King v. King

Citations

• 36 Pa. Super. 33
• 1908 Pa. Super. LEXIS 106

Syllabus

<p>Divorce — Desertion—Separation—Intent.</p> <p>Desertion is an actual abandonment of matrimonial cohabitation, with intent to desert willfully and maliciously persisted in without cause for two years. The guilty intent is manifested when, without cause or consent, either party withdraws from the residence of the other. The guilty intent to desert is rebutted where the separation is encouraged by the other party, or is by mutual consent.</p> <p>Mutual consent to the separation, not revoked by either party, is as fatal to an application for divorce upon the ground of desertion, as would be acts on the part of the libelant which would give the respondent legal cause to leave him, and to obtain a divorce from him.</p> <p>What may have been desertion in its inception, but has become a separation with mutual consent within two years, is not ground for divorce.</p> <p>The mutual consent that will prevent a divorce upon the ground of desertion may be inferred from the conduct of the parties, and need not be put in the form of a solemn written agreement.</p> <p>Divorce — Findings of fact — Review by the appellate .court — Evidence— Appeal.</p> <p>In reviewing the evidence brought up on an appeal from a decree refusing a divorce after trial in open court by a judge, where the evidence is in irreconcilable conflict, and the correct determination of the issues-of fact depends upon a determination of the veracity of witnesses who have given opposing testimony, the appellate court will, amongst other things, consider and give weight to the fact that the judge who saw and heard the witnesses and observed their manner of testifying had a much better opportunity than the appellate court to form a correct judgment as to their credibility.</p> <p>Desertion — Alimony—Counsel fee.</p> <p>The court in entering a decree refusing a divorce, may at the same time make absolute a rule on the libelant, the husband, to pay the respondent, the wife, reasonable alimony pendente' lite and counse