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FASZCZEWSKI v. FASZCZEWSKI (11/15/56)

November 15, 1956

FASZCZEWSKI
v.
FASZCZEWSKI, APPELLANT.



Appeal, No. 29, Apr. T., 1956, from decree of Court of Common Pleas of Allegheny County, Apr. T., 1953, No. 112, in case of John Faszczewski v. Helen Faszczewski. Decree reversed.

COUNSEL

Alexander J. Bielski, for appellant.

I. Elmer Ecker, with him E. P. Curran, for appellee.

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

Author: Rhodes

[ 182 Pa. Super. Page 296]

OPINION BY RHODES, P.J.

The plaintiff, John Faszczewski, filed his complaint in divorce charging his wife, the defendant, with indignities to the person. An answer was filed, and a master was appointed who held three hearings. The master recommended a decree, and the court below, after dismissing exceptions to the report, entered a decree of divorce from the bond of matrimony. Defendant has appealed.

The parties were married on June 27, 1934. Plaintiff finally left the marital home on December 12, 1952, after several absences of varying duration. Plaintiff is about forty-two years of age and defendant about forty-five. There are no children by the marriage. Plaintiff has been employed at the Pittsburgh Rolls Company. Defendant maintains a shop as a seamstress. After first living in the home of defendant's parents they finally acquired a home of their own in 1942.

Plaintiff's testimony covers many complaints relative to the conduct of defendant. Acceptance of his testimony and that of his witnesses without reservation would probably justify a decree in divorce. However, it presents an unacceptable portrayal of the marriage. The testimony of neither party gives a true indication of the responsibility for the unfortunate circumstances

[ 182 Pa. Super. Page 297]

    of this marriage. Considering all the evidence, we are convinced that both are equally chargeable with the result.

The burden was on plaintiff to prove a legal cause for divorce as set forth in section 10 of the Act of May 2, 1929, P.L. 1237, as amended, 23 PS ยง 10. It was not only necessary for him to establish such a course of conduct on the part of defendant as to render his condition intolerable and his life burdensome by evidence from which an inference of settled hatred and estrangement could be deduced (Monaco v. Monaco, 160 Pa. Superior Ct. 117, 119, 50 A.2d 520), but he must also be both the injured and innocent spouse within the contemplation of the statute (Politylo v. Politylo, 173 Pa. Superior Ct. 223, 228, 95 A.2d 241). The indignities of which plaintiff complains shall not be such as he himself has provoked. Putt v. Putt, 118 Pa. Superior Ct. 74, 78, 180 A. 92.

Both parties may have been injured to some extent by the conduct of the other; but our conclusions from an independent examination of the record are that plaintiff is not an innocent spouse and that he is not entitled to a divorce under the laws of this ...


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