Court of Common Pleas of Montgomery County

Oxnam v. Oxnam

Husband and wife were living together in an apartment which they were compelled to vacate. They then agreed that he should go with his mother and she should go, with her relatives. In order to re-establish the home, the husband imposed certain conditions which the wife held under consideration. Subsequently the wife begged her husband to establish her home, and if her request would be complied with she would cease her employment. The libel in divorce set a date for the desertion which, under the evidence, was nothing more than separation, and under the facts as fully established by the testimony, as found by the Master, there was not such a wilful and malicious desertion as would entitle libellant to a divorce.

An offer to establish a home must be made in good faith in order to begin the running of the period necessary to obtain a divorce on ground of desertion.

The allegata and probata in the libel sur divorce must agree, otherwise libel must be dismissed.

No. 10, October Term, 1918.

Divorce.

Theo. Lane Bean, Attorney for Plaintiff.

Larzelere, Wright & Larzelere, Attorneys for Defendant.

Opinion by Swartz, P. J., January 19, 1920.

The Master found that the petition should be dismissed upon two grounds: first, that the desertion did not begin on October 22, 1916, as alleged in the complaint; and, secondly, that even if this objection could be waived, the evidence did not show that the wife had committed wilful and malicious desertion.

At the hearing and argument before the Court counsel for the libellant endeavored to show that the Master was in error in reaching these conclusions.

The parties were married on March 4, 1916, after an acquaintance of six months. Before marriage Mrs. Oxnam lived in Philadelphia and was employed in that city as a stenographer and bookkeeper, receiving compensation at sixty-five dollars per month. Mr. Oxnam lived in Norristown, and was earning eighty-five dollars per month in said borough.

The parties agreed, before marriage, that they would go to house keeping in the said borough, but that the wife was to con

Oxnam v. Oxnam.

tinue her employment in Philadelphia until the husband had established himself and completed the house or bungalow that was in process of construction at Audubon. He had to pay certain monthly installments for the cost of the lot and building.

They rented house keeping rooms in an apartment building, and continued to occupy the same until August 31, 1916. The wife continued her Philadelphia employment during all this time. There were no disputes or quarrels during this period, except that the husband complained that the wife could not give proper attention to her home duties as long as she continued to make her daily trips to Philadelphia. He asked her to give up her position and find similar employment in Norristown. She claimed that she could not obtain the wages in Norristown that she was then receiving in the City. The wife made some inquiries concerning employment in this borough, but the husband made no efforts to find a position for her. He asked her to make a trial in Norristown. She answered that then she might lose her Philadelphia position, and that her wages were needed to pay for the bungalow, furniture, and other needs.

They placed their earnings in a common box, and there was not enough surplus at the end of any month to show that they could meet their assumed obligations without her earnings.

Their landlord notified them to quit because there was too much noise in their rooms. The members of a boat club were in the habit of visiting the Oxnam apartments. There is no proof that the wife was any more responsible for these noises than her husband.

Each requested the other to procure a new home. Nothing was done by either, and when the time for leaving the apartments ar rived it was agreed that the husband should go to his mother's home in Norristown, and that the wife should live with her relatives in Philadelphia until other arrangements could be made.

This was a separation by mutual consent, and not a desertion on the part of the wife.

Between August 31 and October 22, 1916, the wife made three visits to see her husband at the home of his mother where he resided. She remained all night on each occasion, and they occupied the same bed. On each visit the subject of renewing their house keeping was discussed. The husband, however, imposed conditions. under which he would resume living with his wife.

There was a controversy as to these conditions so imposed by the husband. The correspondence shows that they were more severe

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Oxnam v. Oxnam.

than those testified to by the husband before the Master, but taking his version of the conditions, he demanded that she should give up her employment, and stop drinking, then he would take her back and provide a house. He admits that each time she replied that she would consider the proposition, and then decide, and let him know. This is his testimony. When she left on October 22, 1916, the last of her three visits at the mother's house, they kissed good-bye. This certainly was not wilful and malicious desertion, yet this is the day assigned in the libel as the period when the desertion began.

The Master finds no evidence to support the charge of drunkenness made against the wife. If there is such evidence it relates to a single occasion. She was under the influence of gin a short time after the marriage. The liquor was furnished by the husband because she suffered from cramps at the time of her menstrual period. He even purchased gin for her before marriage, and for the same medicinal purpose.

