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THORNTON v. THORNTON (01/12/51)

January 12, 1951

THORNTON
v.
THORNTON



COUNSEL

Paul N. Barna, Donora, for appellant.

Thomas L. Anderson, Washington, for appellee.

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

Author: Hirt

[ 168 Pa. Super. Page 392]

HIRT, Judge.

The parties were secretly married in 1936. They were then under age and they did not live together as man and wife until two years later following remarriage in a church ceremony. The separation occurred on August 1, 1947, when the plaintiff left his wife and their two children in their common home. In May, 1948, plaintiff brought this action in divorce charging indignities to his person. From the testimony the master found that the plaintiff in seeking a divorce was not an injured and innocent spouse and recommended a dismissal of the libel on that ground. The lower court however sustained exceptions to the master's report and entered a decree in divorce. Notwithstanding our respect for the opinion of the court below we are convinced from our independent consideration of the record in its entirety, that plaintiff has not sustained the charge of indignities by that clear and convincing proof essential to a decree in divorce. The cumulative result of the hearings before the master, throughout the period of a whole year, is a cumbersome record replete with inconsequential if not wholly irrelevant testimony. Only a few of the thirty charges of plaintiff's bill of particulars tend to support the charge of indignities. We will refer to them briefly.

Some time in 1940 following the failure of plaintiff's first business venture in Monessen the parties went to live with his parents on their farm in the Ginger Hill district. The two families continued to

[ 168 Pa. Super. Page 393]

    live together there and later in Monongahela. Even now the defendant with her children and plaintiff's parents live under the same roof in adjoining apartments of a double house in Monongahela. It is there that the parties were living at the time of the separation. Defendant and her mother-in-law have had, and still have, regard for each other, even since the plaintiff severed the family relationship.

There is little foundation for plaintiff's complaint that his wife refused to do the laundry work and otherwise care for the household over a period of years. The fact that his wife did not perform certain of her household duties was because of an agreed division of the housework, from time to time, between her and plaintiff's mother throughout the period. Plaintiff's criticism of his wife in this respect comes with ill grace and is wholly unwarranted. At Ginger Hill the plaintiff went into the chicken business with a flock numbering 100 or more. It was his wife who assumed the responsibility for their care and the sale of dressed poultry and eggs. In addition she assisted plaintiff in his business and she cared for her household and her child in the remaining time available, as best she could.

We find no credible evidence that the defendant attempted to procure an abortion, when she became pregnant in 1945 with her second child, or that she purposely failed to make preparation for the birth of the child. She was taken unawares by premature labor according to her testimony and she is corroborated in that respect to some extent by the circumstances. It was planned that she would take a month off from her work as a clerk in one of plaintiff's grocery stores. But she obviously misjudged the time of her delivery for she worked as usual at the store up to the day before the child was born on May 10, 1946. The birth of the child in the home was not from choice but because of insufficient warning in time for defendant to get to

[ 168 Pa. Super. Page 394]

    a hospital. She had been left alone in the house with a six-year-old child on that day ...


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