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TOTINO v. TOTINO (07/13/54)

July 13, 1954

TOTINO
v.
TOTINO



COUNSEL

Eugene A. Caputo, Ambridge, for appellant.

Norman S. Faulk, Beaver, for appellee.

Before Hirt, Acting P. J., and Ross, Gunther, Wright, Woodside and Ervin, JJ.

Author: Wright

[ 176 Pa. Super. Page 109]

WRIGHT, Judge.

Frank A. Totino instituted an action in divorce a.v.m. against his wife, Clara Totino, on the ground of desertion. The master recommended a decree. The court below sustained exceptions filed by the wife, and dismissed the complaint. The husband has appealed.

[ 176 Pa. Super. Page 110]

The parties were married on September 4, 1930. Each is now forty-three years of age. Until the date of the separation their residence was in Hillsville, Lawrence County. With them lived appellant's father. In 1942, appellant obtained work with the A. M. Byers Company in Ambridge, Beaver County, about 45 miles from Hillsville. Because of the distance, he did not commute daily between his home and his job. Instead, he rented a room in Ambridge where he stayed while he was working. He would return to Hillsville on weekends and during his day off. However, as time went on, these visits grew less and less frequent, and he did not spend more than a few hours a month in Hillsville. He would return there occasionally, between shifts, principally to get clean laundry. The parties did not share the same bed for two years prior to 1947. Appellant gave his wife a telephone number at the plant where he worked, but refused to give her the number of the telephone at his rooming-house, or to inform her where it was located. She constantly requested appellant to obtain a home in or near Ambridge, so that the family might live together there. He made no effort to do so and, when appellee on her own initiative secured an apartment in Ambridge, he refused to take it. Subsequently, appellee heard rumors that appellant was associating with another woman in Ambridge. When she questioned appellant about the situation, he refused to discuss it. On November 6, 1947, while appellant was in Hillsville she informed him that if he did not stay with her that night or take her with him, he was to remove his father, as she did not intend to remain, and the father could not stay alone. Appellant then took his father to a sister's residence, and appellee went with their daughter to the house of a relative. In February, 1948, in the Court of Quarter Sessions of Lawrence County, appellee

[ 176 Pa. Super. Page 111]

    obtained an order against appellant for the support of herself and daughter.*fn1 In May, 1948, appellee moved to Brooklyn, where she established a residence so that the daughter could attend college. This arrangement was apparently made with appellant's approval.

Appellant's contentions are as follows: '1. Where the husband, in good faith and according to his means, establishes a home for his wife, is she justified in abandoning that home for the reason that the husband's employment requires him to be away from the home during the greater portion of the time. 2. Does the husband's rejection of the wife's offer to return to the family home on her own condition that he either give up his job or move the family home show that he consents to the separation'. Appellee raised a question in the lower court as to venue, which was ruled adversely to her contention. The matter was not pressed in the argument before us, and it is unnecessary to discuss it.

The Act of May 2, 1929, P.L. 1237, § 10, as amended, 23 P.S. § 10, provides that it shall be lawful for the innocent and injured spouse to obtain a divorce whenever 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'. As defined in the early case of Ingersoll v. Ingersoll, 49 Pa. 249, 'Desertion is an ...


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