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PAUL W. HERWIG v. NATALIE M. HERWIG (06/27/80)

filed: June 27, 1980.

PAUL W. HERWIG
v.
NATALIE M. HERWIG, APPELLANT



No. 1136 April Term, 1978, Appeal from the Order Entered on the 30th day of June, 1978, of the Court of Common Pleas, Family Division, Allegheny County, at No. 1388 October Term, 1975.

COUNSEL

Norma Chase, Pittsburgh, for appellant.

Blair J. Harkett, McKeesport, for appellee.

Spaeth, Van der Voort and Watkins, JJ.

Author: Watkins

[ 279 Pa. Super. Page 67]

This is an appeal from the Order of the Court of Common Pleas of Allegheny County, Family Division, by the wife-appellant, Natalie M. Herwig. The lower court order granted the husband-appellee a divorce on the grounds of desertion.

The parties were married in 1958. Appellant testified that she left the marital abode on April 9, 1971. Appellee testified that she left on Good Friday of 1970. In either case it is undisputed that the wife removed herself from the marital abode. The only question on appeal is whether she was justified in doing so.

After their marriage the parties lived together for about a year and a half. From 1960 to 1970 the appellant spent most of her time living with her mother or brother. She would only come home on occasion. The appellee testified that the appellant resided with him for only about one and one-half years during the ten year period from 1960-1970. Appellee worked as a truck driver during this period and

[ 279 Pa. Super. Page 68]

    although appellant had asked him to come to live with her mother appellee refused stating that it would interfere with his job.

Early in 1970, the appellee had a disabling stroke and appellant returned home to care for him, bringing her invalid brother to reside with them. (Her mother had passed away.) According to appellee's testimony the appellant left the abode on Good Friday, 1970 taking her brother with her. Although her brother died shortly thereafter, she refused to return to appellee and on September 16, 1975, the appellee filed an action in divorce against her. On August 11, 1977, the Master's Hearing was held and on June 30, 1978 the court below, accepting the Master's recommendation, granted the divorce. Appellee died on September 19, 1978, subsequent to the time of the filing of this appeal. However, the determination of property interest prevents mootness.

It was also established that on the day appellant left appellee he had informed her that he had fathered an illegitimate child in 1939 which fact he had never revealed to her previously. Appellee also testified that he had called his wife on several occasions and had attempted to get her to reconcile with him but had been rebuffed by her.

The appellant presented testimony to the effect that she and appellee had a good marriage, that she only went to live with her mother for eight months in 1964 until her mother died, that after that time the only time that she went to live with her relatives in Pittsburgh was when her husband would tell her to go back to Pittsburgh. She also testified that he would go to Florida to visit his mother several times a year and would stay for a week or two at a time and that much of his time was taken up by his Legion activities. Regarding the incident that resulted in the separation, the appellant testified that it occurred in April of 1971 after the appellee had told her of his illegitimate child for the first time and had also told her that "it would be better if she didn't live in his house anymore and ...


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