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LILLEY v. LILLEY (11/16/61)

November 16, 1961

LILLEY
v.
LILLEY, APPELLANT.



Appeal, No. 190, Oct. T., 1961, from decree of Court of Common Pleas No. 1 of Philadelphia County, Sept. T., 1959, No. 341, in case of Birdell Lilley, also known as Birdell L. Lilley v. Matilda Lilley. Decree affirmed.

COUNSEL

Alexander Schamban, and D'Agui & Del Collo, for appellant.

Abraham T. Needleman, and Jerome Gamburg, for appellee.

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

Author: Rhodes

[ 196 Pa. Super. Page 262]

OPINION BY RHODES, P.J.

Plaintiff-husband instituted an action against his wife seeking a divorce a.v.m. on the grounds of desertion. The case was referred to a master who heard testimony and filed a report recommending a decree based on desertion. The court below dismissed the wife's exceptions to the master's report and ordered a decree to be entered on the ground alleged in the complaint. The wife-defendant appealed from the entry of the final decree.

While the report of the master who saw and heard the witnesses is entitled to the fullest consideration, especially on the issue of credibility, we are required to review the record and reach an independent conclusion. Smith v. Smith, 157 Pa. Superior Ct. 582, 583, 43 A.2d 371; Horne v. Horne, 191 Pa. Superior Ct. 627, 633, 159 A.2d 239.

The parties lived together from June 23, 1915, the time of their marriage, until 1916, when defendant left taking their infant son. In 1919, a reconciliation was effected; they resumed cohabitation until January of 1927, when defendant again left the home and never returned. The present divorce action was instituted by plaintiff on September 24, 1959. Plaintiff is presently 67 years of age; defendant is 65.

Desertion entitling an injured and innocent spouse to a divorce consists of an actual abandonment of matrimonial cohabitation, with an intent to desert, wilfully and maliciously persisted in, without cause, for two years. The guilty intent is manifest when, without cause or consent, either party withdraws from the residence of the other. Ingersoll v. Ingersoll, 49 Pa. 249; Barnes v. Barnes, 156 Pa. Superior Ct. 196, 199, 40 A.2d 108. See Jablonski v. Jablonski, 397 Pa. 452, 155 A.2d 614. Only such cause as would itself warrant a divorce is reasonable cause for desertion. Jones v. Jones, 189 Pa. Superior Ct. 461, 465, 151 A.2d 643.

[ 196 Pa. Super. Page 263]

Following their marriage in 1915, the parties lived at 1414 Pemberton Street, Philadelphia. According to plaintiff, defendant agreed to live under the same roof with his mother. Defendant, on the other hand, contended she only agreed to live with the mother temporarily; that she never got along with her mother-in-law; and that this was one of the causes of the separation. There were two children of the marriage, a daughter born August 20, 1915, and a son born August 21, 1919. Plaintiff stated that defendant was satisfied to live with his mother, who cooked the meals and looked after their two children while defendant was at work. Plaintiff said he ceased sleeping with defendant about two weeks before the final separation in January, 1927, because she threatened to burn him with hot oil as he slept. On occasions when plaintiff attended lodge meetings, defendant would argue with him and falsely accuse him of running around. When defendant left in January of 1927, she took the children with her, together with her clothing and the bedroom furniture. Plaintiff made several bona fide attempts at reconciliation following defendant's departure in January, 1927, more particularly at Easter and Christmas of the following year when he visited his wife at her mother's residence. Defendant cursed him, refused his request to return, and said she did not want to be bothered with him.

Defendant admitted leaving her husband in January of 1927, but contended that her leaving was justified. She stated that a week or ten days prior to her final departure, in the course of an argument about his mother, plaintiff threw defendant through a window. Despite several beatings testified to by the defendant, she did not register any complaint with the police or consult a doctor for treatment of her alleged ...


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