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Beighley v Beighley. Divorce -Providing New Home-Wife's Refusal-Good Faith—-Province

of the Court.

It is ordinarily the duty of the wife to follow her husband to his new abode and it is not for the Court to determine whether he should or should not make such a change; but the wife is not under all circumstances thus obliged to follow her husband; and when he seeks to base a decree in divorce upon her refusal to obey, the Courts must scrutinize every fact and condition which may throw light upon the question of the bona fides of the husband in demanding such obedience and consider all the conditions existing which may in some circumstances warrant a .wife's refusal. to comply. The burden is cast upon the husband to convince a chancellor that he had provided a proper and suitable new abode and that the wife's refusal to go there was unwarranted, and therefore constituted desertion.

A husband who seeks a divorce from his wife on the ground of her refusal to follow him to a new abode, must in fact have procured and prepared for occupancy a place of abode, reasonably equipped as a home and fairly comfortable under all the circumstances; that he must have intended in good faith to make it not only his wife's but his own home, and to go there with his wife to aid in establishing the home. When libellant failed to meet the burden of proof as to the desertion of his wife, a decree was refused.

After respondent's refusal on April 10, 1917, to remove to a farm, libellant removed his own personal belongings, consisting of clothing and including a piano, and from that time down to the present had never lived with his family, but lived in various boarding places, moving from place to place. The wife's conduct did not justify libellant to act as he did and was not such a wilful desertion as would support a decree in divorce on behalf of the husband.

In Divorce. No. 1147 April Term, 1919. C. P. Allegheny County.

John N. English, for libellant.
R. P. & M. R. Marshall, for respondent.

REID, J., February 2, 1920.- The libellant in this case charges that respondent deserted him on April 10, 1917. The particular act of desertion upon which he bases his averment consisted in respondent's refusal at the date mentioned, or within a few days thereafter, to leave the common habitation of the parties in the borough of Swissvale and remove to a farm in Ligonier Township, Westmoreland County, near the village of Laughlintown, which farm libellant had rented three weeks before.

Much testimony was taken which does not directly aid in determining the real question in the case, but does assist in presenting the "atmosphere" surrounding the parties and, in a certain measure, thereby furnishes a key to their conduct, purposes, and views at and before the time of the alleged desertion.

That the parties had not lived happily together for years before April 10, 1917, is plainly evident. Which of them was originally to blame for this condition, need not be decided. There was complete lack of harmony between the parties and between the father and the boys of the family, at least those whose conduct is touched upon in the testimony. They were not as dutiful to their father as they should have been, but were attached to and largely under the control of the mother.

The father contends that the boys were disobedient, idle, and extravagant, and that they helped by their conduct in and about his store and through a disposition to take money from the till to render his business unprofitable. This condition and the alleged extravagance of the family and the alleged difficulty of maintaining them, are assigned by libellant as reasons for his having disposed of the business. He maintains that he was embarrassed financially, but nevertheless he sold his store for a fair price—$2,400.00 (although he claims that he did not receive payment in full for it). He owned the residence in which the family lived, the store

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room in which he had previously transacted his business, and a garage. This during the year 1917 produced a revenue of $57.00 per month, not including the value of the residence occupied by the family.

No proof was made of the estimated value of the real estate, which was subject to a $2,000 mortgage, but down to the date of the hearing before the Master libellant had no difficulty in keeping the interest paid and preventing foreclosure proceedings. He continued to own the property, receive the rental from it, and in addition to that, although he claims to have been earning but $75 per month in the early part of 1917, as an employee at one of the Westinghouse shops, he in fact during the year 1917 received as wages $1,147.74, and during the year 1918 the sum of $2,797.55.

It would therefore appear that at the time of the alleged desertion and since that libellant was and continued to be in fairly comfortable financial circumstances and that there was no urgent requirement that he should remove his family from Swissvale to a rural locality on account of his finances.

The respondent attributes the conduct of the boys as well as the father's retiring from business to his domineering and exacting conduct towards his sons and the family and his failure to properly look after his own affairs. So far as the effect of the withdrawal of libellant from active business is to be considered, it will be seen that he had sold out in 1915 and that he had been out of business for practically two years before the date of the alleged desertion. The family, including the libellant, had lived in the house in Swissvale, belonging to the libellant, for about thirteen years before the proposed removal to the farm. The libellant maintained the family and contributed to their support until the date of the alleged desertion, although he contended that they were extravagant. After that time, he never contributed to the support of his wife or children until he was compelled to do so by an order of Court. Both before and during that period and since, the three older boys, who had gone to work, devoted their earnings in part at least to helping to pay the household expenses. They paid their mother for their board. The father demanded that their wages be paid to him, and their refusal to comply with his request was one of the causes of his dissatisfaction.

