Anthony Cavalcante, Uniontown, for appellant.
Maxwell E. Lizza, Uniontown, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.
[ 171 Pa. Super. Page 71]
In this divorce action the master recommended that a divorce be granted to the libellant husband on the ground of desertion. The Court of Common Pleas of Fayette County, sitting in banc, dismissed respondent's exceptions to the master's report and entered a decree in divorce, and respondent wife has appealed.
Appellant bases her appeal on the ground that libellant has failed to establish a desertion within the meaning of section 10 as amended of the Act of May 2, 1929, P.L. 1237, 23 P.S. § 10, which requires 'wilful and malicious desertion, and absence from the habitation of the injured and innocent spouse, without a reasonable cause, for and during the term and space of two years'.
The parties were married on September 2, 1943, at which time libellant was 53 years old and respondent 42. Libellant had been a widower and was the father of five children, none of whom resided with the parties, but two grown daughters, working in Pittsburgh, spent every other weekend at the home. Libellant was a mine foreman and left his home to go to work at one o'clock every day of the week and worked until midnight. Previous to her marriage to libellant, respondent had resided with an aunt next to the home of her mother, about a mile away from the home of the parties, in rural Fayette County. Her mother was in ill health, so from the very beginning of her marriage respondent formed the habit of going to visit her daily. She left the marital residence sometime after libellant's departure for work and returned with libellant, who would have the driver of the car, with whom he and
[ 171 Pa. Super. Page 72]
other men were returning home, stop at the mother's home to pick her up.
There is evidence of friction between step-mother and step-daughters over the arrangement of household articles, but the real source of marital difficulties seems to have stemmed from respondent's daily visits to her mother and her transportation home at night. Libellant testified that he approved of respondent's visits to her mother 'twice a week but not every day', but that he objected seriously to being subjected to the embarrassment of having the other workmen wait every night until his wife boarded the car at her mother's home and to her crowding the other passengers, and that he told her he 'wouldn't pick her up anymore'. Respondent insisted she was afraid to stay at the home of the parties in the evening and persisted in the daily routine. On a night in October 1944 libellant instructed his driver to pass by, leaving respondent at her mother's home all night. When she returned home the next morning she was admitted by libellant and an altercation ensued, after which libellant left for his work and respondent went back to her mother's home. Libellant again did not stop for her a second time, and again she returned home in the morning. On this occasion she did not find the key to the back door at its usual place in the ice box on the back porch. She came back to the house every day during the succeeding week or ten days only to find herself without a key and 'locked out'. Respondent then instituted desertion and nonsupport proceedings against libellant, which action the presiding judge, by order of November 24, 1944, continued for thirty days to give the parties time for reconciliation, which latter, however, failed to materialize. Respondent brought a second action and the court, on December 29, 1944, entered an order on libellant to pay respondent $60 a month for her support. Subsequently, accompanied by a constable, her sister
[ 171 Pa. Super. Page 73]
and a woman friend, respondent returned to the marital home long enough to pick up her ...