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FITELSON v. FITELSON. (04/16/59)

April 16, 1959

FITELSON, APPELLANT,
v.
FITELSON.



Appeal, No. 24, Feb. T., 1959, from decree of Court of Common Pleas of Luzerne County, Dec. T., 1956, No. 43, in case of Philip Fitelson v. Helen Fitelson. Decree affirmed.

COUNSEL

Nicholas R. Dcgillio, for appellant.

Joseph J. Savitz, with him Max Rosenn, and Rosenn, Jenkins & Greenwald, for appellee.

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

Author: Wright

[ 189 Pa. Super. Page 367]

OPINION BY WRIGHT, J.

In this case the husband filed a complaint in divorce a.v.m. on the ground of desertion. The master recommended that a decree be entered. The court below sustained the wife's exceptions and dismissed the complaint. This appeal by the husband followed.

The parties were married on January 3, 1927. No children were born as a result of the marriage, but two boys were adopted. At the time of the hearing before

[ 189 Pa. Super. Page 368]

    the master, the husband was aged 51 and the wife 52. The husband was a newspaper circulation representative and the parties moved frequently and resided at various places in New York, Nebraska, New Jersey, and Pennsylvania, finally settling in Easton in 1949 where they purchased a residence. Some two years later the husband "had a chance to buy the ground to open a park I had in mind called Playland Park" in Rice Township, Luzerne County. The theory of his case is that he desired his wife to move to Luzerne County and she refused. On the other hand, the wife's position is that she was always willing and desirous to move but that the husband refused on the ground, inter alia, that there were no facilities for the children to go back and forth to school. The husband is presently in the insurance business. The wife is employed as a clerk for the Easton School District.

Appellant advances three contentions. The first states a general proposition which is not in dispute, namely, that a husband has the right to change his home if his work, his comfort, or even if his convenience requires it, and if the wife without reasonable cause refuses to join him, and if such home is suitable within the husband's means and the choice thereof is made by him in good faith, her refusal constitutes desertion. See Greer v. Greer, 178 Pa. Superior Ct. 643, 115 A.2d 794; Kowalchick v. Kowalchick, 187 Pa. Superior Ct. 201, 144 A.2d 762; Hyle v. Hyle, 188 Pa. Superior Ct. 20, 145 A.2d 889. To support a charge of desertion it must be shown that the wife refused without cause to join her husband at his new location and that he provided a suitable residence for her: Buckley v. Buckley, 184 Pa. Superior Ct. 465, 135 A.2d 791.

This brings us to appellant's remaining contentions, which constitute the crux of ...


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