Appeal from order of Court of Common Pleas of Allegheny County, Oct. T., 1962, No. 2290, in case of Joyce Helen Murphy v. Howard William Murphy.
George H. Ross, for appellant.
Howard William Murphy, appellee, in propria persona, submitted a brief.
Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (Rhodes, P. J., absent). Opinion by Montgomery, J. Woodside, J., dissents.
[ 204 Pa. Super. Page 577]
A divorce a.v.m. was refused by the trial judge in this case for the reason that wife-appellant was not an innocent and injured spouse. Although it was established that husband-appellee had been sentenced to imprisonment for more than two years for the crime of armed robbery, the lower court found as a fact that the wife was not innocent "because she knew of defendant's criminal associations and activities, and because she helped him conceal and dispose of the booty derived from his enterprises. Specifically, she helped him wrap stolen coins and aided in the concealment of $6,000 in cash which defendant left in her apartment."
Section 10 of The Divorce Law, Act of May 2, 1929, P. L. 1237, § 10, 23 P.S. 10, provides that "it shall be lawful for the innocent and injured spouse to obtain a divorce . . . whenever it shall be judged, . . . that the other spouse . . . (h) Shall have been convicted, as principal or as accessory either before or after the fact, . . . of the crime of . . . burglary, . . . larceny, . . . robbery, . . . and be sentenced to imprisonment for any term of two years or more. . . ." (Emphasis supplied) Although no decision holds specifically that the requirement
[ 204 Pa. Super. Page 578]
of an innocent and injured status for the one seeking the divorce is applicable when the cause is as stated in said subparagraph (h), we think that the statute is clear that proof of such status is required. Freedman, Law of Marriage and Divorce in Pennsylvania, 2d Ed., § 393, is in accord.
In Berezin v. Berezin, 186 Pa. Superior Ct. 340, 344, 142 A.2d 741, 743 (1958), we approved the language of President Judge Rhodes in Anthony v. Anthony, 160 Pa. Superior Ct. 18, 20, 49 A.2d 877, 878 (1946), as follows: "In order to determine whether a particular libellant is an 'innocent and injured spouse,' the court must not only examine and weigh the evidence relating to the many complex factual situations which make up the total picture of marital conduct, but it must evaluate this evidence with relation to the defenses available to the respondent in connection with the particular grounds for divorce relied upon by the libellant."
Section 10 of The Divorce Law, in requiring a plaintiff to be "innocent" as well as "injured" does not mean wholly free from all fault, Margolis v. Margolis, 201 Pa. Superior Ct. 129, 192 A.2d 228 (1963), but it does mean that where both parties are nearly equally at fault so that neither can clearly be said to be "the innocent and injured spouse" the law will grant a divorce to neither, Shoemaker v. Shoemaker, 199 Pa. Superior Ct. 61, 184 A.2d 282 (1962); Jones v. Jones, 189 Pa. Superior Ct. 461, 151 A.2d 643 (1959); and a plaintiff may be held derelict and may be denied relief because of conduct falling short of grounds for divorce. Newman v. Newman, 170 Pa. Superior Ct. 238, 85 A.2d 613 (1952).
Our duty and responsibility is to examine the evidence de novo and to arrive at an independent conclusion as to where the truth lies and whether a legal cause of divorce exists. ...