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GRAY v. GRAY (12/13/71)

decided: December 13, 1971.

GRAY, APPELLANT,
v.
GRAY



Appeal from decree of Court of Common Pleas, Family Court Division, of Philadelphia, March T., 1970, No. 2942, in case of William C. Gray v. Mildred E. Gray.

COUNSEL

Maurice Freedman, for appellant.

Stanley P. Stern, for appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Spaulding, J. Wright, P. J., and Montgomery, J., would affirm on the opinion of Judge Lagakos.

Author: Spaulding

[ 220 Pa. Super. Page 144]

Appellant William Gray appeals from the decision of the Court of Common Pleas of Philadelphia County, Family Division, in following the findings of a Master and dismissing appellant's complaint in divorce, a.v.m. Appellant brought this action pursuant to ยง 10 of The Divorce Law of 1929, contending that he is entitled to a divorce either based on (1) appellee's cruel and barbarous treatment, which endangered his life, or (2) indignities to his person by the appellee, rendering his condition intolerable and life burdensome.*fn1 It is our duty and responsibility to make an independent study of the evidence and determine whether a legal cause of divorce exists. Eifert v. Eifert, 219 Pa. Superior Ct. 373, 281 A.2d 657 (1971), Goldfine v. Goldfine, 201 Pa. Superior Ct. 462, 193 A.2d 695 (1963).

The parties were married in 1943 and have two adult children and a 15 year old son. While their marriage may have once been a happy one, in recent years it has been anything but harmonious. As found by the court below, the crucial event in the marital breakup for the purposes of this action occurred on January 10, 1970, when the parties' mutual abuse of each other was culminated by appellee shooting appellant. The circumstances of this incident are contested.

The record discloses that since August 1969 when the appellee left her job, marital differences intensified steadily. The Master and the court below found that the appellee did not cook for appellant or wash his clothing and that there was no conversation or communication

[ 220 Pa. Super. Page 145]

    between them; that her actions toward him were in direct response to his association with another woman and his own predeliction not to talk to appellee or eat his meals at home. Without going into detail, it suffices to say that the record is replete with many other instances of physical and mental threats and indignities by the parties against each other leading up to what the court below most appropriately describes as "the tragic events of January 10, 1970." (R. 186a)

On that afternoon, appellant returned home to find that appellee had "disposed of" all of his clothing. When he confronted her in the kitchen she accused him of having spent the night with another woman, which he admitted. She also told him: "A. '[I]f you come home tonight, do not sleep in the same bed with me.' . . . Q. What did he do to you -- A. He said, 'This is my house. I sleep where I please. You'll find out tonight.'" (R. 95a) He then either "hit" or "slapped" her in the face, knocking out a tooth.*fn2 Appellant then went to the basement, while appellee went upstairs and retrieved one of appellant's police service revolvers, which she had hidden. She returned downstairs to the kitchen and was washing the blood from her mouth when appellant started back upstairs from the cellar

[ 220 Pa. Super. Page 146]

    to the kitchen. He stated that his purpose was to open the front door for his son and then leave, but appellee testified that she was frightened that he was returning to hit her again. As appellant started up the stairs, appellee did not flee. Instead, without any warning or admonition to keep away from her,*fn3 she shot her husband. Appellee continued firing down the stairs until the gun was empty, three of the six shots hitting appellant in the forehead, chest and shoulder. He was in the hospital ...


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