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LUPOWITZ v. LUPOWITZ (10/05/51)

October 5, 1951

LUPOWITZ
v.
LUPOWITZ



COUNSEL

Harry Shapiro, William Ginsburg, Philadelphia, for appellant.

Louis Lipschitz, Philadelphia, for appellee.

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

Author: Gunther

[ 169 Pa. Super. Page 582]

GUNTHER, Judge.

Sidney Lupowitz, appellant, instituted this action in divorce charging indignities to the person. A master was appointed and after conducting eight hearings at which voluminous testimony was taken recommended that a divorce be granted on the ground alleged. Blanche Lupowitz filed exceptions to the master's report which the court below sustained concluding that a doubtful balance of the evidence existed and dismissed the complaint.

We are obliged to review the record and make an independent investigation of the evidence, pass upon its weight and credibility of the witnesses and reach an independent conclusion upon the merits as to whether a legal cause for divorce has been well established. Cutter v. Cutter, 165 Pa. Super. 103, 104, 68 A.2d 192. After a careful examination of the record of 965 pages we are constrained to differ with the learned court below. We are all agreed that appellant has met the burden cast upon him of sustaining the charge of indignities to the person by a clear preponderance of the credible evidence. The decree will be reversed.

The parties were married in Philadelphia on July 14, 1946, and while on their honeymoon stopped to inquire for accommodations at a summer hotel resort in New York. Appellant testified that he and his wife went into the lobby of this hotel and were told that the rate per day was $22. When appellant stated to his wife that he was financially unable to pay these prices, appellee, in the hearing of a number of guests and hotel employees, berated appellant by calling him a 'gambler' and a 'cheap-skate' and caused quite a

[ 169 Pa. Super. Page 583]

    scene. Appellee denies being in the lobby of the hotel or that any argument took place as testified to by appellant. Upon their return from their honeymoon, appellant testified that his wife had her engagement ring appraised by a jeweler who advised her that the ring was 'off color' and not a good ring. Appellant testified that his wife told him 'if she had known that I couldn't get a ring of greater value, something that she could wear proudly, that she would not have married me'. She again berated appellant and called him a 'cheap-skate'.

Approximately one month after the marriage, appellant told his wife that his father had an apartment house available for them in Melrose Park, Pennsylvania. Up to this time, the parties were residing with appellant's in-laws. Appellee, in a disdainful manner, stated that under no conditions would she be willing to live under the same roof with appellant's parents; that she would have nothing to do with his parents. Housing accommodations continued to be a source of dissension; appellee insisted that they live at the home of her parents much against appellant's wishes. The parties, however, continued to live at the home of appellee's parents for approximately four months until November, 1946. During this period appellee, together with her parents, continually reminded appellant that he was being supported by them; that he was not making enough money to support his wife and that if he did not earn at least $200 a week he should not have married appellee. During this period, appellant found several apartments that were available for immediate occupancy, but on each occasion appellee turned up her nose at the accommodations suggested by appellant and stated that she would not live in such small and unpretentious apartments; that he had no business marrying her unless he could furnish her with accommodations at least as sumptuous as those of her parents.

[ 169 Pa. Super. Page 584]

During these arguments appellee constantly used vile and vituperative language such as 'cheap-skate', 'gambler', ...


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