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LEE v. LEE. (01/21/58)

January 21, 1958

LEE, APPELLANT,
v.
LEE.



Appeal, No. 69, Oct. T., 1957, from decree of Court of Common Pleas of Montgomery County, June T., 1953, No. 367, in case of Arthur Lee v. Ida Louise Lee. Decree affirmed.

COUNSEL

James R. Caiola, for appellant.

Robert W. Tredinnick, with him Smillie, Bean, Davis & Tredinnick, for appellee.

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

Author: Ervin

[ 185 Pa. Super. Page 253]

OPINION BY ERVIN, J.

On July 21, 1953 the plaintiff, Arthur Lee, filed a complaint seeking a divorce a.v.m. on the ground of desertion. The master found for the plaintiff but the court below sustained exceptions to his report and refused the divorce. The plaintiff appealed.

After having reviewed the evidence de novo, we have reached the independent conclusion that the plaintiff has not met the burden of proof necessary to sustain his action. The plaintiff boarded at a home in Norristown,

[ 185 Pa. Super. Page 254]

Montgomery County, Pennsylvania. The defendant lived with her mother in Norristown. The parties were married on August 11, 1937 in Washington, D.C. at a time when the defendant was pregnant with plaintiff's child. They had no honeymoon but returned to Norristown immediately after the ceremony. The plaintiff took the defendant to her mother's home and left her there. He went to his boarding house. From that time until the present they have never lived together.

It is the plaintiff's contention that the period of desertion commenced on February 15, 1938. He said that on that date he delivered an ultimatum to his wife. He testified "... I was either going to come and live with her or her with me or I was through." It was the plaintiff's duty to establish a home for his wife. He testified that he offered to build a house on a lot next to his greenhouse business. He admitted, however, that in 1941, while being interviewed for the draft, he stated that his financial condition was such that he could not provide a home for his wife. He also testified that he spoke to his wife about living at a place on Markley Street, yet he could not even remember whether it was a house or an apartment and he admitted that he had not gone to see it. The wife denied that either offer had been made. We do not believe the plaintiff ever made a bona fide offer to establish a home for the defendant.

The plaintiff also testified that his wife refused to allow him to live with her in her mother's home. The plaintiff admitted, however, that he said: "If I did come to live with you, over-time we would have another child or somebody would get sick, I would have to move out." His answer is an implied admission of the wife's offer. The lack of faith in his cause was demonstrated ...


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