When she was under the influence of liquor, as the husband knew, because he furnished the gin and filled the glass for her again and again, he did not protect her nor respect her condition, but allowed a young man to enter her bed room, without any remonstrance or protest on his part. Another occasion is specified, when the smell of liquor, it is alleged, was on her breath. The third specification relates to another visit at the mother's house, on a rainy night. The wife explains the cause of her condition, and declares it was not due to liquor. If she is truthful the members of the mother's family are in error. It is not necessary to pass upon this disputed question. She worked continuously both before and after her marriage for the same employer. She was always on duty, in a responsible position, and never gave a single indication that she used intoxicating drink. This is the evidence of the manager of the establishment. Surely, proof that a wife was intoxicated but a single time will not justify her husband in excluding her from his home, or charging her with desertion because she declined to say that she would stop drinking. She avers that at this time his sole request was that she should give up her employment.

She took the demand under consideration on October 22nd, and promised to make a decision. Clearly there was no desertion by her on that date.

Oxnam v. Oxnam.

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The allegata and probata must agree, and the libellant must establish the desertion as of the date alleged. That was decided by this Court, as well as by the Courts in other counties of this Commonwealth :-Brown vs. Brown, 28 Dist. Rep., 153.

The husband was not in a position to exact the requirement that she should give up her work in Philadelphia. Marriage is a civil contract, and when he stipulated that she should continue her employment until he finished his house, or secured a home, it was his duty to comply with his part of the contract; especially so, in a matter of this character, when her conduct was justified under their financial circumstances, as well as under their mutual agreement.

The house was not completed and he had not provided any home for his wife. The bungalow at Audubon was not ready for occupancy until August 15, 1917. True, the husband had a house in Phoenixville in November, 1916, but it was leased to him and a fellow workman. They were boarding themselves. When the wife called on her husband at Phoenixville, the last of November, 1916, and asked to be taken back, he did not invite her to look at this house. He did not even let her know where the house was located.

If her conduct up to October 22, 1916, could be interpreted and distorted, so as to indicate desertion, still she was entitled to time for repentance. The desertion, under the law, must be continuous for two years.

That she did agree to give up her employment and comply with all his demands, if he would take her back and give her a home, is disclosed by the evidence, and by their correspondence.

As early as September 19, 1916, the wife wrote to her husband and said, "I have pleaded in vain for you to give me that to which I am entitled and which you promised, before God to give me,—a home of my own. I have promised that I would work hard, that I would save, that I would be patient. I now promise not to ask for clothes or to go out except once in a while, when you feel like it." * "I never said anything other than that I would stop work when we got out to Audubon." "Oh what is the use of coaxing and begging any more. George when the time comes, that you want me well enough to give me my own home. come for me and I will go home with you no matter where it is; if yoa do not leave it until I can stand it no longer."

# *

Even when the Audubon home was ready for occupancy, in

Oxnam v. Oxnam.

August, 1917, she was not asked to enter it, but the husband filled it with his mother's family.

On October 27, 1916, she wrote again, declaring her affection for her husband, and this long letter closes with the words :—“I'll just say so-long and if ever you need me, dear, just let me hear from you."

On December 14, 1916, she forwarded to her husband a special delivery letter. She says, "I have been sick with a bad cold but have to work as I am worried now for fear that you are not going to allow me to do what you said. What have I failed to do this time, George?" "I wrote and wired and am writing again, so do hope you will let me hear from you at once, as Saturday is pay day and I can give notice then of leaving. Please reply to this, so I will know just what to do and what arrangements to make.”

..

This letter was followed by a telegram on December 15, 1916: "Please, for God's sake, dear, answer by wire my letters and telegram. Am nearly crazy with worry and fear. Have done all you asked. Let me know what else you want done. Am sick from worrying. For pity, if nothing else, answer by Saturday morning, saying I may come home."

On the same afternoon the husband made his reply to these appeals: "Now I am done with you and I want you to stop sending me letters and telegrams, for I will not answer any more letters or receive any more telegrams." This is followed by the threat that he will apply to the law to compel her to stop these letters and telegrams. "I do not want you to come up here again, for if you do, I will not notice you." "From now on, I am done with you and will not be bothered with you any longer." "This is final." "The end."

If this correspondence does not show a complete submission by the wife to all the demands made by the husband, then language is utterly insufficient to convey such information to the husband.

These declarations on the part of the wife that she would give up her employment were made within two months from October 22, 1916, when the husband made his demand. She made the promise and concession,-although the husband violated his agreement,― that she should keep her job until he provided for her the Audubon house or some other home.

She went a step farther and expressed a willingness to comply with any additional demands he might impose. His reply is evidence