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LAPISKA v. LAPISKA (03/17/64)

March 17, 1964

LAPISKA
v.
LAPISKA, APPELLANT.



Appeal, No. 250, April T., 1963, from decree of Court of Common Pleas of Allegheny County, April T., 1960, No. 2429, in case of Frank J. Lapiska v. Theresa F. Lapiska. Decree vacated.

COUNSEL

Robert R. Johnson, Jr., for appellant.

H. N. Rosenberg, with him Rosenberg & Kirshner, for appellee.

Before Rhodes, P.j., Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (ervin, J., absent).

Author: Montgomery

[ 202 Pa. Super. Page 608]

OPINION BY MONTGOMERY, J.

In this appeal from a decree in divorce a.v.m. the wife-appellant questions the sufficiency of the evidence to establish that husband-appellee is an "innocent and injured spouse" or that she committed such indignities to his person as to render his condition intolerable and his life burdensome.

To make proper disposition of this appeal, we performed our required duty of carefully reading the entire record of the testimony, which is unnecessarily long, and have made an independent determination of the credibility of the parties and their witnesses. Although we have given the fullest consideration to the report of the master on the issue of credibility, we do not find the answer so clear as he did. Had we determined that appellee had his witnesses were entirely credible and the appellant and her witnesses entirely incredible, our problem would have been simple; we would have accepted his account of the marriage events, whole cloth, and disregarded her answers and countercharges. However, as in most cases of divorce, each party is prone to describe the events of the marriage to his or her advantage and, in doing so, exaggerate or minimize, color or embroider the truth, and even falsify. Judge WOODSIDE of this Court, in Shoemaker v. Shoemaker, 199 Pa. Superior Ct. 61, 65, 184 A.2d 282, 284 (1962), quotes from an opinion by Judge RENO in Smith v. Smith, 157 Pa. Superior Ct. 582, 43 A.2d 371 (1945), on the difficulties of determining credibility in these cases, that which we think bears repeating, to the effect that the conclusion on credibility "will depend upon a judgment or intuition more subtle than can be objectively demonstrated."

Although appellee appeared to be candid and straightforward to the master, his testimony was too

[ 202 Pa. Super. Page 609]

    general and indefinite for us to consider it entirely credible. Furthermore, it was not corroborated in very many important particulars by his witnesses. On the other hand, although appellant was not truthful in one particular, we would not be inclined to apply the harsh rule of falsus in uno, falsue in omnibus and entirely disregard her testimony and that of her many witnesses for that reason alone.

Viewing the record in this light, the truth as to the relation of these parties appears to be as follows: The parties were married December 26, 1942, in Pittsburgh, Pennsylvania, at which time the husband was 25 and the wife was 22 years of age. They purchased a house in 1943; but soon thereafter he was inducted into the United States Navy and was in the Pacific Theater from the summer of 1944 until December, 1945, when he returned home and resumed living with his wife. Shortly thereafter he discovered that she was expecting a child, admittedly not fathered by him. They separated immediately following this discovery and he filed divorce proceedings shortly thereafter. He did not continue with those proceedings; but instead he became reconciled with his wife following the birth of the child on April 19, 1946, and its placement in a foster home under order of the Juvenile Court, which order placed on her the obligation for its support at $14 per week. Following their reconciliation in early 1947, they lived together in the home owned by them until February 23, 1960, when he departed from it.

We fail to see in the record anything that could be considered as indignities to his person for the first ten years following their reconciliation. In his bill of particulars and in his testimony appellee made certain complaints, but they appear frivolous and unimportant in ...


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