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DEFRANCESCO v. DEFRANCESCO (07/21/55)

July 21, 1955

DEFRANCESCO, APPELLANT,
v.
DEFRANCESCO, APPELLANT.



Appeals, Nos. 14, 15 and 16, Feb. T., 1955, from orders of Court of Common Pleas of Luzerne County, May T., 1952, No. 771, in case of Albert DeFrancesco v. Anna O'Donnell DeFrancesco. Orders affirmed.

COUNSEL

Pauline G. Evansha, with her Israel T. Klapper, for plaintiff.

James Lenahan Brown, with him Daniel J. Flood, Joseph V. Kasper, and Flood & Brown, for defendant.

Before Rhodes, P.j., Hirt, Ross, Wright, Woodside, and Ervin, JJ. (gunther, J., absent).

Author: Hirt

[ 179 Pa. Super. Page 107]

OPINION BY HIRT, J.

The parties were married on October 17, 1946. The plaintiff left the marital domicile on or about February 27, 1948 and has not lived with the defendant since then. He brought this action in divorce in April 1952 on the single charge of indignities. The master recommended a divorce on that ground. The court however sustained defendant's exceptions to the master's findings and dismissed the plaintiff's complaint. The order will be affirmed.

To winnow relevant facts from the mass of testimony in this case, in many respects repetitious and inconsequential, has not been free from difficulty. We however have read the three volumes of testimony in the original record with as much patience as we could muster, and after an independent consideration of all

[ 179 Pa. Super. Page 108]

    of it, the conclusion persists that the plaintiff has neither disclosed that he is an injured and innocent spouse nor has he met the burden upon him of showing a course of conduct on the part of his wife which rendered his condition intolerable and his life burdensome. Plaintiff's testimony does not supply that "clear proof of imperious reasons" necessary to the dissolution of a marriage. Politylo v. Politylo, 173 Pa. Superior Ct. 223, 95 A.2d 241. This was an unhappy marriage but as was said by Judge RENO in Hartley v. Hartley, 154 Pa. Superior Ct. 176, 178, 35 A.2d 591: "The regrettable fact that married people do not get along together does not authorize us to loosen them from the bonds of matrimony." The frictions incident to the marital unhappiness in this case do not support the husband's charge of indignities.

We will refer briefly to the incidents upon which the plaintiff places his principal reliance. Defendant had lived with her mother in an apartment at 512 East Broad Street in Hazelton and after the marriage the plaintiff came to live with them there. Defendant then ceased her professional activity as a registered nurse and the apartment became the marital domicile of the parties until their final separation. Shortly after the marriage plaintiff bought a property, without objection from his wife, which he intended as their future home. Defendant subsequently questioned the suitability of its location in Hazelton and because of the excessive estimated cost of alterations and repairs to the house which she considered necessary, plaintiff disposed of the property. This may have been a disappointment to the plaintiff but defendant's conduct in relation to the property did not amount to an indignity even though plaintiff may have sustained a loss on the sale of it. She considered it "a shack" unsuitable for a home without substantial rehabilitation. Moreover her

[ 179 Pa. Super. Page 109]

    objections to the property came within the early period of her pregnancy when plaintiff concedes that she was ...


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