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LEVITZ v. LEVITZ (11/15/62)

November 15, 1962

LEVITZ
v.
LEVITZ, APPELLANT.



Appeal, No. 349, Oct. T., 1962, from decree of Court of Common Pleas of Montgomery County, April T., 1956, No. 374, in case of Leon Levitz v. Ruth Levitz. Decree affirmed.

COUNSEL

Edward N. Cahn, with him Dower, Kanehann, Huston, McDonald & Cahn, for appellant.

Sidney M. DeAngelis, with him DeAngelis and Kaufman, for appellee.

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

Author: Rhodes

[ 199 Pa. Super. Page 329]

OPINION BY RHODES, P.J.

This is an appeal by defendant-wife from a decree of the Court of Common Pleas of Montgomery County awarding the husband an absolute divorce on the ground of the wife's adultery.

The parties were married on December 31, 1936. Plaintiff instituted his action against defendant on May 22, 1956, alleging adultery and indignities as grounds for a divorce. Defendant filed an answer to plaintiff's complaint and also alleged that plaintiff had committed adultery with one Frances Woodside. In an amended complaint on November 10, 1959, plaintiff charged defendant with additional acts of adultery. A second amended complaint was filed on February 4, 1960. After the taking of testimony, the master filed a report on March 21, 1961, in which he recommended that a divorce be granted on the ground of adultery. A supplemental report was filed on May 16, 1961. The case was reopened on August 11, 1961. The master filed a second supplemental report on March 16, 1962, in which he again recommended a divorce in favor of plaintiff on the ground of adultery committed with one Nathan Katz and one Saul Kalichman. The master found that plaintiff had not committed adultery with Frances Woodside and that therefore the defense of recrimination had not been established by defendant. The court below dismissed exceptions to the master's report and entered a decree in divorce on August 20, 1962, from which defendant has appealed.*fn1

[ 199 Pa. Super. Page 330]

The present appeal by defendant is based upon the single proposition that the decree should be reversed because she has established the defense of recrimination by a preponderance of credible evidence. See Act of May 2, 1929, P.L. 1237, § 52, 23 PS § 52. She does not here dispute plaintiff's proofs as to her adultery, and contends only that the evidence shows plaintiff was himself guilty of adultery. We have made an independent examination of the record and are of the opinion that the evidence of adultery on defendant's part was so conclusive that it cannot be seriously questioned.

Although the matter is not controlling here, we reversed the Court of Quarter Sessions of Montgomery County and refused defendant support on the ground she was found to have committed adultery with one Nathan Katz. Com. v. Levitz, 189 Pa. Superior Ct. 438, 442, 150 A.2d 581.

The issue presented on this appeal is whether defendant established the defense of recrimination. On appeal we are obliged to review the record and make an independent determination whether the evidence warrants a decree. Manley v. Manley, 193 Pa. Superior Ct. 252, 254, 164 A.2d 113. The master's report and the opinion of the court below contain a review and analysis of all the evidence, which we do not deem necessary to repeat.

The statutory defense of recrimination is based upon the commission of adultery by the plaintiff, and the burden is on the defendant to prove it. The evidence necessary to prove recrimination must have the same degree of certainty necessary to establish the charge of adultery against the defendant. Isaacs v. Isaacs, 149 Pa. Superior ...


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