Swantkowski v. Swantkowski

Citations

• 80 Pa. Super. 400
• 1923 Pa. Super. LEXIS 170

Syllabus

<p>Divorce — Desertion—Separation by wrongful act of libellant— Libel prematurely filed — Jurisdiction.</p> <p>In the trial of an action of divorce, it appeared that the wife of libellant had brought a charge of desertion and nonsupport against her husband. On the day designated she left their common domicile in the morning to attend the hearing and in the afternoon she returned. The libellant locked the doors, refused to admit her, and drove her away. The good faith of her attempt to return and continue her relations with him was not questioned.’</p> <p>Six months subsequent to this incident a libel charging desertion was filed by the husband. The court’ below ruled that since it appeared that the libellant had attempted to induce the respondent to return, which she refused to do, the desertion should be dated back to the date of the actual separation, and that ■ the action, therefore, was properly brought within the provision of the 5th section of the Act of 1850, P. L. 590, authorizing an application at any time not less than six months after the cause of divorce shall have taken place. Held: the libel was filed too soon and the court had no jurisdiction.</p> <p>The intention to desert may be known by the declarations of the parties, but the intention cannot supply the absence of the act. A wife may intend to desert her husband and declare that intention, but desertion only occurs when she actually leaves him.</p> <p>The husband’s wrongful act in denying his wife admission to their home cannot afford the basis of proving that she maliciously and wilfully deserted him on the date of such act.</p>