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SCHWERTZ v. SCHWERTZ (01/16/62)

January 16, 1962

SCHWERTZ
v.
SCHWERTZ, APPELLANT.



Appeal, No. 109, April T., 1961, from decree of Court of Common Pleas of Allegheny County, Oct. T., 1955, No. 2604, in case of Paul J. Schwertz v. Dora Elizabeth Schwertz. Decree affirmed.

COUNSEL

John L. Bailey, with him William J. Graham, Ralph E. Smith, and Weller, Wicks & Wallace, for appellant.

Homer W. King, with him Francis V. Sabino, for appellee.

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

Author: Wright

[ 197 Pa. Super. Page 256]

OPINION BY WRIGHT, J.

This case arises as the result of a complaint in divorce filed by Paul J. Schwertz against his wife, Dora Elizabeth Schwertz, on the ground of desertion. After taking testimony at two hearings, the Master recommended that a divorce be granted. The court below dismissed the wife's exceptions to the report of the Master, and entered a final decree. The wife has appealed.

The parties were united in marriage on May 30, 1926. They had five children, of which one, a daughter born March 22, 1947, is still a minor. She continues to reside with her mother in the family home, owned jointly by the parties. The husband is now fifty-three, and the wife fifty years of age. He is employed by the American Bridge Company in Ambridge, Pennsylvania. She is a ward clerk at the Sewickly

[ 197 Pa. Super. Page 257]

Valley Hospital in Sewickly, Pennsylvania. The wife testified: "Well, we never did have a happy married life". On May 6, 1948, she underwent surgery, and the parties thereafter occupied separate bedrooms. Arguments became more frequent, precipitated largely by the wife's refusal to have sexual intercourse.

The separation upon which the husband's case rests occurred on May 22, 1953. Early that morning, before going to work, the husband entered his wife's bedroom and requested intercourse. The wife refused, and a violent argument ensued. When the husband came home from work that evening, he was arrested on a charge of surety of the peace. According to the opinion below: "He was held for court, but the charge was dismissed". The next day he found the doors of the home bolted, was refused admittance, and told never to return. On the porch was a suitcase packed with his clothing. The wife also changed the locks of their jointly owned automobile, and has since maintained exclusive possession thereof. The husband has been living in the Hess Hotel in Ambridge. Attempts on his part to effect a reconciliation were unsuccessful.

It is the wife's contention on this appeal that she was not guilty of desertion because she "had just and reasonable grounds for living separate and apart from her husband", that she "was fully justified in locking him out of their home and refusing a reconciliation", and that her testimony in this regard was "neither rebutted nor shaken by the plaintiff". She therefore argues that the exclusion of her husband from the home was not wilful and malicious, and that "the plaintiff is not an innocent and injured spouse". It is her position that the domestic difficulties of the parties "were largely instigated by the plaintiff's drinking ...


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