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WAGNER v. WAGNER (12/11/72)

decided: December 11, 1972.

WAGNER
v.
WAGNER, APPELLANT



Appeal from decree of Court of Common Pleas of Susquehanna County, Nov. T., 1969, No. 77, in case of Robert A. Wagner v. Rose Wagner.

COUNSEL

John P. Lavelle for appellant.

Martin T. Dillon, with him Robert G. Dean, for appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Cercone, J. Wright, P. J., dissents.

Author: Cercone

[ 223 Pa. Super. Page 242]

This is an appeal by the wife-defendant from the lower court's grant to the husband-plaintiff of a decree of divorce from the bonds of matrimony on the ground of the wife's willful and malicious desertion.

The parties were married in 1942 and resided together until September 18, 1960. On September 18, 1960 (which was the day after the wife-defendant had called the bowling alley where plaintiff was supposed to be and found he was not there), the wife-defendant, when doing the laundry, noticed that her husband's

[ 223 Pa. Super. Page 243]

    shirt smelled of perfume and had a lipstick mark on the collar. She immediately called her husband at the plant where he worked and requested that he come home to discuss an urgent matter. When he came home, defendant confronted him with the shirt and asked for an explanation. The plaintiff vigorously denied that he had been out with a girl and a violent argument ensued, at the end of which plaintiff said he "had had it", and he was going to see his lawyer.*fn1 He came back after a couple of hours, packed his clothes, told his wife he had filed for divorce and that his attorney had advised him it was improper for him to be seeking a divorce and living with her in the same house. He then left. Defendant was served with divorce papers later that afternoon.

On the next day, defendant consulted with a lawyer, withdrew the money that was in a joint savings account, returned to the apartment and packed her bags, and left the marital abode never to return. That same day, however, plaintiff returned to the apartment and has since resided there. No communication was had between the parties until six or seven weeks later, when there was a meeting of the parties and their attorneys during which, according to the husband's testimony, he had asked her to return and she refused. The wife, in her testimony, agreed that the husband had offered reconciliation but stated that he had conditioned it on her changing her ways.

Our independent review of the record leads us to agree with the lower court's determination that the evidence fails to reveal that (1) the wife had just cause

[ 223 Pa. Super. Page 244]

    for her separation from her husband; or (2) that the husband had ...


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