Opinion
April 28, 1955.
June 27, 1955.
Divorce — Desertion — Constructive desertion — Eviction of innocent spouse from home — The Divorce Law.
1. Where a spouse seeks a divorce upon the ground of desertion and seeks to prove desertion resulting from being evicted from the common abode by the other spouse he must show that he was wilfully and maliciously put out by force or justifiable fear of immediate bodily harm or was locked out against his will and without his consent and such conduct was without reasonable cause and was persisted in for two years. [322-3]
2. In this action of divorce brought by a husband in which it appeared that the parties quarreled at home, that the wife then ordered the husband to leave the house and threw his clothes at him, and was backed up in this action by several of their adult sons, whereupon the husband left the house and made several later offers to return which the wife refused, it was Held that the evidence did not establish a desertion by the wife within the meaning of The Divorce Law of 1929, P. L. 1237, § 10(d). [320-3]
Mr. Justice MUSMANNO dissented.
Before STERN, C. J., STEARNE, JONES, BELL, MUSMANNO, and ARNOLD, JJ.
Appeal, No. 115, March T., 1955, from order of the Superior Court of Pennsylvania, April T., 1954, No. 135, in case of Aloysius A. Zorn v. Stella M. Zorn. Order reversed.
Same case in Superior Court: 177 Pa. Super. 219.
Divorce proceeding.
Report of master filed recommending decree of divorce on the ground of desertion; exceptions to master's report sustained and order entered dismissing bill before THOMPSON, SOFFEL and MONTGOMERY, JJ., opinion by MONTGOMERY, J. Plaintiff appealed to the Superior Court, which reversed the decree of the court below; WRIGHT, J., filed a dissenting opinion in which RHODES, P. J., concurred. Appeal by defendant to Supreme Court allowed.
Clyde P. Bailey, with him Weller, Wicks Wallace, for appellant.
Harry S. Kalson, for appellee.
This appeal is from an order by the Superior Court, two Judges dissenting, directing the lower court to enter a decree of absolute divorce. Defendant, the wife, was charged with constructive desertion. The master recommended a divorce. The Court of Common Pleas rejected this recommendation and dismissed the complaint. The Superior Court reversed.
Judge GUNTHER, in the majority opinion of the Superior Court, accurately states the facts: "Plaintiff testified that on March 18, 1948, he came home very late from a business appointment and became engaged in a quarrel with his wife; that she ordered him to leave the house and threw his clothes at him; that she was `backed up' by several of their adult sons; that he thereupon left the house; and that he made several later offers to return, but was refused by defendant. Plaintiff's witness, who had known both parties for years and who had lived in their home, testified that in 1951 and again in 1952 the defendant told him that plaintiff offered to return to her but she didn't want him back."
In the court of common pleas the opinion writer states with considerable force: ". . . the evidence to us seems strongly and abundantly in favor of the Defendant. . . ." It is, of course, true that in divorce litigation courts are not bound by conclusions of a master as to credibility: Oliver v. Oliver, 172 Pa. Super. 600, 94 A.2d 124, and cases therein cited. While the court of common pleas concluded not to disturb the findings of fact, it reversed upon the ground that the plaintiff's evidence did not support a decree of divorce on the ground of desertion. With this we agree.
Judge ARNOLD (now Mr. Justice ARNOLD of this Court) in Reiter v. Reiter, 159 Pa. Super. 344, 48 A.2d 66, speaking for a unanimous court, decided that where a spouse is wilfully and maliciously put out by force or justifiable fear of immediate bodily harm, or is locked out against his or her will, and without his or her consent, and such conduct is without reasonable cause, and persisted in for two years, there is a desertion in the words of the statute. He said (p. 348):
"The Divorce Law of 1929 ( 23 P. S. § 1 et seq.) defines the causes for divorce, and in subsection (d) of § 10 provides: `(d) [Where the other spouse] shall have committed wilful and malicious desertion, and absence from the habitation of the injured and innocent spouse, without a reasonable cause, for and during the term and space of two years.'
"(1). Where a husband purposely locks out, or bars, his wife from the common habitation, her habitation is no longer his home, but is the street or the place to which she goes, and the husband has deserted her and absented himself from her habitation which he forced her to obtain by destroying for her the common abode. If wilful and malicious, and without reasonable cause, and persisted in for two years, it is a desertion in the words of the statute.
"(2). So, too, where a husband physically ejects his wife from the common home.
"(3). So, also, where a husband threatens immediately to inflict bodily harm on his wife unless she leaves, and she departs against her will and because of a justifiable fear of physical injury.
"These are rules for guidance and must not be read as an act of assembly or a contract. They are neither invariable, exclusive nor without exception. They are, of course, as applicable to the acts of the wife as they are to those of the husband. They are formulated from such cases as Howe v. Howe, 16 Pa. Super. 193, 198, in which the Court said: `When the wife is obliged by the cruelty or violence of her husband to leave him for safety and to avoid personal injury, her compulsory flight amounts to desertion by him'; Krebs v. Krebs, 109 Pa. Super. 175, 167 A. 249 (distinguishing Young v. Young, 82 Pa. Super. 492); and the carefully considered opinions of Judge REESE and Judge SHEELY respectively, in Barnes v. Barnes, 21 Pa. D. C. 101; Pierce v. Pierce, 36 Pa. D. C. 420." He also said, which is of peculiar application here (p. 349): "In the type of desertion now discussed the libellant must be wilfully and maliciously put out by force or justifiable fear of immediate bodily harm, or locked out against the will, and without the consent, of the innocent spouse." In Heimovitz v. Heimovitz, 161 Pa. Super. 522, 55 A.2d 575, the wife evicted the husband and effectively locked him out and thereby accomplished a wilful and malicious exclusion from the domicil. The opinion cited with approval Reiter v. Reiter, supra, and quoted extensively from that opinion. In Scanga v. Scanga, 167 Pa. Super. 133, 74 A.2d 723, a husband sought a divorce on the ground of desertion because his wife left his bed and slept in another room with her daughter, after which the husband left home and never returned. The Superior Court, in ruling that there was no desertion, cited with approval (p. 136) the decisions in Reiter v. Reiter and Heimovitz v. Heimovitz that complainant " `. . . must be wilfully and maliciously put out [ of the home] by force or justifiable fear of immediate bodily harm, or locked out against the will, and without the consent, of the innocent spouse.' " See also Freedman, Marriage and Divorce, section 243.
We agree with the learned court below, and with the Judges who dissented in the Superior Court, that plaintiff was not an innocent spouse, and that the conduct of defendant and her sons did not constitute a forcible eviction of plaintiff from the home, nor did it put plaintiff in justifiable fear of immediate bodily harm or of his being locked out against his will and without his consent.
The order of the Superior Court is reversed, the order of the Court of Common Pleas is reinstated, and the complaint in divorce is dismissed at the cost of plaintiff.
Mr. Justice MUSMANNO dissents.