Opinion
October 27, 1931.
December 11, 1931.
Divorce — Permissive separation — Bona fide attempt to secure a reconciliation — Absence of — Wilful and malicious desertion — Evidence.
In a libel in divorce on the ground of wilful and malicious desertion, there was evidence that the libellant and his wife separated and that the separation was a permissive one, consented to by the libellant, if not actually suggested by him. There was no testimony that after the separation the libellant made any real and bona fide attempt to secure a reconciliation and a resumption of the family relation.
In such case, where the libellant failed to establish by a clear and satisfactory preponderance of the evidence that the permissive separation was changed to a wilful and malicious desertion, the decree of the court below refusing the divorce will be affirmed.
Where husband and wife consent, in effect, to live separate and apart from each other, before either can allege a wilful and malicious desertion by the other he or she must first, in good faith, take some unequivocal step looking to a resumption of the family relation between them which is rejected by the other.
Appeal No. 407, October T., 1931, by libellant from decree of C.P., No. 5, Philadelphia County, June T., 1930, No. 13262, in the case of William Weisbrod v. Lillian Weisbrod.
Before TREXLER, P.J., KELLER, LINN, GAWTHROP, CUNNINGHAM and BALDRIGE, JJ. Affirmed.
Libel in divorce. Before LAMBERTON, J.
The facts are stated in the opinion of the Superior Court.
The case was referred to Thomas E. Waters, Esq., as master, who recommended that a decree in divorce be granted.
On exceptions to the master's report, the court sustained the exceptions, refused the divorce and dismissed the bill. Libellant appealed.
Error assigned, among others, was the decree of the court.
Morris Dos Passos, and with him J. Harry Wagner, Jr., for appellant.
William T. Connor, and with him John R.K. Scott, for appellee.
Argued October 27, 1931.
The husband brought this action in divorce alleging wilful and malicious desertion. The master filed a report recommending a divorce, but the court below on consideration of the evidence, disagreed with the master, refused the divorce and dismissed the bill.
Our review of the evidence leads us to agree with the court below that the appellant has not established the desertion of the respondent by that clear and satisfactory preponderance of the testimony which the law requires; that the separation which took place in 1916 was rather a permissive one, consented to by the libellant, if not actually suggested by him; and that having been originally of that character it never changed to a wilful and malicious desertion because the libellant never made any real and bona fide attempt thereafter to secure a reconciliation and a resumption of the family relation.
Where husband and wife consent, in effect, to live separate and apart from each other, before either can allege a wilful and malicious desertion by the other he or she must first, in good faith, take some unequivocal step looking to a resumption of the family relation between them which is rejected by the other. This is wholly lacking in the present case.
A summary of the evidence would serve no useful purpose.
The assignments of error are overruled and the decree is affirmed at the costs of the appellant.