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RUSSEL EUGENE BONAWITZ v. MARJORIE J. BONAWITZ (12/15/76)

decided: December 15, 1976.

RUSSEL EUGENE BONAWITZ, APPELLANT,
v.
MARJORIE J. BONAWITZ



Appeal from the Order of the Court of Common Pleas of Dauphin County, Civil Action, Law, at No. 456, January Term, 1974. No. 110 March Term, 1976.

COUNSEL

Arthur K. Dils, Harrisburg, for appellant.

George W. Gekas, Melman, Gekas & Nicholas, Harrisburg, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., files a concurring opinion. Hoffman, J., files a dissenting opinion in which Watkins, President Judge, joins.

Author: Price

[ 246 Pa. Super. Page 259]

This is an appeal from an order of the court below sustaining exceptions to a master's report and dismissing an action for divorce a vinculo matrimonii. After careful review of the record before us, we affirm the order of the lower court.

Russel and Marjorie Bonawitz were married on September 26, 1954, in Harrisburg. Two children, presently

[ 246 Pa. Super. Page 26020]

and 17 years of age, were born to this marriage. On February 4, 1974, the appellant filed a complaint in divorce, alleging indignities to the person.*fn1 After conducting a hearing,*fn2 a master recommended that a decree in divorce be granted.

We must initially note that it is our duty, on appeal, to make an independent examination of the record and to determine whether a legal cause of action for divorce exists. Barr v. Barr, 232 Pa. Super. 9, 331 A.2d 774 (1974); Arcure v. Arcure, 219 Pa. Super. 415, 281 A.2d 694 (1971). Moreover, we are acutely aware that where the issue is one of credibility and the master is the one who heard and observed the witnesses, his findings of fact and recommendation should be given the fullest consideration. Gehris v. Gehris, 233 Pa. Super. 144, 334 A.2d 753 (1975); Sells v. Sells, 228 Pa. Super. 331, 323 A.2d 20 (1974). However, our review, even in this light, does not lead us to the same conclusion as the master and we must reject his finding that the credibility of the appellant would sustain the granting of this divorce.

It is axiomatic that a husband seeking a divorce on the ground of indignities must clearly and satisfactorily prove not only that his wife's course of conduct rendered his condition intolerable and his life burdensome, but also that he was the innocent and injured spouse. E. g., Nichols v. Nichols, 207 Pa. Super. 220, 217 A.2d 807 (1966); Staffieri v. Staffieri, 197 Pa. Super. 443, 179 A.2d 663 (1962). The appellant complained that the appellee had, among other things, scratched his neck with her fingernails, thrown objects at him, cursed him and his relatives, driven a scissors beneath one of his fingernails, destroyed part of his property, threatened to kill him, and unjustly accused him of infidelity. There is no question

[ 246 Pa. Super. Page 261]

    that these actions, if clearly proven, ". . . consist of such a course of conduct as is humiliating, degrading and inconsistent with the position and relation as a spouse," McKrell v. McKrell, 352 Pa. 173, 180, 42 A.2d 609, 612 (1945); see Steinke v. Steinke, 238 Pa. Super. 74, 357 A.2d 674 (1975) (Concurring Opinion by Spaeth, J.), and would therefore support a decree in divorce based on ...


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