J. I. Simon, Robert A. Jarvis, Beck, McGinnis & Jarvis, Pittsburgh, for appellants.
C. Joseph Recht, Harry Alan Sherman, Pittsburgh, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.
[ 169 Pa. Super. Page 589]
The parties to this action were formerly husband and wife. We will attempt to simplify the issues, which are based upon two decrees in equity, and two appeals to the Supreme Court.*fn1
The culmination of their quarrels seems to have been the husband's philandering with a young woman employe. In 1944 the parties entered into an oral separation agreement in which the husband engaged to convey to his wife three pieces of real estate, a grocery store with its stock, and a truck. She agreed to pay him $1,500 and to assume the debts of the business and the mortgages against the real estate, and also waived support for herself and their children.
The husband did not comply with the agreement, and she filed a bill in equity for specific performance and obtained a decree, from which the husband appealed. On November 25, 1946, the decree was affirmed by the Supreme Court, which refused reargument on December 13, 1946. The record was remanded for a
[ 169 Pa. Super. Page 590]
supplemental decree requiring the husband to convey three pieces of real estate instead of the two inadvertently ordered by the court below, and such decree was entered January 30, 1947.
Mrs. Zlotziver assumed control of the real estate and the store business and paid him $1,000. She also paid some $3,500 of his business debts, and made payments on the mortgages. Thus she performed all of the directions of the decree except that she did not discharge the unpaid balance of $500.
In 1944 she sued for divorce and obtained a decree against him in 1947. In 1946 he went to California and did not return until March, 1948.
During this time the parties seem to have lost sight of any property rights and to have been much more interested in ...