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PROCOPIO v. PROCOPIO (11/11/53)

November 11, 1953

PROCOPIO
v.
PROCOPIO



COUNSEL

Raymond J. Porreca, Philadelphia, for appellant.

James Dessen, Philadelphia, for appellee.

Before Rhodes, P. J., and Hirt, Reno, Ross, Gunther and Wright, JJ.

Author: Ross

[ 174 Pa. Super. Page 157]

ROSS, Judge.

In this divorce action, brought by husband against wife on the ground of desertion, the master who heard

[ 174 Pa. Super. Page 158]

    the case recommended that a decree of divorce be granted, the court below granted the divorce, and the wife has appealed to this Court.

The parties to this action were married in Philadelphia on September 10, 1944. It was the second marriage for each, the plaintiff's first wife having died in 1931, and the defendant having been married to plaintiff's brother who died in 1934. At the time of the hearing the plaintiff was 64 years of age and the defendant 54 or 55. No children were born of this marriage. Plaintiff had three daughters of his first marriage and defendant also had three children by her first husband.

Before the marriage the plaintiff lived in a rented house at 1708 South 54th Street in Philadelphia with his daughters Catherine and Edith. After the marriage of plaintiff and defendant, Catherine married and moved out but Edith, whose husband was in the military service and overseas, remained. After the marriage the defendant came to the South 54th Street residence, bringing with her a daughter and a son. About the time of the marriage, plaintiff's daughter Catherine purchased the residence and thereafter the plaintiff paid to her a rental equal to 'the building and loan and necessary repairs'.

The plaintiff continues to live in the marital property and defendant admits that she left on July 11, 1949 and has never returned. Thus, having lived apart from her husband for the required statutory period, the burden was upon defendant to prove consent or a reasonable cause for her withdrawal from the matrimonial domicile. Mertz v. Mertz, 119 Pa. Super. 538, 180 A. 708; Sacks v. Sacks, 172 Pa. Super. 543, 94 A.2d 147. The 'reasonable cause' which is justification for husband or wife in quitting and abandoning the other, is that and only that which would

[ 174 Pa. Super. Page 159]

    entitle the separating party to a divorce. Boughter v. Boughter, 164 Pa. Super. 574, 67 A.2d 812; Darrall v. ...


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