Horn v. Horn ( 1901 )

Opinion by

Rice, P. J.,

The legal proposition upon which the appellant’s counsel rests is that a husband has a right to change his home, if his business, his comfort or his convenience require it, if he provides another suitable place of residence, and if his wife refuses to accompany him to his new home without cause, her refusal constitutes a desertion, for which a divorce will be decreed. We concede the correctness of this statement of the law, as a general proposition, but in applying it to the facts of the case it is also to be borne in mind that to justify a decree of divorce on the ground of desertion, there must be a clear intention to desert, wilfully and maliciously persisted in without cause for two years. It may be that the respondent preferred not to go to Pittsburg, but that she refused without cause to follow her husband to that city, and persisted in that refusal for two years, is.not satisfactorily established by the evidence. The fact that she did not go is not conclusive upon the question of intention. There may be circumstances which will rebut the presumption of an intention to desert which otherwise might arise from the failure of a wife to follow her husband to his new home. See Bishop v. Bishop, 30 Pa. 412; Angier v. Angier, 63 Pa. 450. We think the court was clearly right in concluding from the oral testimony and the correspondence of the parties that such presumption was rebutted in the present case. We need not discuss the assignments of error separately. The findings of fact set forth in the opinion of the learned judge below are warranted by the evidence in all essential particulars and upon the whole evidence he was warranted in concluding that a case of wilful and malicious desertion on the part of the respondent was not made out. We see no necessity for prolonging this litigation, therefore the appellee’s motion to continue the cause is overruled.

The decree is affirmed, the costs in the court below and in this court to be paid by Andrew Horn, the appellant.