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HOCHBERG v. HOCHBERG (01/12/50)

January 12, 1950

HOCHBERG
v.
HOCHBERG



COUNSEL

Leonard M. S. Morris, Pittsburgh, Wm. M. Kahanowitz, Greensburg, for appellant.

C. Ward Eicher, Greensburg, for appellee.

Before Rhodes, P. J. and Reno, Dithrich, Ross and Arnold, JJ.

Author: Fine

[ 166 Pa. Super. Page 307]

FINE, Judge.

In this divorce action, brought by the husband on the ground of desertion, the master who heard the case recommended a decree in divorce and the court below dismissed the wife's exceptions and granted the divorce. From our consideration of the evidence we find ourselves in agreement with the master and the lower court. The decree will be affirmed.

The parties were married on January 26, 1919, and resided together in Greensburg until June 13, 1933, when, while the husband was at his jewelry store, and

[ 166 Pa. Super. Page 308]

    without any notice, hint or intimation to him of her intention, the wife left the marital home, taking with her their three children. The wife had left the libellant on two previous occasions. At the last separation she sold part of the furniture, -- a parlor suite, -- to a neighbor, left some pieces of furniture for her husband and moved the remainder to a Pittsburgh residence, hurriedly secured for her by her brother or other member of her own family. That the respondent intended to leave and live apart from the libellant is crystal clear.

The withdrawal by the wife from the common domicile and the cessation of marital relations imposed upon her the burden of proof to establish by the preponderance of evidence facts that would entitle her to a decree in divorce (Rosa v. Rosa, 95 Pa. Super. 415) or that the separation was by consent. There is no persuasive or convincing evidence in the record upon which to predicate libellant's consent to the separation before or at the time of the departure, or within two years thereafter. Mere silence or lack of appeasement on the part of the husband cannot be construed as consent to the separation. The applicable law is stated in Ewing v. Ewing, 140 Ps.Super. 448, 452, 14 A.2d 149, 151: 'Mere silence does not establish consent. The respondent having withdrawn from the home it was not incumbent upon the libellant to seek a reconciliation nor to ask the wife to return. To the contrary it is the duty of a deserting wife to seek an appeasement and until this has been done consent to the separation is not established. Ward v. Ward, 117 Pa. Super. 125, 177 A. 515; Thomas v. Thomas, supra [133 Pa. Super. 12, 1 A.2d 686]; Wilhelm v. Wilhelm, 130 Pa. Super. 143, 197 A. 496.' Silent acquiescence is not consent; such negative evidence does not satisfy the legal requirement that there must be proof of some affirmative conduct amounting to participation in the separation.

[ 166 Pa. Super. Page 309]

Assuming the libellant on occasions urged his wife to leave their home, it is apparent she considered such statements meaningless. Cf. Ogram v. Ogram, 162 Pa. Super. 266, 268, 57 A.2d 577. If made, those statements did not initiate the separation nor have the slightest effect on its consummation. It is manifest financial difficulties spawned the marital troubles of this couple and motivated their separation. As stated by the master: '* * * a great part of the respondent's grievance against her husband seems to be based upon his failure to provide for her in a financial way. Her testimony is shot through and through with references to libellant's not providing enough food or means for his wife and family; she asserts that they never had enough and that her husband would contribute nothing. As far as this testimony applies to the period for several years preceding the separation in 1933, judicial notice can be taken of the fact that that period covered the depths of the great depression. This factor, coupled with the fact shown in the testimony that in 1933 the libellant went through bankruptcy in his business and that he also suffered a nervous breakdown, leads to the conclusion that a scarcity of cash and means of support and maintenance in the home were not the result of the meanness or parsimoniousness of the husband and father, but were caused by forces of misfortune and disaster beyond his control.' See Strobel v. Strobel, 100 Pa. Super. 536, 538; Ussler v. Ussler, 158 Pa. Super. 215, 216, 44 A.2d 526.

The respondent has utterly failed to adduce sufficient evidence of the quality necessary to carry her burden of showing consent subsequent to the separation. Her alleged offer of reconciliation, couched in the following reproachful language: 'What are you willing to do -- go back? I can't eat the bricks in the house,' lacked good faith, portrayed ...


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