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DIMILIA v. DIMILIA (09/17/64)

decided: September 17, 1964.

DIMILIA
v.
DIMILIA, APPELLANT



Appeal from decree of Court of Common Pleas of Montgomery County, No. 61-7470, in case of Gino DiMilia v. Hilda DiMilia.

COUNSEL

Thomas D. McBride, with him Anthony S. Minisi, Judah I. Labovitz, and Wolf, Block, Schorr and Solis-Cohen, for appellant.

Frank F. Truscott, with him Otis W. Erisman, and Truscott, Kline, O'Neill & Howson, for appellee.

Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (Rhodes, P. J., absent). Opinion by Watkins, J.

Author: Watkins

[ 204 Pa. Super. Page 190]

In this appeal from the final decree in divorce a.v.m. of the Court of Common Pleas of Montgomery County in favor of Gino DiMilia and against Hilda DiMilia, the questions raised by the wife-appellant are (1) the jurisdiction of the court by reason of the residency of the husband-appellee; (2) whether there was a desertion under the law; and (3) whether the husband was an injured and innocent spouse.

The parties were married on June 28, 1948 at Montclair, New Jersey. There are no children of the marriage. They have resided together and separately in various places in Pennsylvania and New Jersey. At the time of the alleged desertion the place of residence was 309 Motel, Montgomeryville, Montgomery County, Pennsylvania. The husband admits that, although he lived in Pennsylvania most of the time since 1953 at various addresses, where on many occasions his wife stayed with him, they continued to maintain an apartment at 47 North Fullerton Avenue, Montclair, New Jersey. It is contended that the husband decided to become a resident of Pennsylvania in 1958.

This action in divorce was brought on August 23, 1961 and charged indignities to the person and desertion occurring and persisted in since April 17, 1960. The master held nine hearings and on July 17, 1963, filed his report holding that the complaint as to indignities had not been made out; but found that the husband had been domiciled and had resided in Pennsylvania since 1958; that the averments as to desertion had been sustained and recommended that a divorce be

[ 204 Pa. Super. Page 191]

    entered on that ground. The wife filed exceptions to the master's report. The exceptions were dismissed by the court below and the final decree entered.

This Court has "held many times that the opinion of the master should receive great consideration as the court reviews the record de novo." DiTroia v. DiTroia, 202 Pa. Superior Ct. 7, 9, 193 A.2d 877 (1963). "The master's report, although advisory only, is to be given the fullest consideration as regards the credibility of witnesses whom he has seen and heard, and in this respect his report should not be lightly disregarded." Shoemaker v. Shoemaker, 199 Pa. Superior Ct. 61, 65, 184 A.2d 282 (1962). The master's report in this case indicates a careful and detailed analysis of the record and his findings and conclusions are clear and concise.

The wife contends that the husband was not a bona fide resident of Pennsylvania for one year prior to the filing of the complaint. The Divorce Code of May 2, 1929, § 16, as amended, 23 PS § 16. "Bona fide residence" means "residence with domiciliary intent". Horne v. Horne, 191 Pa. Superior Ct. 627, 631, 159 A.2d 239 (1960). By domicile is meant the place where a person has his true, fixed, permanent home and principal establishment; and to which, whenever he is absent, he has the intention of returning. Dorrance's Estate, 309 Pa. 151, 173, 163 A. 303 (1932).

"The proof of a change of domicile does not depend upon any particular fact but upon whether all the facts taken together tend to establish a new, fixed and permanent residence." Com. ex rel. Saunders v. Saunders, 155 Pa. Superior Ct. 393, 396, 38 A.2d 730 (1944). "Intention is always an elusive concept and what factors, in a given case, exhibit such intention will usually be determined by and be dependent upon the facts ...


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