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GILARDA DANNIBALLE v. ANTONIO DANNIBALLE (01/14/55)

January 14, 1955

GILARDA DANNIBALLE, ALSO KNOWN AS GERADA DANNIBALLE, APPELLANT,
v.
ANTONIO DANNIBALLE



Appeal, No. 162, Oct. T., 1954, from order of Court of Common Pleas No. 6 of Philadelphia County, March T., 1953, No. 3085, in case of Gilarda Danniballe, also known as Gerada Danniballe, v. Antonio Danniballe. Order affirmed.

COUNSEL

Michael C. Rainone, Philadelphia, for appellant.

Americo V. Cortese, Philadelphia, for appellee.

Before Rhodes, P.j., Hirt, Ross, Gunther, Wright, Woodside and Ervin, JJ.

Author: Hirt

[ 177 Pa. Super. Page 335]

OPINION BY HIRT, J.,

The lower court, in this divorce case brought on a charge of indignities, sustained the defendant's exceptions to the master's report and dismissed the complaint. Because of a serious doubt as to proof of the charge which persists after consideration of the whole record, we are unable to say that the plaintiff has made out a case by that clear and satisfactory evidence necessary to a decree in divorce. Cf. Philo v. Philo, 154 Pa. Superior Ct. 563, 36 A.2d 833. The order will be affirmed.

The parties were married on May 6, 1950. It was a fourth marriage for the plaintiff and a second for

[ 177 Pa. Super. Page 336]

    the defendant. None of the prior marriages however terminated in divorce. At the time of the hearing before the master the plaintiff was 79 years of age and the defendant 57. She left him about January 1, 1953. Since then he has continued to occupy rooms in the house, owned by her, which had been their common home. Defendant was a machine operator in a laundry, with wages of a laborer, but whatever he earned he gave to his wife each week. And even since the separation he voluntarily has paid her each week an amount which on the average is materially in excess of the rental value of the rooms which he occupies.

The plaintiff complained of alleged abuse beginning about one month after the marriage, consisting in accusations of marital infidelity. She also said that on 5 or 6 occasions during their married life, beginning 3 or 4 months after the marriage, when drunk he would grab her by the throat and spit in her face. The advanced age of the plaintiff in itself casts doubt on her testimony that her morals were actually impugned. And she stated that he never called her names in the presence of others. Her attitude toward her husband while they lived together and even after the separation indicates rather convincingly that the other acts complained of, did not evidence such hate and estrangement (Coon v. Coon, 173 Pa. Superior Ct. 60, 95 A.2d 344) and a course of conduct on the part of the defendant as in contemplation of law will justify a decree of divorce on the ground of indignities. More than one year after the marriage (the date is not definitely stated) the plaintiff voluntarily paid off a mortgage of $1,200 against a property owned by her husband. She said she intended it as a gift to him, although she did accept monthly rentals from the property for one year thereafter amounting in all to about $500. After the separation plaintiff on her own admission

[ 177 Pa. Super. Page 337]

    prepared her husband's meals and ate with him. The extent to which she continued to supply him with food is disputed but on her deposition taken as late as June 10, 1953 (more than two months after her complaint was filed) in answer to the question: "Did you last night have dinner with your husband?" she answered: "That is no one's business. He is still my husband. When he is no longer my husband, then I will not eat with him again. He does not sleep with me. He lives in my house, but he eats with me. I am not going to tell no lies. When I have gotten what I want then he is no longer my husband." The defendant testified that his wife had put a For Sale sign on his house and that she left ...


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