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PERSI v. PERSI (01/17/52)

January 17, 1952

PERSI
v.
PERSI



COUNSEL

Joseph Knox Stone, Beaver, James B. Ceris, Beaver Falls, for appellant.

Theodore A. Tenor, Beaver Falls, Milton Selkovits, Aliquippa, for appellee.

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

Author: Rhodes

[ 170 Pa. Super. Page 189]

RHODES, President Judge.

Silvino R. Persi filed his complaint in the Court of Common Pleas of Beaver County on January 21, 1950, charging his wife, Rena Persi, the defendant, with indignities to his person, and praying for a decree divorcing plaintiff and defendant from the bonds of matrimony. Plaintiff filed a bill of particulars. An answer was filed by defendant to the complaint.

The master to whom the case was referred recommended that a decree be entered granting an absolute divorce. The court below sustained exceptions to the master's report and dismissed the complaint. Plaintiff has appealed to this Court.

In dismissing plaintiff's complaint the court below concluded that plaintiff failed to sustain the burden of making out a case which would entitle him to a decree of divorce, and that plaintiff was not the injured and innocent spouse.

Section 10 of The Divorce Law, Act of May 2, 1929, P.L. 1237, as amended by the Act of March 19, 1943, P.L. 21, § 1, 23 P.S. § 10, provides that it shall be lawful for the innocent and injured spouse to obtain a divorce from the bond of matrimony whenever the other spouse '(f) Shall have offered such indignities to the

[ 170 Pa. Super. Page 190]

    person of the injured and innocent spouse, as to render his or her condition intolerable and life burdensome; * * *.'

In Anthony v. Anthony, 160 Pa. Super. 18, 20, 21, 49 A.2d 877, 878, we said: 'In order to determine whether a particular libellant is an 'innocent and injured spouse,' the court must not only examine and weigh the evidence relating to the many complex factual situations which make up the total picture of marital conduct, but it must evaluate this evidence with relation to the defenses available to the respondent in connection with the particular grounds for divorce relied upon by the libellant. * * * The phrase or expression is not without weight in reaching an ultimate conclusion and in sustaining a decree granting or refusing a divorce. * * * But the phrase is not a part of the charge or ground for divorce to be alleged in the libel. * * * As used in the act, it is a descriptive phrase for designating the one of two spouses who, because of the reasonable expectation of establishing a valid case, assumes the role of libellant.'

The testimony in this case was conflicting. Plaintiff was contradicted by defendant in nearly every respect. There was very little corroboration of either party's version of their marital troubles. The master apparently accepted plaintiff's testimony in making his findings of fact, but his conclusion that they established the charge against defendant is open to question. The court below, recognizing that the master who observed the appearance and demeanor of the witnesses, was in a better position to determine their credibility than one who was confined to the printed record, nevertheless found from its study of the record that any indignities of which defendant ...


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