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ZIMMERMAN v. ZIMMERMAN. (12/12/63)

December 12, 1963

ZIMMERMAN, APPELLANT,
v.
ZIMMERMAN.



Appeal, No. 344, Oct. T., 1963, from order of Court ofCommon Pleas of Cumberland County, May T., 1962, No. 725, in case of Eugene W. Zimmerman v. Eleanor Zimmerman. Decree affirmed.

COUNSEL

George F. Douglas, Jr., with him John H. Bream, and Faller and Douglas, for appellant.

Richard A. Brown, with him Myers, Myers & Flower, and Brown, Swope & McPhail, for appellee.

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

Author: Ervin

[ 202 Pa. Super. Page 177]

OPINION BY ERVIN, J.

This is an appeal by the plaintiff, Eugene W. Zimmerman, from the refusal of the court below to grant him a divorce a.v.m. on the grounds of desertion and indignities to the person.

It is the second time that these parties have been before this court with regard to their marital discord: see Zimmerman v. Zimmerman, 198 Pa. Superior Ct. 26, 180 A.2d 97.

We have carefully examined the entire record and have reviewed the briefs of counsel and find that on April 13, 1959 Mrs. Zimmerman withdrew from the common household and on October 19, 1959 she filed an action in divorce from bed and board on the grounds of adultery and indignities to the person. On April 12, 1962 this court affirmed the order of the court below dismissing Mrs. Zimmerman's complaint. On April 19, 1962, Mr. Zimmerman filed the present complaint charging desertion and indignities.

It has long been the law that in computing the statutory period necessary to support a divorce for desertion, the time of the voluntary separation of the defendant during the pendency of a previous divorce suit brought in good faith by the defendant, cannot be included

[ 202 Pa. Super. Page 178]

    by the plaintiff in the two-year statutory period: Zeiler v. Zeiler, 58 Pa. Superior Ct. 220; Sperling v. sperling, 82 Pa. Superior Ct. 308; Franks v. Franks, 129 Pa. Superior Ct. 487, 196 A. 578; Lowe v. Lowe, 148 Pa. Superior Ct. 439, 25 A.2d 781; Caplan v. Caplan, 174 Pa. Superior Ct. 583, 102 A.2d 198; White v. White, 185 Pa. Superior Ct. 141, 138 A.2d 162.

The cases of Colin v. Colin, 190 Pa. Superior Ct. 125, 151 A.2d 801, and Ganunis v. Ganunia, 201 Pa. Superior Ct. 222, 192 A.2d 236, are not applicable and do not change the existing law as announced in ...


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