
    Saville v. Saville, Appellant.
    
      Divorce — Desertion—Insufficient evidence — Review by appellate court.
    
    In an action for divorce on tbe ground of desertion, it is error to grant a divorce, where the evidence discloses that the parties had lived apart by mutual consent and that the libellant had continued to maintain a house in which respondent lived, where he visited her frequently, and there is nothing in the record to establish a wilful and malicious desertion.
    Living apart was purely by mutual consent, and the refusal of the wife to abandon the common home in the city and remove to the country, does not show any guilty intent to desert. Where a husband has consented to the separation between himself and his wife he cannot charge her with wilful and malicious desertion within the meaning of the divorce law.
    Argued March 8, 1921.
    Appeal, No. 12, March T., 1921, by respondent, from decree of C. P. Lackawanna County, June T., 1918, No. 266, granting a divorce in the case of James A. Saville v. Emma Isabella Saville.
    Before Orlady, P. J., Portee, Henderson, Trexler, Keller and Linn, JJ.
    Reversed.
    Libel in divorce. Before O’Neill, J.
    The facts are stated in the opinion of the Superior Court.
    The court granted a divorce. Respondent appealed.
    
      Error assigned, among others, was the decree of the court.
    
      Harold A. Soraggand with him Robert E. Soragg, for appellant.
    
      John J. Toohey, and with him F. E. Boyle, for ap-pellee.
    
      April 18, 1921:
   Opinion by

Orlady, P. J.,

Tbe libel in this action in divorce was filed May 20, 1918, alleging that as of December 20, 1916, tbe wilful and malicious desertion on tbe part of tbe wife and persisted in for tbe term of two years and upwards. After an application for a jury trial was presented and refused by tbe court, tbe bearing was bad before one of tbe judges. At tbe conclusion of this bearing, respondent presented two questions for findings as to conclusions of law, and seven for findings of fact, and submitted a brief in support of these requests. No action was taken by tbe court on either, and no opinion was filed. On December 31,1919, tbe court granted a decree in divorce.

In reviewing tbe evidence brought up on an appeal after a trial in open court by a judge, where tbe evidence is in irreconcilable conflict, and tbe correct determination of tbe issues of fact depends upon a determination of tbe veracity of witnesses who have given opposing testimony, tbe appellate court will, amongst other things, consider and give weight to tbe fact that tbe judge who saw and beard tbe witnesses and observed their manner of testifying bad a much better opportunity than tbe appellate court to form a correct judgment as to their credibility: King v. King, 36 Pa. Superior Ct. 33. Tbe ability, learning and conscience of tbe court must be called into exercise before there can be a dissolution of tbe marriage contracts and except where there has been an issue and jury trial, it is tbe duty of tbe court to review tbe testimony and adjudge whether it sustains tbe complaint of tbe libellant Middleton v. Middleton, 187 Pa. 612. In no case has it ever been tolerated that tbe court below should be relieved from answering requests for conclusions of law, and findings of fact, and giving a careful consideration of tbe testimony, to be shown in an opinion filed. Such a disregard of our rules of practice cannot be overlooked as they are mandatory. But, inasmuch as their record discloses that tbe decree entered in this case was made by tbe judge (wbo beard tbe evidence) on tbe last day of bis term of office, a return of tbe record to tbe court below would impose upon other members of that court tbe examination of tbe testimony without seeing or bearing tbe witnesses. It must not be accepted as a precedent that such unwarranted practice will be tolerated, and only under tbe peculiar facts of this case do we consider tbe appeal.

Tbe parties were married about 1890. They lived together until' December, 1916, when tbe libellant purchased a farm, some distance from tbe city, with tbe intention of building a bouse there for bis personal occupancy. At tbe same time be remodelled bis town bouse, and after a conference with bis wife, as to tbe quarters she desired to occupy, apartments were constructed with bis consent and at her request. She and her daughter occupied these, while tbe husband lived at bis mountain home. This arrangement was apparently satisfactory to each; she was not ashed to pay rent, and tbe husband continued to visit her, frequently bringing with him products from tbe farm, taking many meals there that were prepared by bis wife and daughter, and remaining over night a number of times. This establishment, as set up by tbe husband, was maintained by bis generous support until tbe institution of this proceeding for divorce.

Taking tbe record as presented in cold type, it lacks every element of wilful and malicious desertion for and during tbe term and space of two years. Tbe living apart was clearly by mutual consent, and tbe refusal of tbe Avife to abandon their common domicile in tbe city and remove to tbe country home, does not show any guilty intent to desert, and tbe husband on tbe facts disclosed in this record, cannot claim a wilful and malicious desertion. Where tbe husband has assented to tbe separation between himself and bis wife be cannot charge her with wilful and malicious desertion within tbe meaning of tbe divorce law. While it is true that a husband has tbe right to select a domicile, be must nevertheless procure a proper home for Ms wife, and offer honestly and in good faith to take her there to live: Gordon v. Gordon, 208 Pa. 186; Pearce v. Pearce, 53 Pa. Superior Ct. 129; Crandall v. Crandall, 66 Pa. Superior Ct. 153. We assume that the testimony of the libellant is as strong as he can make it, and despite the irregularities in the record, as above indicated, we conclude that there is not sufficient evidence to warrant the court in granting the decree in divorce.

The decree entered is reversed, and the libel dismissed at the cost of the appellee.  