Before April 10, 1917, libellant had occasionally expressed a wish to move to a farm, but the matter had never been seriously discussed between the husband and the wife and she had no previous knowledge of her husband's intention to rent the farm in question. Her first knowledge of the proposed move was on April 10, 1917, when he informed her of the fact that he had rented a farm of sixty-five acres near Laughlintown and asked her to remove to it.

As we have already indicated, there seemed to be at that date no urgent reason for the libellant, who was then fifty-two years of age and who had not been on a farm for many years, and for his wife, who was then fiftythree years of age and who had never been engaged in farming or had lived upon a farm, suddenly removing from the conveniences, comforts, etc., to which they had been accustomed for many years to a remote place where they would be entire strangers.

We recognize the right of the husband to change his domicile and that it is ordinarily the duty of the wife to follow her husband to his new abode and that it is not for the Court to determine whether he should or should not make such a change; but the wife is not under all circumstances thus obliged to follow her husband; and when he seeks to base a decree in divorce upon her refusal to obey, the Courts must scrutinize every fact and condition which may throw light upon the question of the bona fides of the husband in demanding such obedience and consider all the conditions

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us to

existing which may in some circumstances warrant a wife's refusal to comply. In any event, the burden is cast upon the husband to convince a chancellor that he had provided a proper and suitable new abode and that the wife's refusal to go there was unwarranted, and therefore constituted desertion.

The Master has found that the husband's demand upon his wife to remove to the Ligonier Township farm was not made in good faith but was merely an attempt to lay grounds for alleging desertion, and he has reconmended that the libel be dismissed. Exceptions to his conclusions and recommendations have been filed, and the duty is now imposed on examine the testimony de novo and to arrive at and determine all the merits of the controversy regardless of the Master's conclusions.

We have closely scanned the testimony, and the result is that we have determined that the Master was justified in finding and reporting as he did. We do not intend to condone any misconduct of the respondent or her children. We are, however, convinced that the facts as to the alleged desertion point to but one conclusion—that when libellant on April 10, 1917, by verbal demand, and on April 18, 1917, by registered letter, demanded that his wife remove to the farm in question, he was not acting in good faith but was merely seeking to pave the way to a divorce.

One of the uncontroverted facts in this case is that from about August or September, 1912, down to the date of the alleged desertion, the libellant and his wife had ceased to cohabit as husband and wife, she having then left his bed and never having returned to it. He says upon the subject:

"Q. Did she return at any time after that? A. No; never did. I told her at the time she never should. She left

me too many times before, and I told her that was the last time.” Not only did libellant not occupy the same bed or cohabit with his wife, but for a long time, although he lived in the same house with his wife and family and had his meals at the same table, the parties did not speak to each other or have any amicable relations. Whether through the fault of the libellant or the respondent, or both, the fact is that he was a stranger in his own house.

The result of the foregoing facts is to convince us that the relations were so strained and had so long continued to remain in that unfortunate state that the husband, in making the proposal or demand that his wife remove to the farm, did not and could not have had in view the resumption of marital relations in the new home. He specifically says upon the subject of cohabitation, as already quoted, "I told her at that time that she never should (return).”

The farm which he had rented had not been tilled for a year nor had the house been occupied for that period and was to extent dilapidated, some repairs, however, having been made to render the house tenantable. But even if the house were in fair condition and the farm of sixtyfive acres may have been such as could have been used by the family, it sems to us that libellant should have given his wife a fair opportunity for consideration of the proposed change, and that when he, without any previous notice, on April 10, 1917, demanded that she remove from her home to the farm, without giving her time for reflection or preparation, he was acting hastily, if not arbitrarily.

Promptly after such demand, he brought a man to the home to look at the household goods for the purpose of estimating the cost of hauling them to the new location, at which time the wife, who had already declined to go to the farm, refused to allow her husband to remove anything belonging to her. He assigned this refusal to permit the removal of the

some

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bulk of the household goods as a reason for his not furnishing the farmhouse.

After respondent's refusal on April 10, 1917, to remove to the farm, libellant removed his own personal belongings, consisting of clothing and including a piano, and from that time down to the present has never lived with his family or occupied the Swissvale home. He has lived in various boarding houses, moving from place to place, including a residence of some months in Akron, Ohio, but has never had a definite home or abode to which he could invite his wife or family or to which his wife might go and ask to be permitted to again take up her wifely relationship and duties.

