Appeals from decrees of Court of Common Pleas of Allegheny County, Jan. T., 1962, No. 238, and Oct. T., 1963, No. 770, in cases of Rose Sokol v. Jacob Sokol, and Jacob Sokol v. Rose Sokol.
George S. Goldstein, for wife.
F. Peter Dixon, with him L. Pat McGrath, for husband.
Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, and Hoffman, JJ. (Flood, J., absent). Opinion by Wright, J.
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We have before us for consideration decrees of the Court of Common Pleas of Allegheny County in two divorce actions. On October 5, 1961, Rose Sokol instituted
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an action for divorce from bed and board against her husband, Jacob Sokol, on the grounds of cruel and barbarous treatment and indignities to the person. On January 3, 1962, the husband filed an answer, together with a praecipe for rule for bill of particulars. On July 5, 1962, the wife filed a bill of particulars, together with a petition for alimony pendente lite and counsel fee. On July 16, 1962, the husband instituted an action for divorce a.v.m. on the ground of indignities to the person, to which the wife, on July 19, 1962, filed an answer, together with a praecipe for rule for bill of particulars. On the same date the amount of alimony pendente lite and counsel fee was determined. On August 7, 1962, by agreement of the parties, the two actions were consolidated. On August 27, 1962, the husband filed a bill of particulars. On August 29, 1962, a master was appointed. On July 31, 1963, the master filed a report recommending that both complaints be dismissed, to which report both parties filed exceptions. On September 9, 1964, the exceptions were dismissed by the court en banc, and final decrees entered. The wife appealed to this court on October 6, 1964. The husband's appeal was filed on December 7, 1964.
We have made a painstaking review of this voluminous original record. The master conducted hearings on seven full days, and the notes of testimony cover some eleven hundred typewritten pages. The parties were married at the Sharre Torah Synagogue on December 22, 1959. Each had been married previously, and their respective spouses had died. After the marriage the parties lived in the wife's home at 781 Melbourne Street in the City of Pittsburgh. At the time of the marriage the husband was 67 and the wife was 52. The husband had two daughters by his first wife, both of whom are married and live in Phoenix, Arizona. The wife had two daughters by her first marriage, both
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of whom are married. One lives in Springfield, Virginia, and the other in LaMirata, California. Before the marriage the parties entered into a prenuptial agreement. By the terms of this agreement the husband released his rights in the wife's assets, and the wife released her rights in eight dwelling houses owned by the husband. She did not release her rights in certain other parcels of real estate owned by the husband, specifically including a dwelling on Craig Street. The husband later conveyed the Craig Street property without his wife's joinder. At the time she filed her divorce action, the wife left Pittsburgh and went to the home of her daughter in Virginia. She returned to Pittsburgh on April 28, 1962, and changed the locks on the house. When the husband attempted to enter, an altercation occurred which resulted in the husband's arrest.
The record discloses that during the months of October, 1961, through April, 1962, the husband constantly telephoned his wife in an effort to persuade her to return, wrote letters avowing his love for her, and offered to buy her a new home. This uncontradicted testimony plainly indicates that the wife's conduct had not rendered the husband's condition intolerable and his life burdensome, an essential feature which it was his duty to prove: McKrell v. McKrell, 352 Pa. 173, 42 A.2d 609. And see Zirot v. Zirot, 197 Pa. Superior Ct. 124, 177 A.2d 137; DeFrancesco v. DeFrancesco, 179 Pa. Superior Ct. 106, 115 A.2d 411. There is no merit in the husband's case for two additional reasons. Not only did he fail to satisfactorily establish indignities on the part of the wife, but also it clearly appears that he was not an innocent and injured spouse and the court below so found. See Wasson v. ...