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BENNY v. BENNY (07/20/50)

July 20, 1950

BENNY
v.
BENNY



COUNSEL

Elmer J. Harris, and Henry Greenwald, Wilkes-Barre, for appellant.

Gerald G. Dolphin, Scranton, for appellee.

Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross and Arnold, JJ.

Author: Ross

[ 167 Pa. Super. Page 228]

ROSS, Judge.

In this divorce action, the master recommended that a divorce be granted on the ground of indignities. Exceptions to his report were sustained by the court below, the libel dismissed and the libellant husband took this appeal.

The libellant has the burden of proving by the preponderance of the evidence, Dash v. Dash, 357 Pa. 125, 53 A.2d 89, that the respondent by a course of conduct rendered his condition intolerable and his life burdensome. Monaco v. Monaco, 160 Pa. Super. 117, 50 A.2d 520; it must clearly appear from the evidence that he is the innocent and injured party, Othmer v. Othmer, 158 Pa. Super. 384, 45 A.2d 389, and he must establish his right to a divorce by evidence that is clear and convincing. Fawcett v. Fawcett, 159 Pa. Super. 185, 48 A.2d 23. Judged by these well established principles, the libellant has not shown that he is entitled to a divorce and consequently the decree of the court below dismissing the libel will be affirmed.

The parties were married on September 22, 1939. At the time of the marriage the respondent was in an advanced state of pregnancy, the child being born the following month. The libellant was then in military service. He testified, relative to the marriage, that the respondent 'wrote a letter to Washington, D. C. stating the fact I had put her in the family way' and 'Washington sent a letter to my commanding officer and I was called into headquarters and it was either trial by court martial for disgracing the uniform or marrying her, so I went ahead

[ 167 Pa. Super. Page 229]

    and married her for good or worse'. With this expressed reason for his entering into the marriage, it is not surprising that it turned out unhappily for both parties, but neither domestic unhappiness nor lack of affection is a ground for divorce. Breed v. Breed, 73 Pa. Super. 9. As so well stated by Judge Reno in Bobst v. Bobst, 160 Pa. Super. 340, at page 344, 51 A.2d 414, at page 416, 'The divorce courts cannot rectify misalliances; they dissolve only those marriages which have produced results which the legislature has recognized as grounds for divorce.'

After the marriage, the respondent continued to live with her parents, and the libellant after his discharge from service in October 1939 lived with a friend in New Jersey until February 1940, when the parties and their baby went to live with the libellant's sister in Connecticut. From that time until the libellant re-enlisted in the army in June 1942, the parties lived at various places, alone or with relatives. The libellant was again discharged from service on October 22, 1945, re-enlisted the following day and is still in service. The parties finally separated in July 1946. From a reading of the record, we agree with the learned court below that the libellant 'at no time, established a suitable home for his wife.'

Much of the testimony in the case is vague and confusing. However, it appears that sometime in June 1942, the libellant came home from work and found some neighbors in his home with the respondent. He testified: 'They were eating and drinking beer * * * there was nothing left on the stove to eat. I just blew my stack and ordered everybody [including respondent] out. * * * The cops came down * * * and they locked me up that night.' He further testified that the disturbance arose because 'they didn't have a right to ...


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