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SANTARSIERO v. SANTARSIERO (12/11/74)

decided: December 11, 1974.

SANTARSIERO
v.
SANTARSIERO, APPELLANT



Appeal from decree of Court of Common Pleas of Lackawanna County, Nov. T., 1972, No. 734, in case of Joseph Santarsiero v. Catherine Santarsiero.

COUNSEL

Thomas J. Jones, for appellant.

Joseph Santarsiero, in propria persona, with him Michael W. Simon, for appellee.

Watkins, P. J., Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. (Jacobs, J., absent). Opinion by Watkins, P. J. Dissenting Opinion by Spaeth, J. Price, J., joins in this opinion.

Author: Watkins

[ 231 Pa. Super. Page 287]

This is an appeal from a decree of the Court of Common Pleas of Lackawanna County granting a divorce to the husband-appellee, Joseph Santarsiero, from his wife-appellant, Catherine Santarsiero, on the grounds of desertion.

The couple were married on August 8, 1957. Both had been married previously, their former spouses having died. At the time of the appeal the appellee was

[ 231 Pa. Super. Page 28874]

years of age and the appellant was 70 years of age. It is undisputed that the couple live with the appellee's unmarried daughter at 618 East Warren Street, Dunmore, Pennsylvania, from the time of their marriage in 1957 until November 30, 1970, when the appellant removed herself from the marital abode and went to live with her son in Levittown, Pennsylvania.*fn1 On December 4, 1972, the appellee filed a complaint in divorce against the appellant and on January 10, 1974, the Court of Common Pleas of Lackawanna County granted the divorce on the grounds of desertion.

The issues in this case are whether the wife's actions in removing herself from the marital domicile were justified for any reason and whether she had made sufficient attempts at reconciliation so as to vitiate her leaving as a grounds for divorce.

It is well established that the choice of the marital home is the husband's, if made in good faith, and that the wife's failure to comply with her duty of living with her husband constitutes grounds for desertion. DiMilia v. DiMilia, 204 Pa. Superior Ct. 188, 203 A.2d 382 (1964); Sacks v. Sacks, 200 Pa. Superior Ct. 223, 188 A.2d 856 (1963); Pfeiffer v. Pfeiffer, 154 Pa. Superior Ct. 154, 35 A.2d 551 (1944). The record in the instant case demonstrates that the wife left the home where she and her husband had lived since the date of their marriage. No reason for leaving the home was given by the wife except that she objected to living in the home because her husband's unmarried daughter lived there with them. There is no evidence of fighting or quarreling between the parties as to this matter or as to any other matter. It appears that Mrs. Santarsiero simply decided to remove herself from the marital abode and

[ 231 Pa. Super. Page 289]

    did so, then, over six months later, presented her husband with an ultimatum to the effect that she would not live with him unless he consented to her choice of residence. This conduct flies in the face of the well established doctrine that it is the husband's choice of domicile, so long as it is exercised reasonably and in good faith, which is controlling.

In our case, the record shows that the appellee had lived at 618 East Warren Street, in Dunmore, Pennsylvania since 1950 when he bought the home. Although he had subsequently transferred full title to the home to his daughter, it had been with the understanding that he be permitted to reside in the home with his wife so long as he desired. The daughter had never attempted to or threatened to evict them from the premises and charged them no rent. Also, the appellee worked as a carpenter in Dunmore and the marital home was convenient for his work. He also was a lay preacher at one of the local churches. All his friends were in the neighborhood. The appellee's daughter worked nearby while the appellant held no job and spent the day at home. Under the circumstances, we feel that the appellee had indeed provided the appellant with an acceptable home and that her action in leaving the home was not justified.

The case of Barnes v. Barnes, 156 Pa. Superior Ct. 196, 40 A.2d 108 (1944), held that where a husband provided a home for his wife and where the wife left, rented another house, moved all the household goods thereto, and left a note at the old address impliedly inviting her husband to join her but where she did not return to her husband that the husband was entitled to a divorce on grounds of desertion. The situation in Barnes, supra, is very similar to the case at hand. Although the appellant had hinted at various times that she would be willing to reconcile with her husband she always maintained, even at the hearing before the court,

[ 231 Pa. Super. Page 290]

    that such reconciliation could only be accomplished upon his submission to her choice of homes.*fn2 Therefore, her attempts at reconciliation, if they can be called such, were always conditional upon a factor which the law of Pennsylvania has always held to be the husband's prerogative and responsibility, i.e., providing a home for his family. Since no attempt at reconciliation on the part of the husband is needed when the wife leaves the marital domicile, Sacks v. Sacks, supra, and since we find that the wife's conduct fell short of ...


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