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SIMS v. SIMS (03/18/59)

March 18, 1959

SIMS
v.
SIMS, APPELLANT.



Appeals, Nos. 211 and 212, April T., 1958, from decrees of Court of Common Pleas of Allegheny County, Oct. T., 1955, No. 2010, and Jan. T., 1957, No. 1386, in cases of Fred J. Sims v. Mary M. Sims and Mary M. Sims v. Fred J. Sims. Decrees affirmed.

COUNSEL

Patrick J. Corr, for appellant.

A. Morris Ginsburg, for appellee.

Before Rhodes, P.j., Hirt, Gunther, Wright, Ervin, and Watkins, JJ. (woodside, J., absent).

Author: Rhodes

[ 188 Pa. Super. Page 441]

OPINION BY RHODES, P.J.

The husband-plaintiff instituted an action for absolute divorce against his wife, Mary M. Sims, on August 30, 1955, and in his complaint he alleged indignities to the person. On November 5, 1956, he amended his complaint to include desertion. On the latter date wife-defendant instituted a separate action seeking a divorce from bed and board on the grounds of cruel and barbarous treatment, indignities to the person, and desertion. The master appointed by the court held hearings on both actions, and recommended that a divorce be granted on the grounds of indignities and desertion as alleged in plaintiff's complaints. In the wife's separate action for a divorce a mensa et thoro the master found against her on all grounds and recommended that her complaint be dismissed.

The wife filed exceptions to the master's report in which she alleged that the master erred in failing to make detailed findings of fact and in his conclusions of law. With leave of court the master filed additional findings of fact. The court in banc, in an opinion by Judge SOFFEL, overruled the wife's exceptions, approved the master's report, and entered a decree in favor of plaintiff on the grounds of indignities and desertion in his action for an absolute divorce. The court of common pleas also accepted the recommendation of the master in the suit of Mary M. Sims v. Fred J. Sims (No. 212, April Term, 1958) for a divorce a mensa et thoro and dismissed her complaint. The wife has appealed from both decrees.

The parties were married in a civil ceremony on May 13, 1944; their one child is a daughter. Plaintiff,

[ 188 Pa. Super. Page 442]

    his brothers and sisters had been raised in a Catholic family; but plaintiff testified that he was a Protestant. Later, on September 3, 1944, a religious ceremony was performed by a priest of the Catholic church. At this ceremony plaintiff was advised to take religious instruction; he stated, however, that he had no intention of joining that church. Thereafter the wife continually berated him for his failure to join the church, nagged him, and refused him normal relations; in fact, she would have nothing to do with him. In this connection she demanded that plaintiff drop his membership in the Odd Fellows Lodge because she considered it a Protestant organization.

Many of the indignities alleged to have been suffered by plaintiff grew out of his wife's refusal to leave the home of her parents and establish a home of their own. From the time of the marriage in 1944 until the final separation on June 25, 1954, the parties lived with the wife's parents, which obviously created an intolerable condition.

At first plaintiff was employed as a printer in Washington, Pennsylvania, and commuted week-ends to the home of the wife's parents in Pittsburgh. In July, 1947, plaintiff obtained employment with the Pittsburgh Press and thereafter lived continuously with the wife's parents in the latters' home until the final separation. She had an allowance of $25 per week when plaintiff was working in Washington, Pennsylvania, and $40 or more when he was working in Pittsburgh. Although plaintiff made repeated efforts to establish a home of his own, she ...


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