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NEYMAN F. MCNALLY v. MARTHA E. MCNALLY (11/09/54)

SUPERIOR COURT OF PENNSYLVANIA


November 9, 1954

NEYMAN F. MCNALLY, APPELLANT,
v.
MARTHA E. MCNALLY

COUNSEL

Armin H. Friedman, Pittsburgh, for appellant.

Clair D. Moss, Pittsburgh, for appellee.

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

Author: Wright

[ 176 Pa. Super. Page 495]

WRIGHT, Judge.

Neyman F. McNally filed a complaint in divorce charging his wife, Martha E. McNally, with desertion for a period of two years from November 1, 1949. The Master recommended that a divorce be granted. The court below did not differ with the Master as to the credibility of the witnesses, but disagreed with his conclusion that the facts established desertion by the wife. A divorce was therefore refused, and this appeal followed. We have examined the evidence de novo for the purpose of determining whether the complaint alleged in the lilbel has been sustained. See Bobst v. Bobst, 375 Pa. 441, 54 A.2d 898. Our conclusion is that the case was properly decided by the lower court.

The parties were married at New Castle, Pennsylvania, on November 25, 1930, and established a family home there. They had one child, a daughter, who was twenty years of age at the time of the hearing. In November, 1938, because of a lack of work in the New Castle area, appellant secured employment at the Irwin Works of the United States Steel Company. He commuted between his work in Irwin and the home in New Castle (some seventy miles) over weekends until the date of the alleged desertion. Appellant's position is that he wanted his wife to live with him near his

[ 176 Pa. Super. Page 496]

    employment, and made numerous efforts to secure suitable quarters, but that the wife was not satisfied with any place he suggested, and actually did not want to leave her job in New Castle. On the other hand, the wife's position is that she was always willing to move. She testified that, on one occasion in March, 1949, she secured employment in Pittsburgh, whereupon the husband said: 'You are not coming to Pittsburgh to live. You have lived this long in New Castle. I positively refuse to have you come to Pittsburgh to live'. In this occurrence the wife was corroborated by at least two witnesses.

Howbeit, the evidence is uncontradicted that the parties lived together in New Castle until November 1, 1949, on which date, in the wife's absence, appellant departed from the home leaving a note on the dining room table. The specific reason assigned by appellant for his action was a remark by the wife during an argument that maintenance of the home depended upon her earnings. The note was not offered in evidence, but the wife testified that it included a request that she make no attempt to communicate with her husband by telephone. Appellant returned at times to see his daughter. On some of these occasions he talked with his wife. However, at no time did he offer to provide a home, or request his wife to come to live with him.

The Master relied solely upon Ruf v. Ruf, 168 Pa. Super. 632, 82 A.2d 280, which holds that the husband's choice of a home, if exercised in good faith, is controlling. But in that case the husband had a home in which he lived, and to which he requested his wife to come. The error in the Master's position is readily demonstrated by the following excerpt from his report: 'I find these past refusals of the defendant, Martha McNally, coming to the Clairton area to live constitute on her part a wilful separation which her husband

[ 176 Pa. Super. Page 497]

    that appellant had no bona fide desire to again live with his wife. On the contrary he was interested in endeavoring to bring about a divorce. See Totino v. Totino, 176 Pa. Super. 108, 106 A.2d 881.

The order refusing a divorce is affirmed.


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