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MULLEN v. MULLEN (11/10/65)

decided: November 10, 1965.

MULLEN, APPELLANT,
v.
MULLEN



Appeal from decree of Court of Common Pleas of Montgomery County, No. 64-7624, in case of Joseph Mullen v. Jessie M. C. Mullen.

COUNSEL

Robert Trucksess, for appellant.

Alexander Knight, for appellee.

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

Author: Wright

[ 206 Pa. Super. Page 471]

On July 7, 1964, Joseph Mullen filed a complaint in divorce a.v.m. against his wife, Jessie M. C. Mullen, on the ground of desertion. Following the filing of an answer, a master was appointed on December 4, 1964. After taking testimony, the master filed a report on March 19, 1965, recommending that the prayer of the complaint be denied. On June 16, 1965, the court below

[ 206 Pa. Super. Page 472]

    dismissed exceptions filed by the husband, adopted the master's recommendation, and refused to grant the divorce. This appeal followed. The factual situation appears in the following excerpt from the opinion of Judge Smillie for the court en banc:

"The parties were married March 5, 1924 and lived together until December 26, 1960, -- the date alleged by husband-plaintiff as the date of his wife's desertion. At the time of the hearing, plaintiff was sixty-three years of age; his wife sixty-four; with only one child, a son aged forty. The plaintiff is employed by his son, part-time, in the contracting business; the defendant-wife is a part-time baby sitter.

"In December 1956, the parties occupied separate bedrooms. Prior thereto there had been no serious marital difficulties except arguments over sex. The plaintiff demanded sexual relations three times a week throughout most of their marriage which his wife on occasion refused. The defendant denied she ever refused to have sexual relations for any period of time and stated that as far as she could recall, there was never a week that they did not engage in intercourse during her entire married life of forty-one years duration.

"Although the testimony is somewhat conflicting as to what caused the occupation of separate bedrooms, it seems crystal clear to the writer that the wife's version is more to be believed than husband's because of the circumstances surrounding husband's conduct as is more fully hereinafter reviewed.

"The plaintiff stated that the change of bedrooms was caused by wife's persistent refusal to have sexual relations. The wife-defendant testified that during the last six months of 1956 her husband's attitude towards her underwent a drastic change. The change coincided with finding lipstick on his ...


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