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WILLIAM H. DUKENFIELD v. EDNA A. HEMPHILL TWEEDALE DUKENFIELD (01/14/55)

January 14, 1955

WILLIAM H. DUKENFIELD
v.
EDNA A. HEMPHILL TWEEDALE DUKENFIELD, APPELLANT



Appeal, No. 137, Oct. T., 1954, from decree of Court of Common Pleas No. 3 of Philadelphia County, June T., 1952, No. 7257, in case of William H. Dukenfield v. Edna A. Hemphill Tweedale Dukenfield. Decree affirmed.

COUNSEL

Hymen Schwartz, Philadelphia, for appellant.

John Pemberton Jordan, Philadelphia, for appellee.

Before Rhodes, P. J., Hirt, Gunther, Wright, Woodside and Ervin, JJ. (ross, J., absent).

Author: Gunther

[ 177 Pa. Super. Page 216]

OPINION BY GUNTHER, J.,

The husband sued for a divorce, alleging desertion. The master recommended and the court below entered a decree of divorce. The parties were married on November 22, 1944, the plaintiff being then 53 years of age and once divorced, and the defendant 42 years of age, once widowed and once divorced. After their marriage, they resided together at 3309 Shelmire Street in Philadelphia. The house was owned by defendant. Plaintiff testified that they were both to work to pay off the indebtedness on the house and furniture. He purchased savings bonds in both names out of his earnings. In 1945-46, defendant cashed the bonds and deposited the proceeds under her own name. During this period, various arguments arose over the bonds; on many occasions plaintiff was told "this is my house, and you get the hell out and never come back again". He testified that on August 2, 1946, after an argument about the bonds, he attempted a reconciliation but without success.

For her part the wife testified that dissension arose because he refused to give her money; that she never

[ 177 Pa. Super. Page 217]

    obtained custody of any bonds, and that she did not lock him out. After an independent examination of the record, we concur, especially in view of her refuted testimony as to the bonds and also because it was shown that she had later signed a false affidavit of non-remarriage when she sold her house in 1950.

The record clearly supports the conclusion of credibility in favor of the husband. The wife now alleges that his testimony is insufficient to support a divorce on the ground of desertion, since she remained in the home and did not evict him with force or violence. A case of desertion, however, is maintained where a wife locks her husband out of the house without justification and without his consent, refuses to let him return and persists in such refusal for two years: Heimovitz v. Heimovitz, 161 Pa. Superior Ct. 522, 55 A.2d 575; Scanga v. Scanga, 167 Pa. Superior Ct. 133, 74 A.2d 723. In that respect, a husband and wife are on an equal footing before the law. The evidence in this case clearly establishes that the husband was locked out by a bolted door without good cause, that it was without his consent and that he made many attempts toward reconciliation, which were refused. The result was desertion as surely as if defendant had left the house herself and remained away for two years.

Defendant also makes much of the fact that two months after the desertion she obtained a support order against her husband. This is a relevant factor to be considered: Copeland v. Copeland, 155 Pa. Superior Ct. 102, 38 A.2d 364, but it is not conclusive on the subject of desertion. The record in this case is clear and ...


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