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SMITH v. SMITH (04/15/65)

decided: April 15, 1965.

SMITH, APPELLANT,
v.
SMITH



Appeal from order of Court of Common Pleas of Lebanon County, June T., 1963, No. 10, in case of Kenneth L. Smith v. Vera S. Smith.

COUNSEL

Christian R. Gingrich, for appellant.

J. R. Whitman, with him Meyer, Brubaker & Whitman, for appellee.

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

Author: Hoffman

[ 205 Pa. Super. Page 403]

The appellant-husband commenced an action in divorce and filed an amended complaint*fn1 on June 13, 1963. This complaint alleged (1) desertion by the wife from May 30, 1957 to the date of the filing of the amended complaint and (2) indignities during the

[ 205 Pa. Super. Page 404]

    same period. After a hearing on October 16, 1963, the master filed a report recommending a divorce on the ground of desertion alone. The court below refused to approve the master's report and dismissed the complaint. From this dismissal the husband has appealed.

Kenneth L. and Vera S. Smith were married on September 11, 1954 and lived in Lebanon, Pennsylvania. On or about May 30, 1957, after three years of constant quarreling, they separated. The wife, without notice, left the marital domicile while her husband was at work and moved to another address in the City of Lebanon.

During the period from May 1957 to June 1960 the parties, while separated, maintained a relationship which might well be the envy of more happily-married couples. They would speak by phone almost every evening and visit each other regularly. The wife laundered her husband's clothes, did his sewing, and brought milk to him each morning. They engaged in marital relations on a weekly basis. During this period they often discussed the possibility of re-establishing their home but were never able to reach a final agreement.

In July 1960 the wife secured a court order of support in the amount of $10.00 a week. The parties had no contact after this date.

The wife testified at the master's hearing that she refused to return to her husband after June 1960, because she knew that he had associated and been intimate with other women. The husband admitted that he began dating one Mae Hipp in January 1961 and had engaged in sexual relations with her from that time until August 1961. He further admitted that he had continued to see this woman to the date of the master's hearing. He denied having sexual relations with her after August 1961, ...


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