfort or displeasure. Reynolds v. Reynolds, 62 Pa. Super. 280; Isenberg v. Isenberg, 75 Pa. Super. 551; Benscoter v. Benscoter, 20 Dist. 349; LeGrand v. LeGrand, 24 Dist. 244; Brous v. Brous, 5 Pa. D. C. 303; Wolf v. Wolf, 27 Luz. 360; Upton v. Upton, 27 Luz. 404.
Libellant's counsel has stressed his contention that because the husband's employment is on the father's farm, the husband's demand that the respondent live with him in the unoccupied portion of the parents' home is reasonable. The husband's employment is that of a laborer. His compensation consists in a share of the crops raised. He has declined to seek employment elsewhere. He also refused to rent a small house nearby, asserting that it was unfit for occupancy, although respondent requested him to rent the house and desired to live with him therein.
A careful analysis of the entire testimony does not convince us that the libellant has presented such a clear and satisfactory case that entitles him to a decree. Hess v. Hess, 105 Pa. Super. 596.
Libel dismissed. Libellant appealed.
Error assigned was dismissal of libel.
Henry Greenwald, and with him Thomas M. Lewis, for appellant.
Frank A. McGuigan, and with him Frank W. McGuigan, for appellee.
Argued March 6, 1935.
This was an action of divorce brought by a husband against his wife, on the ground of wilful and malicious desertion.
The court below refused to enter a decree of divorce, and dismissed the libel, for the reason that the evidence did not clearly establish a wilful and malicious desertion, without reasonable cause, on the part of the wife, respondent. The reasons for its action are convincingly stated in the opinion by Judge VALENTINE. We have read the evidence carefully and agree with the findings and conclusions of the learned judge of the court below. On his opinion, the decree is affirmed at the costs of the appellant.