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ANDERSON v. ANDERSON (01/20/53)

January 20, 1953

ANDERSON
v.
ANDERSON



COUNSEL

Albert G. Driver, Philadelphia, for appellant.

Allen J. Levin, Sundheim, Folz, Kamsler & Goodis, Philadelphia, for appellee.

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

Author: Ross

[ 172 Pa. Super. Page 528]

ROSS, Judge.

In this divorce action, brought by the husband on the ground of indignities to his person, the master who heard the case recommended a divorce, the court below dismissed the wife's exceptions to the master's report, and she has appealed to this Court.

The parties are natives of New Jersey and were married in Camden on December 1, 1946, where plaintiff secured employment. After the marriage they moved into the home of defendant's parents in Camden. During the first year friction developed between defendant and her father because of the latter's habit of drinking excessively, and frequent arguments ensued between them, many of them at the dinner table. Defendant's brother and sister-in-law were for a time

[ 172 Pa. Super. Page 529]

    members of the household and were often involved in the dinner table arguments. Aside from the defendant's conduct toward the plaintiff, which will be discussed later, it is evident that the family atmosphere was, to state it mildly, most unpleasant for the plaintiff. In April 1950 he left the Camden home and moved into the Y.M.C.A. in Philadelphia, becoming a permanent guest, and has since then lived there continuously except for a period of three weeks when he was a medical patient at the Philadelphia Naval Hospital. After the separation plaintiff continued to work in Camden until he was able to secure employment with the Budd Company in Philadelphia, where he is presently employed.

Primarily, the appellant -- as she did in her answer to the complaint and in the court below -- questions the jurisdiction of the court to entertain this action, contending that the plaintiff was not a bona fide resident of Pennsylvania for a period of at least one year prior to the date of filing his complaint, as required by section 16 of the Act of May 2, 1929, P.L. 1237, 23 P.S. § 16. The complaint was filed on September 4, 1951.

As the basis of her contention that the plaintiff did not meet the necessary residence requirement, defendant points to the fact that he filed his Federal income tax returns for 1950 and 1951 in New Jersey, that he holds an operator's license and registration plates for his automobile from New Jersey, and that he has filed no Philadelphia wage tax. These are circumstances to be considered but they are not controlling. It is undisputed that since the separation in April 1950 plaintiff has maintained continuous residence in the Y.M.C.A. in Philadelphia. Furthermore, the master made independent inquiry and found plaintiff's residence to be as stated in the complaint, and as in Wiggins v. Wiggins, 171 Pa. Super. 298, 90 A.2d 275,

[ 172 Pa. Super. Page 530]

    the plaintiff's presence at his claimed residence when the master called is an important factor in the proof of such residence. The proof of change of a domicile does not depend upon any particular fact but upon whether all the facts taken together tend to establish a new, fixed and permanent residence. Verbeck v. Verbeck, 160 Pa. Super. 515, 52 A.2d 241. We agree with the learned court below that 'An examination of the record in this case, in our opinion establishes the necessary domiciliary intent and the fact that plaintiff was a 'bona fide resident' of ...


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