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BURT v. BURT. (12/14/60)

December 14, 1960

BURT, APPELLANT,
v.
BURT.



Appeal, No. 200, April T., 1960, from decree of Court of Common Pleas of Allegheny County, April T., 1959, No. 2995, in case of Edgar M. Burt v. Lois R. Burt. Decree affirmed.

COUNSEL

Gilbert E. Morcroft, for appellant.

John W. Cost, for appellee.

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

Author: Wright

[ 194 Pa. Super. Page 35]

OPINION BY WRIGHT, J.

On March 9, 1959, Edgar M. Burt filed a complaint in divorce a.v.m. against his wife, Lois R. Burt, on the ground of desertion. After the filing of an answer, and the determination of a rule for a bill of particulars and a petition for counsel fees, testimony was taken at two hearings before Honorable ROBERT VAN DER VOORT, one of the Judges of the Court of Common Pleas of Allegheny County. On June 3, 1960, the hearing judge entered a decree dismissing the complaint. This appeal followed.

The parties were married on October 7, 1950, in Avalon, Allegheny County, and lived together until September 6, 1956, which is asserted by appellant as the date of the wife's desertion. At the time of the hearings, appellant was aged 37 and his wife was aged 36. They have two children. Sally was born in September 1951, and David was born in September 1954. Appellant was employed by the Hartford Steam Boiler and Inspection Company, which firm had an office in Pittsburgh. However, for a period of over three years prior to September 6, 1956, appellant and his wife maintained their residence in the State of West Virginia, first at Clarksburg, later at Bridgeport. Throughout this period, the wife's mother and appellant's mother continued to reside in Avalon. Apparently appellant's sole complaint concerned the amount of time his wife spent with her mother. His employer had a company picnic each year in the summer and a company

[ 194 Pa. Super. Page 36]

Christmas party each year in December, which events appellant always attended. Appellant and his wife and children customarily came to Avalon on the occasions of the picnics and Christmas parties. The wife and children would stay with her mother, and appellant would stay with his mother. On September 6, 1956, after a visit in Avalon, appellant returned to West Virginia without his wife and children. The pivotal issue is whether this circumstance constituted desertion on the part of the wife.

Appellant's theory is that he did not take his wife and children back with him because "she told me she couldn't give up her mother". It appears that, shortly thereafter, the husband was transferred to Pittsburgh. In November 1956, the home was sold by mutual agreement. Title was in joint names and both parties signed the deed. At about the same time, an order was entered in the Allegheny County Court for support of the wife and children. While this fact is not controlling, it is a circumstance to be given consideration: Young v. Young, 192 Pa. Superior Ct. 343, 162 A.2d 45; McNally v. McNally, 176 Pa. Superior Ct. 494, 108 A.2d 839; D'Alfonso v. D'Alfonso, 138 Pa. Superior Ct. 378, 10 A.2d 808.

Appellant's theory rests entirely upon his own testimony. His statement that the wife "would not give up her mother" is concededly uncorroborated. "Q. Is it your word against hers? A. Yes, Sir". Each time his wife and children left the family home in West Virginia to come to her mother's home in Avalon, appellant assisted with the transportation. Sometimes he brought them the whole way, sometimes only to the airport, and on one occasion to Uniontown where they took a bus. On September 2, ...


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