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decided: October 20, 1978.


No. 288 April Term, 1977, Appeal from the Order of Court dated November 8, 1976, of the Court of Common Pleas of Allegheny County, Pa., Family Div. at No. 1017 Jan. Term 1973.


Vincent C. Murovich, Jr., Pittsburgh, for appellant.

Andrew C. Van Gorder, Pittsburgh, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Van der Voort and Spaeth, JJ. Jacobs, President Judge, dissents. Watkins, former President Judge, and Hoffman and Price, JJ., did not participate in the consideration or decision of this case.

Author: Spaeth

[ 259 Pa. Super. Page 73]

This is an appeal from an order granting a husband a divorce. The testimony was taken by a master, who recommended that the husband "be awarded a divorce . . . [on the ground] that he has suffered a constructive desertion, to wit, that [his wife] locked him out of his house without justification and without his consent, and that further her refusal to let him return persisted for a period of

[ 259 Pa. Super. Page 74]

    two years." Master's report at 7. The lower court stated that "after an independent review of the evidence de novo . . . [citations omitted] we see no reason to disagree with the findings and conclusions of the Master and, therefore, accept his recommendation." Opinion of lower court at 2. Appellant argues that the findings and conclusions of the master are unsupported by, and contrary to, the record. We agree with her, and therefore reverse and dismiss the action.

Albert and Ruby Wiegand were married in 1947. They had two sons and lived together until May, 1966, when appellant had her husband arrested. After one unsuccessful attempt to return home, appellee moved in with his mother, a block away; since then he has lived with his mother. Appellee filed his action in 1972, alleging indignities. In 1973 he amended his complaint to allege constructive desertion, and apparently it was only on this ground that the action proceeded; neither the master nor the lower court made any findings regarding, or even discussed, the allegation of indignities.

In examining appellant's contention that the master and the lower court erred in finding constructive desertion,

     we bear in mind the scope of our review:

(1) even though the master before whom the testimony was taken, because of the opportunity afforded him to hear and to observe the witnesses, was in a better position than this Court to pass upon the credibility of such witnesses, the findings of the master, although entitled to due consideration, are not controlling or binding upon us: (Nacrelli v. Nacrelli, 288 Pa. 1, 6, 7, 136 A. 228 (1927); Smith v. Smith, 157 Pa. Super. 582, 583, 584, 585, 43 A.2d 371 (1945); Langeland v. Langeland, 108 Pa. Super. 375, 379, 380, 164 A. 816 (1933); Law of Marriage and Divorce in Pennsylvania, Freedman, (2d ed.) vol. 3, ยง 654 and cases therein cited); (2) except where a jury has rendered the verdict, this Court in a divorce action must review all the evidence and from such review determine whether the ground alleged as a cause for divorce has been legally established (Bobst v. Bobst, 357 Pa. 441, 444, 54 A.2d 898

[ 259 Pa. Super. Page 75]

(1947); Esenwein v. Esenwein, 312 Pa. 77, 80, 81, 167 A. 350 (1933)).

Zimmerman v. Zimmerman, 428 Pa. 118, 121, 236 A.2d 785, 787 (1968).

And see Coxe v. Coxe, 246 Pa. Super. 231, 369 A.2d 1297 (1976) (Concurring opinion, collecting cases). In deciding "whether the ground alleged . . . has been legally established," the rule we must apply is as follows:

The doctrine of constructive desertion is recognized in Pennsylvania. Zorn v. Zorn, 382 Pa. 319, 114 A.2d 907 (1955); Schwertz v. Schwertz, 197 Pa. Super. 255, 177 A.2d 139 (1962). As this Court stated in Schwertz, "[a] case of desertion is established where a wife locks her husband out of the house without justification and without his consent, refuses to let him return, and persists in such a refusal for a period of two years." Id., 197 Pa. Super. at 258, 177 A.2d at 141. This action must be willfully and maliciously undertaken and must be without the consent of the innocent spouse. Foley v. Foley, 188 Pa. Super. 292, 146 A.2d 328 (1958); Reiter v. Reiter, 159 Pa. Super. 344, 48 A.2d 66 (1946).

