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NORDMANN v. NORDMANN (12/16/64)

decided: December 16, 1964.

NORDMANN
v.
NORDMANN, APPELLANT



Appeals from orders of Court of Common Pleas of Allegheny County, Jan. T., 1964, No. 491, in case of Franziska A. Nordmann v. Uwe Hans Nordmann.

COUNSEL

Allen N. Brunwasser, for appellant.

R. C. McHugh, with him Joseph F. Weis, Jr., and Weis & Weis, for appellee.

Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (Rhodes, P. J., absent). Opinion by Montgomery, J.

Author: Montgomery

[ 204 Pa. Super. Page 563]

The primary question in this appeal is whether the evidence given at the ex parte hearing on the complaint in divorce a mensa et thoro is sufficient to support the decree. The appeal taken from the decree was in time since the proceedings were stayed by order of the lower court following the entry of the decree. Commonwealth v. Samolsky, 202 Pa. Superior Ct. 406, 195 A.2d 818 (1963).

The proof required in an action for divorce a mensa et thoro must be as clear as in an action for an absolute divorce. Commonwealth ex rel. Reddick v. Reddick, 198 Pa. Superior Ct. 111, 181 A.2d 896 (1962).

[ 204 Pa. Super. Page 564]

Accepting the evidence before us as believable, since appellant-husband did not appear to refute it, we conclude that it was insufficient to establish either cruel and barbarous treatment or indignities to the person as grounds to support the decree.

Initially it is observed that there is no evidence to establish jurisdiction. The record shows only that the parties were married May 17, 1958, in Carnegie and went to live with appellee's mother at Lakdale. Lakdale is not identified by county or state and her present address is not given. It is suggested by counsel for appellee that Lakdale was in fact an error and was meant to be Oakdale, Allegheny County, Pennsylvania, as set forth in the complaint, on which the proper allegations of residence are also given, viz., 611 North Highland Avenue, Oakdale, Pennsylvania, and 28 years residence in Pennsylvania. These allegations are not sufficient. A divorce can never be decreed upon the pleading but must be based on testimony. Hepworth v. Hepworth, 129 Pa. Superior Ct. 360, 195 A. 924 (1937); and jurisdictional facts must be established by satisfactory evidence. Miln v. Miln, 175 Pa. Superior Ct. 613, 106 A.2d 862 (1954).

There is no evidence to support the charge of cruel and barbarous treatment. Appellee's strongest statement is ". . . he flew into this rage and started slapping me around." Much more extreme acts of cruelty were rejected by us in Robinson v. Robinson, 183 Pa. Superior Ct. 574, 133 A.2d 259 (1957), although held to be evidence of indignities. However, we are of the opinion that all of the evidence does not satisfy the rule used to determine indignities as a ground for divorce, viz., there must be clear and satisfactory proof to show a course of conduct which renders the condition of the other party intolerable or his life burdensome, and from which an inference of settled hate and estrangement may be deduced. The conduct must be

[ 204 Pa. Super. Page 565]

    continual and persistent and not a single act or isolated instance. Craig v. Craig, 170 Pa. ...


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