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DOUGHERTY v. DOUGHERTY (01/12/50)

January 12, 1950

DOUGHERTY
v.
DOUGHERTY



COUNSEL

Irving W. Coleman, Jerome W. Burkepile, Jr., Northhampton, Albert H. Haimbach, Mauch Chunk, for appellant.

Frank X. York, Mauch Chunk, for appellee.

Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, and Fine, JJ.

Author: Ross

[ 166 Pa. Super. Page 220]

ROSS, Judge.

In this action brought by a husband for a divorce on the ground of desertion, the master who heard the case recommended that the divorce be granted. Exceptions to his report were dismissed and a decree in divorce entered by the court below, and the wife took this appeal.

The libel was filed on September 24, 1947. The parties were married on April 8, 1917 and resided together until January 11, 1932, when the wife left the common abode, taking with her the five children born

[ 166 Pa. Super. Page 221]

    to the couple. It is admitted that she has not returned to the residence of her husband, that she has never offered to return to it or to resume marital relations and that she has made no overtures for reconciliation.

'In actions for divorce on the ground of desertion it is not necessary ordinarily to prove actual malice. 'If the desertion is intentional, it is willful. If willful, malicious.' Hedderson v. Hedderson, 35 Pa. Super. 629, 631; Ogram v. Ogram, 162 Pa. Super. 266, 268, 57 A.2d 577. Malice may be inferred from the circumstances, and is presumed where the other elements appear.' Rebar v. Rebar, 165 Pa. Super. 341, 67 A.2d 598, 599.

There having been admittedly a separation for the required statutory period, the burden was on the respondent to prove consent or a reasonable cause for her withdrawing from the matrimonial domicile. Mertz v. Mertz, 119 Pa. Super. 538, 180 A. 708. She does not contend that the separation was consentable but contends that she had reasonable cause for leaving the common habitation. The 'reasonable cause' which is justification for husband or wife in quitting and abandoning the other, is that and only that which would entitle the separating party to a divorce. Thomas v. Thomas, 133 Pa. Super. 12, 14, 1 A.2d 686; Darrall v. Darrall, 164 Pa. Super. 113, 63 A.2d 693; Boughter v. Boughter, 164 Pa. Super. 574, 67 A.2d 812.

As the basis for her leaving the home, the respondent testified that the libellant was unduly friendly with a Mrs. Fronheiser, that he had an 'ungovernable temper, he didn't know how to correct the children, he used every method but the right method'; that he called her and the children names, and finally that she left on January 11, 1932 because there was no fuel or food in the house. ...


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