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ELIZABETH O'CALLAGHAN v. WILLIAM O'CALLAGHAN (11/20/89)

filed: November 20, 1989.

ELIZABETH O'CALLAGHAN, APPELLANT,
v.
WILLIAM O'CALLAGHAN, APPELLEE



Appeal from the Decree of the Court of Common Pleas of Philadelphia County, Civil at No. 6429 August Term, 1982.

COUNSEL

Jane M. Schoener, Philadelphia, for appellant.

Ronald Ervais, Philadelphia, for appellee.

Montemuro, Kelly and Hester, JJ.

Author: Montemuro

[ 389 Pa. Super. Page 321]

This is an appeal from a final decree in divorce and equitable distribution.

The parties were married in 1953, and separated in November, 1982, two months after appellant's Complaint in Divorce was filed. The complaint was predicated upon allegations of adultery, indignities, cruel and barbarous treatment, and irretrievable breakdown. Since the initial pleading, the record has become a repository for accusations of misbehavior filed in various formats by one party against the other; the course of conduct by both parties thus revealed, during the marriage and subsequent to separation, may charitably be termed uncivilized. The excuse offered by both is that each acted only in response to the other's provocation. Included in the filings have been appellee's petition for injunctive relief to prevent appellant from harassing his employers, customers, co-workers and suppliers. The trial court's grant of such relief was affirmed by this court.

[ 389 Pa. Super. Page 322]

Several masters were assigned to the case in succession, and, after three days of hearings held by the fourth and final Master, a recommendation of divorce*fn1 and allocation of marital property was made. Recourse was had to the trial court on exceptions, culminating in the order now appealed from, which granted the parties a § 201(d) divorce, and allocated to appellant 60% of marital assets equaling $128,162.18.

Appellant first argues that the court's grant of a divorce under section 201(d)*fn2 of the Divorce Code was in error. While appellant does not dispute the propriety of a divorce per se, she requests entry of a decree on alternate grounds, e.g., adultery, indignities, or cruel and barbarous treatment, claiming that 201(d) grounds are absent from the pleadings.

The trial court, on the recommendation of the Master, refused to divorce the parties on fault grounds as there is ample evidence in the record to demonstrate that despite appellee's abusive behavior, appellant was not an injured and innocent spouse, a point which she disputes. Although several times appellant returned violence for violence, expressing regret while testifying that she had not variously shot, stabbed or strangled appellee on those occasions, appellant nevertheless contends that her actions were dictated by a sense of self-preservation. The reason for appellant's insistence that her own behavior was beyond reproach

[ 389 Pa. Super. Page 323]

    concerns the award of permanent alimony, which the trial court denied. In her second issue, appellant continues to argue the self-defense theory in ...


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