O. J. Tallman of Tallman & Walker, Allentown, for appellant.
Henry L. Snyder of Snyder, Wert & Wilcox, Allentown, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross and Gunther, JJ.
[ 172 Pa. Super. Page 545]
In this divorce action, brought on the ground of desertion by a 69 year-old husband against his 56 year-old wife, the master who hear the case recommended that a decree of divorce be granted, the court below dismissed the wife's exceptions and granted the divorce, and the wife has appealed to this Court.
The marriage of the parties, the second for each, took place in Allentown on December 27, 1927. They established residence in their newly-built home at 1850 Chew Street in Allentown, where they lived with plaintiff's elderly mother and his son and daughter by a previous marriage. After a year marital troubles arose and in 1932 defendant, after finding a note addressed to the plaintiff, apparently from another woman and stating times when she was free to see him, left the home and went to Philadelphia, where she procured employment. After a period of separation of approximately a year a reconciliation was effected and defendant returned to the home, where she lived with plaintiff until the date of final separation, July 31, 1947.
Plaintiff was engaged in the business of selling coal and stoves and served for four years as councilman of the city of Allentown. In autumn of 1946 he developed a heart condition and cerebral disturbance which affected his right eye, the right side of his face and his hearing, and which prevented active participation in his business for several months. At the time of the hearings he remained under the care of his physician, his health had been restored only partially, and he was still unable to take charge of his business affairs as previously.
[ 172 Pa. Super. Page 546]
Defendant prior to the marriage agreed to have plaintiff's mother and children live with the parties. She had had no children by her previous marriage and seems to have been fond of plaintiff's children but found her mother-in-law difficult at times. When her parents died, defendant in 1941 inherited a sum of money. Sometime thereafter in 1944 or 1945, she began to make definite plans to build a home in the country. She testified that she determined to procure plans 'about two years, three years' before she left the Chew Street residence. She gradually assembled articles of furniture and furnishings for the proposed home, which she stored in a third floor room. Plaintiff's son and daughter in the meantime had both married and moved to homes of their own. Defendant informed plaintiff that she had purchased a tract of land on the outskirts of Allentown as the site of the 'dream house' (so characterized according to the testimony of her daughter-in-law, Jane Sacks), and at her request plaintiff accompanied her to see it. Plaintiff testified that he knew nothing of the purchase of the land until that time. Plaintiff objected to living in the country, according to his testimony, 'but I couldn't stop her. I said she was foolish because, after all, she helped to select the building and helped to lay it out where we lived at, and we only lived twenty years there, and I don't think it's an old-fashioned home.' Plaintiff's son and daughter testified that their father had suggested that their stepmother remodel the home they then occupied rather than spend money for a new house. However, defendant proceeded to have the house constructed and when it was completed she received an offer from a prospective purchaser. Plaintiff suggested that she sell it but she retained it, and on July 31, 1947 moved into it. Plaintiff was at home during lunchtime when the moving van arrived but at that time
[ 172 Pa. Super. Page 547]
made no effort to prevent the moving or persuade defendant to remain.
Our Divorce Law, Act of May 2, 1929, P.L. 1237, § 10 as amended, 23 P.S. § 10, provides that an innocent and injured spouse may secure a divorce whenever it shall be judged that the other spouse 'Shall have committed 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 * * *.' That defendant intended to remove from the matrimonial domicile is crystal clear. Having lived apart from her husband for the required statutory period, the burden was upon her to prove consent or a reasonable cause for her withdrawal from the matrimonial domicile. Mertz v. Mertz, 119 Pa. Super. 538, 180 A. 708. Defendant has based her defense on both these grounds. She contends that the separation was consensual because plaintiff at the time of actual moving failed to plead with her to remain. However, 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. Hochberg v. Hochberg, 166 Pa. Super. 306, 70 A.2d 864. Perhaps in an effort to qualify under this latter head, defendant points to plaintiff's gift to her ...