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JOHNSON v. JOHNSON (06/15/61)

June 15, 1961

JOHNSON
v.
JOHNSON, APPELLANT.



Appeal, No. 16, Oct. T., 1961, from decree of Court of Common Pleas No. 3 of Philadelphia County, Sept. T., 1957, No. 1718, in case of Joseph O. Johnson v. Madie L. Johnson. Decree reversed.

COUNSEL

Harry C. Liebman, for appellant.

Leonard B. Gordon, for appellee.

Before Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (rhodes, P.j., absent).

Author: Montgomery

[ 195 Pa. Super. Page 448]

OPINION BY MONTGOMERY, J.

This is an appeal from a decree granting a divorce a.v.m. on the grounds of desertion. The parties were married on February 5, 1956 in Nashville, Tennessee. At that time the plaintiff-husband was a dental student and the defendant-wife was a nurse. On the day of the marriage the parties went to a hotel in Nashville where they remained together for one night. The following day the defendant returned to her family home in Baltimore, Maryland, where she gave birth to a child on August 24, 1956. The plaintiff remained in dental school until his graduation in June, 1956, and starting in July, 1956, served as a dental interne in a hospital in Jersey City, New Jersey. Thereafter, he returned to Philadelphia, where he still resides and is employed by the City of Philadelphia in its Department of Health. Plaintiff admits that he visited defendant in Baltimore from time to time, as late as December of 1956, but he denies that he remained overnight or had marital relations with her after June of 1956.

The defendant testified that the plaintiff never asked her to live with him; that she was always willing

[ 195 Pa. Super. Page 449]

    to live with the plaintiff in a home of his choosing and told him so several times; that the plaintiff continued to visit her at her home in Baltimore from December, 1956 until April, 1957 and continued to have marital relations with her; that she called the plaintiff on the telephone in July of 1957 to ascertain whether he would make a home for her and their child, and he refused; that she came to Philadelphia on October 18, 1957, registered at the Chesterfield Hotel and contacted plaintiff, who joined her there for interim periods over the weekend during which they had marital relations; that on that date she inquired of the plaintiff whether he intended to make a home for her and baby but was advised by him that he could not do so; that she subsequently called him several times without success and finally sent him a telegram offering to live with him but received no response. The defendant was corroborated by her two sisters and mother as respects the visits made by the plaintiff to the defendant between December, 1956 and April of 1957.

The plaintiff, in his testimony, disagreed on almost all phases of the controversy. He testified that he repeatedly, on his visits to Baltimore and in telephone conversations, requested the defendant to join him, but the defendant at all times, refused to leave her home in Baltimore. The plaintiff maintained that he wanted to provide a home for his wife in Jersey City but she refused to join him. He claimed that living quarters were available through the hospital, and although his earnings were modest, $60.00 per month, he believed that they could manage.

The master to whom this case was referred, first filed a report in which he recommended that the complaint be dismissed without prejudice for the sole reason that the proofs did not support the finding of a wilful and malicious desertion, commencing ...


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