Opinion
December 14, 1932.
January 25, 1933.
Divorce — Desertion — Evidence — Sufficiency.
In a libel for divorce on the ground of desertion, the libellant's testimony disclosed that he and his female office assistant made a professional night call at a patient's home several miles from his office and that upon returning about midnight to the assistant's home the respondent met them and the two women had some disagreement. The libellant admitted that he and the assistant did not return immediately after making the professional call. Shortly thereafter the respondent removed her personal effects from their common abode and went to live with a relative. The libellant alleged that he called upon his wife but his testimony as to their conversation was denied and contradicted by the respondent. There was no evidence that he made any attempt to effect a reconciliation.
In such circumstances, where the libellant's evidence was denied and contradicted by the respondent, he failed to make out a clear and satisfactory case of wilful and malicious desertion and the decree of the court below dismissing the libel will be affirmed.
A decree in a divorce may be supported by the testimony of the libellant 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 is not made out.
Appeal No. 68 November T., 1932, by libellant from judgment of C.P., Schuylkill County, September T., 1930, No. 239, in the case of Thos. J. Shore v. Vennie Shore.
Before TREXLER P.J., KELLER, GAWTHROP, CUNNINGHAM, BALDRIGE, STADTFELD and PARKER, JJ. Affirmed.
Libel for divorce on the grounds of desertion. Before HOUCK, J.
The facts are stated in the opinion of the Superior Court.
The court referred the case to Guy Ellis Waltman, Esq., as master, who recommended a decree in divorce. 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.
M.M. Burke, and with him Joseph G. Seesholtz, for appellant.
Roscoe R. Koch, for appellee.
Argued December 14, 1932.
This is an action of divorce alleging desertion occurring on or about June 18, 1928. The parties reside in Pottsville. The libellant is a dentist. On June 19th, he had occasion to see a patient who resided about 9 miles from Pottsville. He took with him his office girl, and after he had left the patient's home about 10:20 P.M. instead of returning directly home he drove to Pinegrove and got to Pottsville a little before midnight. The office girl is not a trained nurse, but simply an office assistant. He admitted that this was not the first time he had his office assistant out with him in his automobile. When the latter alighted from the machine respondent met her and the two women had some disagreement. After the office girl left the machine, libellant went to his home and when he got there his wife was not there. He left again and was gone about fifteen minutes and does not know whether his wife was there during that time. The reason he left was because his office assistant, and her mother went to his apartment and requested him to accompany them to police headquarters for the purpose of instituting prosecution against respondent and he did accompany them for this purpose. He then remained in his apartment until July 6, 1928, and saw nothing of his wife during that period. His wife went to the home of her uncle in Pottsville. So far this seems to be an abandonment of their common domicile by both parties. As was said by Judge HOUCK, who wrote the opinion of the lower court: "The circumstances were calculated to call forth the conduct pursued by respondent and there is not a word in libellant's testimony that he made any attempt to effect a reconciliation. He testified that he went to the house where his wife was, to see her, and that he called her on the telephone. [What he says transpired on these occasions is contradicted by his wife.] Nowhere does he state that he urged her to return to him or that he intended to ask her to attempt to reconcile their differences." We again quote from the opinion of the lower court: "Under the circumstances presented it certainly was his duty to put forth some effort to bring about a reconciliation. This is not a case of a husband being deserted wilfully and maliciously, but it is a case which bears every earmark of a husband grown weary of the marriage bond seeking some excuse for its dissolution and well satisfied with the situation, which seems to offer the possibility of the desired freedom."
"Furthermore, libellant's testimony, denied and contradicted as it is by that of respondent, can not be regarded as creating more than a doubtful balance of the evidence. It fails to make out a clear and satisfactory case on which to rest the conclusion that there was a wilful and malicious desertion by the wife persisted in for two years. A decree may be supported by the testimony of the libellant 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 is not made out: McGowan v. McGowan, 98 Pa. Super. 194, 200. Libellant has failed to establish a wilful and malicious desertion." To this conclusion of the lower court we all assent.
The order is affirmed. Appellant to pay the costs.