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WALPER v. WALPER (06/13/62)

June 13, 1962

WALPER, APPELLANT,
v.
WALPER, APPELLANT.



Appeals, Nos. 65 and 66, April T., 1962, from decrees of Court of Common Pleas of Allegheny County, Oct. T., 1947, No. 916, and Jan. T., 1961, No. 2778, in cases of Perry Walper v. Margaret Virginia Walper, and Margaret N. Walpr v. Perry E. Walper. Decree in No. 65 reversed; decree in No. 66 affirmed.

COUNSEL

C. Francis Fisher, with him Edward F. Kelly, and Brenlove and Fisher, for appellant.

William D. Henning, with him Harry Alan Sherman, for appellee.

Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.

Author: Wright

[ 198 Pa. Super. Page 411]

OPINION BY WRIGHT, J.

We have before us for consideration decrees of the Court of Common Pleas of Allegheny County in two divorce actions. On July 30, 1947, Perry E. Walper instituted an action for divorce a.v.m. against his wife, Margaret V. Walper, on the ground of indignities. Process was served and, after requesting a bill of particulars, the wife filed an answer. The case was not proceeded with further until October 31, 1960, when the husband amended his complaint by adding a charge of desertion. After filing an answer to the amended complaint, the wife instituted a cross-action in divorce a.v.m. on December 5, 1960. The grounds alleged were desertion and indignities. The wife's complaint was subsequently amended to request a divorce from bed and board. The two actions were consolidated for the purpose of trial. After taking testimony for two full days, the hearing judge, on November 14, 1961, entered a decree dismissing the wife's complaint, and a decree granting the husband a divorce on the ground of desertion. In each case the wife has appealed.

The parties were married on September 9, 1946, in Washington, D.C., which had been the wife's hometown. After a wedding trip, they resided at the home of the husband's parents on Fordham Avenue in the City of Pittsburgh for several months. They then moved into a furnished apartment on Hornaday Road, where they continued to reside until the birth of a son on June 19, 1947. After the wife's discharge from the hospital the parties resided on Ormsby Avenue in Mt. Oliver until their separation. Their marriage was not a happy one, and the explanation appears in the following except from the opinion below:

"The testimony of the parties and their witnesses differed in almost every respect, however the court is of the opinion that the crux of the parties' marital difficulties centered around their opposing beliefs regarding

[ 198 Pa. Super. Page 412]

    methods of birth control. Mrs. Walper had a difficult pregnancy which included a threatened miscarriage. The parties had numerous arguments before and after the birth of their child concerning the advisability of planning their family. The record discloses that these differences between the parties were due to their respective religious faiths, the wife being of the Roman Catholic faith and the husband being Protestant".

On or about July 15, 1947, at the time of the child's baptism, the husband informed the wife that he thought it would be best if they separated, and that he wanted a divorce. His reason for this request appears in the following excerpt from his testimony: "Q. What was your reason? A. My reason was, as I had specified, Counselor, that she would not accept the use of contraceptives for birth control". As previously stated, the husband's divorce suit was commenced on July 30, 1947, at which time the parties were living together. He testified as follows: "My sole purpose in filing for a divorce at that time was to endeavor to make her see the light: this was a serious proposition, and that we were going to remain as a family unit". The law never intended that a divorce action should be used in this manner. See Kusner v. Kusner, 196 Pa. Superior Ct. 513, 175 A.2d 889. Furthermore, the long delay in proceeding with the action raises doubt as to the husband's faith in the validity of his cause: Zirot v. Zirot, 197 Pa. Superior Ct. 124, 177 A.2d 137. The wife is chargeable with similar delay in instituting her action.

So far as the counter-charges of indignities are concerned, we do not propose to burden this opinion with a detailed analysis of the testimony. The burden of proof was the same in each action: Reddick v. Reddick, 194 Pa. Superior Ct. 257, 166 A.2d 553; Bruno v. Bruno, 185 Pa. Superior Ct. 219, 138 A.2d 301. It is sufficient to say that ...


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