Clyde P. Bailey, Dane Critchfield, Pittsburgh, for appellant.
William H. Colvin, Pritchard, Lawler, Malone & Geltz, Pittsburgh, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross and Arnold, JJ.
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The husband sued for a divorce alleging cruelty and indignities, and by an amendment the charge of desertion was added. At the hearing before a judge without a jury only the charge of desertion was pressed. A divorce was granted upon that ground.
The wife appealed and, after the expiration of the term and after he had notice of the appeal, the hearing judge vacated the decree. Later, on November 21, 1949, he entered an order refusing a decree and dismissing the complaint. In the opinion accompanying the order he explained his action: 'After hearing the case, counsel
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was called into chambers and told that we would not be willing to grant a divorce, but inasmuch as the parties were so hopelessly estranged we would grant a divorce if he made a satisfactory settlement with his wife. Later, counsel for libellant said he had the money to make a settlement, and we signed a decree thinking a settlement had been made. When it was found that the settlement was refused the court revoked the decree. The court was more impressed with the testimony and the conduct of the respondent than [that of] the libellant and we therefore refuse the divorce.' Upon the husband's petition for a writ of prohibition, this Court annulled the order and decree entered after the filing of the appeal, leaving in force only the original decree granting the divorce.
While the judge obviously exceeded his powers there is no occasion to question his motives. The parties are indeed estranged beyond all hope of reconciliation and, since they are holding property jointly, future litigation could have been avoided by an amicable settlement. However, when he determined that the husband's case was without merit, he should have refused the decree. Our independent study of the testimony has induced the conclusion that the hearing judge's initial decision was correct, and the decree brought up by this appeal will be reversed.
The husband charges that his wife deserted him on June 28, 1946. On that date they were living together in their common abode. Admittedly on that date she left his bed and thereafter slept in another room with a daughter until July 9, 1946, when he left the home and never returned. He sought to bring himself within Reiter v. Reiter, 159 Pa. Super. 344, 349, 48 A.2d 66, 69, where Judge Arnold, speaking for this Court, after an illuminating discussion of the principles relating to what had been loosely called 'constructive desertion', concluded: 'In the type of desertion now discussed the
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libellant 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 Heimovitz v. Heimovitz, 161 ...