Immediately after respondent's refusal to go to the farm, libellant visited the farm and spent two or three days there, although he did not remove his property to it or formally occupy it. He then returned to this county and immediately, as he admits, consulted a member of the Bar and procured him to write a letter to his wife notifying her that she was required to remove to and take up her home on the Ligonier farm (which she had previously declined to do), and, in event of refusal, notifying her to surrender up possession of his Swissvale house, which she and her family then occupied. He was careful to register this letter and offered in evidence the returned registry receipt as proof of its delivery to respondent. The letter was not produced, but the substance of it, as testified to by both libellant and respondent, was as above stated. It does seem to us that this last demand was clearly intended to strengthen his position with regard to a divorce, and was made not for the purpose of being accepted and to permit his wife to once more become his wife in reality, in a new home and under more favorable circumstances, but for no other purpose than to elicit from her a refusal.

After his removal from the family home and down to the time of the hearing in this case, libellant never occupied the farmhouse as a place of residence or a home. He spent a few days there during the spring and summer of 1917, but did not attempt to do any farming; he continued to live in Wilkinsburg, or elsewhere, and to be employed at the Westinghouse Electric & Manufacturing Company's plant. The lease expired by limitation March, 31, 1918, without libellant ever having been a real, genuine, bona fide occupant of and resident on the farm.

We are impressed with the fact that a husband who seeks a divorce from his wife on the ground of her refusal to follow him to a new abode, must in fact have procured and prepared for occupancy a place of abode, reasonably equipped as a home and fairly comfortable under all the circumstances; that he must have intended in good faith to make it not only his wife's but his own home, and to go there with his wife to aid in establishing the home.

In this case, however, that was not the libellant's purpose. The testimony clearly indicates that he merely intended that his wife should remove to the farm and that he would follow her at some later and indefinite time. At the time he sent the registered letter to his wife, he was not at the farm, but was then boarding at No. 1004 Ross Street, Wilkinsburg, to which he had removed on April 10, 1917, or thereabouts. He explained (Testimony, p. 31) that he could not remove to the farm because he had bills remaining unpaid, and that if he had gone his creditors would have foreclosed on him, and that by staying here they knew he was making an honest effort to make good. He further says (Testimony, p. 32) that he intended to stay here a few months to attend to his bills.

It is therefore clear that there was no present purpose on the part of the husband to make the farm his home, and that he merely purposed getting his wife there, if he could, to get along as well as she could without

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his aid, while he remained in the vicinity of his old home, to look after his own affairs, for his own purpose, and to join his wife when he saw fit to

do so.

We do not believe that such conduct constitutes the providing of a new domicile, such as the law contemplates. The wife who is asked to go to such a new home is entitled to the presence, aid, and comfort of her husband, and cannot be forced to accede to what is a mere proposed plan to establish a home without a substantial attempt on the part of the husband to make it what it should be an actual and practicable place of abode.

The wife's answer to the demand that she remove to the farm is given at pages 94-5 of the testimony; and as her credibility is prima facie at least as good as that of her husband, we must accept her statement as worthy of belief. Se says "Q. Mrs. Beighley, will you state in your own way the circumstances

under which he informed you he had rented a farm ? A. Well, he said he had rented a farm and intended to move on it, and

I said I felt I could not go to do farm work, that my work where
I was living was more than I was able to do, and much less did
I feel able to do farm work; and aside from that, I had been af-
Aicted with rheumatism and I felt farm work would not be the
place for me; and aside from that, my children were in school, and
I also knew facilities in town are much better than in the country;
and my second daughter wanted to go through High School, and
I felt I did not want to make the change. Aside from that, I knew

the older children would not go with him.” In considering the good faith of this reply, we must bear in mind that the wife had been the mother of nine children, six of whom were living at or about the time of the demand for her removal, and that she was burdened with the care of the family for many years and was not, by reason of her advancing years and her labors, as well able to take up the burden of life on a farm as she would have been at an earlier period.

We have already discussed the fact that they did not cohabit or have marital relations with each other and that they were living practically as strangers under the same roof. Would it be reasonable under those circumstances for her to assume that the husband, by his demand for her removal to a new home, intended to treat her in the future as a husband should, with affection and respect, and to win her back to the confidence and mutual regard which it is presumed their earlier years afforded; that he in good faith proposed to make a new home, to take his wife there, and, as it were, to begin life anew under happier and more favorable circumstances, and for each to forget the past? There is nothing in the testimony to indicate any such purpose on his part. That he was without affection or regard for his wife (whether justly or unjustly we do not attempt to determine), is evidenced by the fact that from the time he left her home on April 10, 1917, he never returned to visit his wife or his family except on two occasions when the death of his daughters called him home.

In considering this case, we must bear in mind that the burden is upon the husband to show wilful and malicious desertion, and to convince the Chancellor that he was justified in demanding his wife's removal to the new home. We agree with the Master that the libellant has failed to meet this requirement, and we have determined, as already stated, that his offer was not made in good faith. It therefore follows that the Master was right in his conclusions, and that his report recommending the dismissal of the libel at the cost of the libellant should be approved.

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