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KOWALCHICK v. KOWALCHICK (09/11/58)

September 11, 1958

KOWALCHICK
v.
KOWALCHICK, APPELLANT.



Appeal, No. 197, April T., 1957, from decree of Court of Common Pleas of Washington County, May T., 1953, No. 45, in case of Simeon Kowalchick v. Mary Anastasia Kowalchick. Decree affirmed; reargument refused October 3, 1958.

COUNSEL

F. J. McCloskey, with him McCloskey, Patrono and McCloskey, for appellant.

Sanford S. Finder, for appellee.

Before Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ. (rhodes, P.j., absent).

Author: Hirt

[ 187 Pa. Super. Page 202]

OPINION BY HIRT, J.

The parties following their marriage in 1941 lived in the home of the wife's parents in California, Pennsylvania. But one room was theirs exclusively, which they used as a bedroom. The parents shared the other rooms on the first floor with them. The wife's brother occupied the whole of the second floor, with his wife and two children. The plaintiff left his wife in her parent's home on February 17, 1943. She, with her 10-year old son, the only child of the parties, has continued to live there; he has lived separate and apart

[ 187 Pa. Super. Page 203]

    from her since the separation on the above date. This is the appeal of the wife from a decree of divorce entered by the lower court on its conclusion that the charge of desertion was sustained by plaintiff's proofs. The issue is largely one of credibility of the parties and their witnesses; on this issue the judgment of the master, who recommended that a divorce be granted, is entitled to the fullest consideration (Hardiman v. Hardiman, 166 Pa. Superior Ct. 434, 71 A.2d 815) although not controlling.

For a time following the separation the defendant on a number of occasions asked the plaintiff to come back and live with her in the home of her parents. She however did not indicate a willingness to live with him at any other place. These requests therefore were no defense to the charge of desertion. A wife need not live with her husband in the home of his parents (Latz v. Latz, 157 Pa. Superior Ct. 329, 43 A.2d 435) and certainly this husband, if he was ready and willing to set up a suitable separate home for her elsewhere, was not obliged to return to live with her in the home of her parents. It is the duty of a husband to provide a suitable home within his means, and his choice as to kind and location is controlling if reasonable and if exercised in good faith; in such circumstances it is incumbent on the wife to live with him there. Fuller v. Fuller, 158 Pa. Superior Ct. 378, 45 A.2d 231; Barnes v. Barnes, 156 Pa. Superior Ct. 196, 40 A.2d 108.

The issue in the instant case is a narrow one and is wholly of fact. The plaintiff's work, as a foreman, in some phase of a bituminous mining operation, was at Richeyville, about 9 miles from California. He testified that as early as the spring of 1946 he suggested the setting up of a home in Richeyville; that the defendant then said she did not want to associate with the kind of people who lived there, and she countered

[ 187 Pa. Super. Page 204]

    by suggesting the purchase of a home on Penn Avenue in California. Plaintiff said the price was $15,000 and he could not afford it. The plaintiff testified that in January 1949, a month before the separation he had an opportunity to buy a modest but suitable home in Richeyville for $6,000 and they then had $4,000 in cash in a joint bank account to apply on the purchase price. Alex Remo, the owner of the house in Richeyville was called by the plaintiff and he testified that he offered to sell the house to plaintiff for $6,000 but that the negotiations ended when plaintiff reported that his wife was not willing to live in Richeyville. Plaintiff testified that his wife refused to agree to the purchase of the Remo house because as she stated, she was unwilling to leave her mother who (her father having died in the meantime) then was a widow. The plaintiff was corroborated by two witnesses, who were present at the time of the above discussion between plaintiff and his wife, whose testimony was to the same effect. The defendant categorically denied any discussion with her husband ...


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