Opinion
March 15, 1933.
July 14, 1933.
Divorce — Desertion — Wife leaving common home under duress — Abandonment of home by husband — Decree.
In a libel for divorce on the ground of desertion, the libellant's testimony showed that her husband had compelled her to leave their home on two occasions but that she returned at his request. She testified that subsequently he choked her and again commanded her to leave the home. The libellant immediately returned to the home of her parents and the respondent, on the next day, abandoned their common home and removed the furniture. The libellant and respondent lived separate and apart for more than two years and the respondent at no time made an offer in good faith to resume relations with her, or afford her a place in which they could live together.
In such case the libellant proved the fact alleged in her libel that the respondent wilfully, maliciously and without reasonable cause, deserted her and absented himself from their habitation and the decree of the court below dismissing the libel will be reversed.
Where a wife leaves a common home under dire compulsion and the husband abandons the home, he initiated a desertion for which, if persisted in, the wife could obtain a divorce.
Appeal No. 125, October T., 1933, by libellant from decree of C.P., Schuylkill County, March T., 1931, No. 242, in the case of Beatrice Krebs v. Douglas W. Krebs.
Before TREXLER, P.J., KELLER, CUNNINGHAM, BALDRIGE, STADTFELD, PARKER and JAMES, JJ. Reversed.
Libel for divorce on the ground of desertion. Before PALMER, J.
The facts are stated in the opinion of the Superior Court.
The case was referred to LeRoy Enterline, 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.
Arthur L. Shay, for appellant, cited: Young v. Young, 82 Pa. Super. 492; Hess v. Hess, 105 Pa. Super. 596.
No appearance and no printed brief for appellee.
Argued March 15, 1933.
This is a suit in divorce, the grounds being desertion on the part of the husband. The parties were married in 1929. On two separate occasions the husband ordered his wife out of the house and compelled her to leave, but on each occasion her absence was but temporary and she came back to their common domicile at his request. On June 19, 1930 he choked his wife, who was suffering from an internal goitre, so violently as to leave marks on her neck and cause intense pain. The next day upon visiting the doctor the throat was very much inflamed. This was not the first time he used violence, but on several previous occasions he had struck her. His last attack was accompanied by the command that she should leave the home. The wife, thereupon, went to the home of her parents. The very next day, "the husband broke up the house," removed the furniture and went to live with his mother and has not communicated with his wife nor made any effort to provide a common home for himself and her.
The master recommended a decree in her favor, but the lower court refused to grant the divorce relying on the case of Young v. Young, 82 Pa. Super. 492. We do not think, however, that that case rules the present. The facts there were that the husband, the libellant, abandoned his home and the wife remained there. His leaving he ascribed to a culmination of a series of unpleasantness in my life. This court then held that as long as the wife remained at the habitation and kept the domicile flag flying, she was not subject to the charge of desertion whatever other adequate provocation she may have given to her husband to sustain the libel in divorce; that the husband had a specific remedy provided by law for cruelty on the part of his wife or from her conduct amounting to indignities to the person and to these provisions of the divorce law he must appeal if he would have relief. In the present case the wife left the joint home under dire compulsion. It was to escape a present evil. It was in no sense of the word a desertion by her. Toogood v. Toogood, 92 Pa. Super. 603. He could not obtain a divorce from her on account of her absenting herself from what, in law, was still their common habitation. When under these circumstances, she not having deserted him, he destroyed their common home by abandoning it and removing the furniture, he initiated a desertion for which, if persisted in, she could obtain a divorce. He could not prevent the running of the period of absence, provided by law, by destroying the home, and his desertion was continued as long as he would not offer in good faith to resume relations with her, or afford her a place in which they could live together. We think the wife has proved the fact alleged in her libel that he wilfully, maliciously and without reasonable cause, deserted the libellant and absented himself from their habitation.
The order of the lower court dismissing the libel is reversed and the record is remitted with instructions to the lower court to enter a decree of divorce. Appellee to pay the costs.