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MCGUIGAN v. MCGUIGAN. (03/24/55)

March 24, 1955

MCGUIGAN, APPELLANT,
v.
MCGUIGAN.



Appeal, No. 270, Oct. T., 1954, from order of Court of Common Pleas No. 6 of Philadelphia County, June T., 1952, No. 8087, in case of Joseph J. McGuigan v. Mary F. McGuigan. Order affirmed.

COUNSEL

Claude O. Lanciano, for appellant.

John Rogers Carroll, with him Richard T. McSorley and Joseph Patrick Gorham, for appellee.

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

Author: Ross

[ 178 Pa. Super. Page 177]

OPINION BY ROSS, J.

In this divorce action based on the charge of indignities to the person, the master recommended that a divorce be granted, the court below sustained defendant's exceptions to the master's report and entered an order dismissing the complaint, and the husband-plaintiff has appealed to this Court.

The parties were married on September 23, 1931 and established residence in Philadelphia. They have a son, born on October 28, 1939. They separated in March 1945 and this action was commenced on September 3, 1952.

The basic complaints of the plaintiff are that his wife "forcibly prevented him from completing the act of sexual intercourse", that she accused him of infidelity, and that she was guilty of physical violence. He testified that after the marriage defendant told him she did not want any children until she was ready to leave her employment and that as a result she required him to practise birth control until she did leave her employment. After the birth of the child she objected to having other children and again required him to practise birth control to which he acquiesced reluctantly, and that marital relations were discontinued early in 1942.

The defendant's accusations of infidelity allegedly began in the fall of 1932 when plaintiff sought to augment his income by singing on the radio and in night clubs. He testified that almost immediately after he began this work defendant accused him of having improper

[ 178 Pa. Super. Page 178]

    relations with chorus girls. He continued the work for three or four years, until 1936, during which period the accusations of infidelity were, according to him, reiterated constantly, at least a couple of times a week, "throughout the entire period" of the married life of the parties, and that the accusations led to actual physical violence on the part of the defendant. He recited details and fixed approximate dates of specific instances, during the course of one of which his glasses were broken.

The defendant presented evidence which, if believed, would tend to show that, though certain restraints existed as to the sexual relations of the parties, they were agreeable to the plaintiff, that plaintiff had more than a friendly interest in a number of women, and that when she struck him and once threw an ashtray at him, ...


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