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MCELROY v. MCELROY (01/21/58)

January 21, 1958

MCELROY
v.
MCELROY, APPELLANT.



Appeal, No. 212, April T., 1956, from decree of Court of Common Pleas of Allegheny County, Jan. T., 1954, D. No. 274, in case of Philip C. McElroy v. Emma McElroy. Decree reversed.

COUNSEL

Louis T. Katusin, for appellant.

J. L. LaVictorie, for appellee.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.

Author: Wright

[ 185 Pa. Super. Page 79]

OPINION BY WRIGHT, J.

In this divorce action the complaint of the husband, as amended, alleged desertion by the wife on October 14, 1948. In his well prepared and persuasive report the master recommended that the complaint be dismissed. The court below sustained the husband's exceptions and entered a final decree. This appeal on behalf of the wife followed.

Philip C. McElroy and Emma Marie Kean were married on September 8, 1932, and established their residence at 204 Fifty-fourth Street in the City of Pittsburgh. They have two adult children. The marriage was apparently uneventful until the summer of 1948. At that time the wife was in ill health and receiving medical attention for a nervous disorder. On August 8, 1948, having threatened to commit suicide, the wife was committed to the mental department of St. Francis Hospital where she remained as a patient until September 13, 1948. On October 14, 1948, while the husband was at work, the wife went to the residence of her mother, also in the Pittsburgh district, leaving her son, then aged twelve, alone in the home. On or about January 13, 1949, the wife returned to the home and an argument with the husband ensued as a result of which the wife was committed to Mayview State Hospital. She remained as a patient in that institution undergoing, inter alia, shock treatments until May 16, 1952. She has been cared for since at the home of her mother. In October, 1953, as a result of an action in the county court, the husband was ordered to pay $60.00 a month for the support of the wife. He admitted that during the previous five year period he

[ 185 Pa. Super. Page 80]

    had given her only $100.00. He ia also in arrears in his payments under the existing order.

Proof of the fact that a husband and wife are living separate and apart from each other does not establish desertion. The Divorce Law expressly provides that the innocent and injured spouse may obtain a divorce if the other spouse (italics supplied) "shall have committed wilful and malicious desertion, and absence from the habitation ... for and during the term and space of two years". Act of 1929, P.L. 1237, section 10, 23 P.S. 10. In the case at bar we are in entire agreement with the position of the master that, because of the wife's mental condition, the alleged desertion was not wilful and malicious. Set forth in the footnote*fn1 is the master's observation in connection with the wife's testimony. See Smith v. Smith, 157 Pa. Superior Ct. 582, 43 A.2d 371.

It should be noted that the learned judge of the court below did not adopt the husband's contention that there was desertion as of October 14, 1948, but took the position that "there is no excuse for her absence from the plaintiff's home from May 16, 1952 until the date of the hearing on ...


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