Divorce — Desertion — "Constructive desertion" — Evidence — Sufficiency.
1. In a divorce proceeding, instituted by the husband on the ground of desertion, in which it appeared that plaintiff testified that his wife ordered him out of the home, and that the master found in favor of the plaintiff, but the court below concluded that the evidence was insufficient to establish the desertion and dismissed plaintiff's complaint, it was Held that the order of the court below should be affirmed.
2. In order to establish a so-called "constructive desertion" as grounds for divorce, the innocent spouse must show that he or she was wilfully or maliciously put out of the common home by force or justifiable fear of immediate bodily harm or locked out against the will or without consent of the innocent spouse and that such a condition has persisted for two years.
3. The burden is upon the plaintiff to prove his case by a preponderance of clear and satisfactory evidence.
Argued December 8, 1958.
OPINION PER CURIAM, March 18, 1959:
In the disposition of this appeal we find ourselves in agreement with the lower court. The court well might have stressed other pertinent facts which support the conclusion that the husband here was not excluded from the marital home but that he separated from his wife voluntarily in 1951, as he had done on at least two other occasions in 1947 and 1949. For example, from his insistence on a split-up of a joint bank account in 1946, it is a fair inference under the circumstances that he even then contemplated separating from his wife. The lower court however adequately disposed of the case. Accordingly the order dismissing the plaintiff's complaint is affirmed on the opinion of Judge CURRAN, reported in 16 Pa. D. C. 2d 258.