Maurice Chaitkin, Brennan and Brennan, James H. Brennan, all of Pittsburgh, for appellant.
William J. Graham, Pittsburgh, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.
[ 169 Pa. Super. Page 486]
The husband, appellee, instituted this action in divorce a. v. m. charging appellant with willful and malicious desertion since July 29, 1946. The defense interposed was that appellant had reasonable cause for leaving. After hearing by a judge without a jury, the
[ 169 Pa. Super. Page 487]
court below entered a decree of divorce on the ground of desertion.
It is our duty to examine and analyze the record and determine whether the learned court reached a correct conclusion. The opinion of the court below, particularly as regards the credibility of the witnesses, is to be given the fullest consideration, as he has had the advantage of seeing the parties and hearing the testimony. Spence v. Spence, 167 Pa. Super. 248, 250, 74 A.2d 495; Hess v. Hess, 131 Pa. Super. 601, 604, 200 A.2d 157; Gerster v. Gerster, 166 Pa. Super. 105, 70 A.2d 429.
The parties were married on June 3, 1913, and until 1945 enjoyed a comparatively peaceful and happy marriage. On November 17, 1945, appellant left her husband for a four month period over a trivial incident involving a key to the husband's suit case. On March 25, 1946, a reconciliation was effected through the efforts of appellant's attorney. On July 4, 1946, shortly after the reconciliation, the parties took a vacation trip to California, and returned on July 20, 1946; appellant then left the common household on July 29, 1946. Appellant concedes that she left on that date and has not returned.
The husband charges that his wife deserted him on July 29, 1946. His testimony establishes that on the day before the desertion appellant told her husband: 'I won't make a home for you, I'm leaving'; that she took with her quantities of bed linens, table cloths, silverware and glassware, and appellee's gun. The following day appellee went to work and on his return found that his wife had left him.
Desertion which entitles an innocent and injured spouse to a divorce is 'an actual abandonment of matrimonial cohabitation, with an intent to desert, willfully and maliciously persisted in, without cause, ...