Cammann v. Cammann, 217 Pa. Super. 376, 379-80, 272 A.2d 241, 243 (1970).

[ 259 Pa. Super. Page 76]

The master found that after appellant had had appellee arrested, in May 1966, she had locked him out of his house. The master acknowledged that there was conflicting testimony as to whether or not appellee had a key, and as to whether or not the lock had been changed. Master's report at 4. If indeed, as appellant and the two sons (ages 25 and 24 at the time of the hearing) testified, appellee did have a key and the lock had not been changed, it is difficult to understand how one could find that he had been "locked out". See N.T. 42, 49, 50, 65, 70, 81, 82, 103. However, the master found it unnecessary to resolve the conflicting testimony because, he said, appellant's "[t]hreat of arrest (Foley) [ Foley v. Foley, 188 Pa. Super. 292, 146 A.2d 382 (1958)] or mere communication to the husband that the family house was closed to him (Cammann) [ Cammann v. Cammann, Page 76} supra ] is enough to constitute a 'locking out'". Master's report at 4. Rather than resolve the conflicting testimony ourselves, we shall assume for the sake of discussion that appellant did, at least in some sense, "lock" appellant out of his house, and shall proceed to the critical issue in this case, which is whether appellant's action was "without justification". Cammann v. Cammann, supra.

Appellant described the background of the May 1966 arrest as follows:

Q. Did you and your husband have any difficulties prior to this?

A. Yes, there had been difficulties before this.

Q. Of what type?

A. Oh, the arguments and the pushing and shoving and the hitting. And Mr. Wiegand would come over sometimes, my father-in-law. Mrs. Wiegand never came over.

Q. Approximately when did these misunderstandings begin?

A. Say two, three years before 1966. Albert wouldn't work. He did not pay the last two or three years of the mortgage. My father-in-law and mother-in-law paid for the home. We wouldn't have had the house if they didn't pay the mortgage.

Q. He wouldn't work? What do you mean by that?

A. He wasn't interested in working. He wanted to be loaded all the time and not do nothing.

Q. What do you mean by loaded?

A. Drunk. Drinking.

Q. Was a quantity of alcoholic beverages kept on the premises?

A. Well, I would say that Albert managed to have a case of beer probably every other day, plus his whiskey.

Q. Was this something that he did continuous, or something that happened prior to the separation, or --

A. He would drink pretty steady for a while and then he would get sick and lay off for a couple of weeks,

[ 259 Pa. Super. Page 77]

    maybe two, three weeks, and try to get along. Mrs. Wiegand tried to help him. Ray tried to help him. I had to help. My father-in-law tried to help him. We did everything we could for him.

Q. Now, during this period prior to 1966, were you being supported by your husband?

A. When my husband worked I got some money, yes.

Q. Did he work steadily for any period of time prior to this incident in May of 1966?

A. When he was able to he worked.

Q. Now, you say when he was able to work, what do you mean by that?

A. Well, when he would be himself and sober he would go over and work in the restaurant for his mother. He relieved the bartender and did the table work or do whatever Mrs. Wiegand wanted him to do.

N.T. 44-46.

Appellant also testified that appellee was an alcoholic, and that "whenever he would be drinking he would become abusive." N.T. 52. She testified that several times before May 1966, when appellee had been particularly drunk and abusive, she had had him arrested:

Q. Now, did you ever have your husband arrested on any occasion prior to this one in May of '66?

A. Yes.

Q. What was the nature of those arrests?

A. Same problem, the drinking and abusiveness.

Q. You say abusiveness. Will you be a little more specific about that?

A. Just that he would be nasty with me and hit me, and this arguing over anything at all that I would have to leave the house. That's all.

Q. And on these occasions would you call the police?

A. Yes. I had the police maybe three times to take him out of my home.

Q. On each one of those occasions you say he had been drinking and abusive?

[ 259 Pa. Super. Page 78]

A. Right.

Q. Did they also involve any physical contact?

A. Yes.

Q. Well, how were you able, if your husband was involved in physical contact with you, how were you able to call the police?

A. I would run out of the house and call the police from the neighbor's. The man always had the door locked. Maybe one of the children would come down and open the ...

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