Van Dyke v. Van Dyke , 135 Pa. 459 ( 1890 )

Opinion,

Mr. Justice McCollum:

We agree with the learned judge of the Common Pleas, that incompatibility of temper is not a cause for divorce in Pennsylvania, and we may add that it will not justify an abandonment by the husband or wife of his or her marital obligations and duties. If there is anything settled in the law of divorce, it is that the reasonable cause which will justify a desertion must be such as will authorize a dissolution of the marriage bond. Where a desertion is conceded or appears, and is without sufficient legal reasonable cause, it is presumed to be wilful and malicious, and, if persisted in for two years or more, will entitle the injured party to a divorce. In this case there was a desertion by the wife deliberately planned, and continued for more than four years before the libel was filed. Without notice to her husband, she rented and moved into another house, and on the following day caused his arrest on the charge of desertion, and, while he was in the custody of the officer or in prison, removed all the furniture from his house, except that which pertained to his bedroom. Whether the arrest was a device to enable her to get possession of the furniture without opposition from him, or the charge of desertion was honestly made and prosecuted, we do not know, as the record of that proceeding is not before us. The learned master to whom the case was referred found that her desertion of her husband was wilful and malicious, and without reasonable cause. The learned judge, on exceptions filed to the master’s report, concluded that “neither wilful and malicious desertion, without cause, nor a case bf cruel and barbarous treatment,” was proved; that “neither moral wrong nor personal violence ” was shown; and that what did appear was “incompatibility of temper, which is not recognized by our law as á cause for divorce.” But a desertion without consent or reasonable cause is presumed to be wilful and malicious, and incompatibility of temper is not a legal justification of it: Ingersoll v. Ingersoll, 49 Pa. 249; McClurg’s App., 66 Pa. 366; Bealor v. Hahn, 117 Pa. 169; Detrick’s App., 117 Pa. 452. As, in the presént case, there was a deliberate, continued, and undisputed desertion by the wife of her husband, the material inquiry was whether she had reasonable cause for it; and, inasmuch as the master and court substantially agreed that she had not, we cannot see upon what ground the prayer of the libellant was refused.

We have examined and considered the evidence, and are convinced that the findings of the master are well sustained by it. The respondent alleged, as a justification of her abandonment of her marital duties, that her husband did not properly provide for his family. She testified in her own behalf, and called to the witness stand her sons John and George, and her daughter Mary, to corroborate her statement. She said: “ I left my husband because he failed to support me and my family. I was compelled to leave him for that reason. He would not give me any means whatever. Of course, he paid the rent. He gave me no money towards providing the table for eight or nine months before I left.” John said: “The only reason my mother left my father was because he did not provide any support for her, and she could not keep the house on the money she was getting from the boarders.” George said: “ The reason she left was because she did not get support; she did not, for about three or four months.” And Mary said: “ She left because lie would not support tbe family, and we hadn’t any peace.” 'The libellant, in his own behalf, said: “ I always paid the rent, coal, light, bread, and milk bills. I did not pay the butcher’s bills. Towards the last my wife had an income of $22.50 a week from five boarders. I helped to clothe two of the youngest children, Carrie and Mary. I helped to clothe my wife up to January, 1884..... She did not give me anything to eat. She took my knife and plate from me because I would not pay my board the same as boarders, although I was then making the payments I mentioned.” His son Charles said: “My father paid the rent and coal; I can’t say as to the rest. My mother said father did not pay his board; that he would get nothing to eat. She said that she could not put up with it any longer; that if he did not pay his board, she would leave.” Lucas Glaesser testified that he furnished the bread for the family for three years, and up to the time the respondent left, and that the libellant paid him for it. The respondent further said: “ For the period of ten months my husband did not eat at home; I refused to give him anything to eat for ten months; I had nothing to give him.”

The foregoing extracts from the testimony clearly show that the cause of the desertion by the wife of her husband was his alleged inability or unwillingness to provide for his family as she thought he ought to, and that she excluded him from the table and denied him meals in his own house, when he declined to accept the position of a boarder therein. It is by no means certain that he refused to contribute to the support of his family according to his ability. The evidence on this point is conflicting, and the learned master reported that he could not find from it “ that the libellant had been derelict in his duty in that behalf.” There was some evidence of altercations between the parties, in which the husband used harsh and opprobrious language, but, as it distinctly appears from the testimony produced by the respondent that she left him because of his alleged failure to provide for his family or to pay his board in it, we need not discuss matters which were incident to, or the outcome of, the principal grievance. It is sufficient to say of the whole evidence that it presents a case of wilful and malicious desertion without reasonable cause. The time has not come when the refusal of a husband to become a boarder in his own home will entitle his wife to a divorce, or justify her abandonment of him.

The proceeding in the Quarter Sessions is not a bar to this action: Bealor v. Hahn, 117 Pa. 169.

The decree is reversed, at the cost of the appellee, and it is ordered that the record be remitted, with instructions to enter a decree for the libellant.