Opinion
June 15, 1965.
September 16, 1965.
Divorce — Indignities to the person — Evidence — Cross action by wife for divorce a mensa et thoro — Innocent and injured party.
In cross actions for divorce, the first of which was filed by the husband for an absolute divorce on the ground of indignities to the person, and the second filed by the wife for a divorce a mensa et thoro on the grounds of abandonment, cruel and barbarous treatment, indignities, and adultery, it was Held that the husband had met the burden of establishing that he had been subjected to a course of conduct by the wife which had rendered his life burdensome and his condition intolerable, that the evidence was sufficient to satisfy the definition of indignities and to establish that the husband was an innocent and injured party, that the wife failed to establish that her husband had committed the acts with which she charged him, and that the decree of the court below in favor of the husband should be affirmed.
Argued June 15, 1965.
Before ERVIN, P.J., WRIGHT, WATKINS, MONTGOMERY, FLOOD, JACOBS, and HOFFMAN, JJ.
Appeal, No. 130, Oct. T., 1965, from decree of Court of Common Pleas No. 3 of Philadelphia County, June T., 1960, No. 4639, in case of Joseph T. Nicastro v. Anna Marie Nicastro. Decree affirmed.
Cross actions in divorce.
Report of master filed recommending decree of divorce in action of husband on the ground of indignities and recommending wife's action be dismissed; exceptions to master's report dismissed and decree of divorce entered, opinion by MILNER, P.J. Wife appealed.
Alexander Schamban, with him D'Agui Del Collo, for appellant.
Jerome E. Ornsteen, with him Ornsteen Lunine, for appellee.
This appeal arises from cross actions for divorce, the first of which was filed by the husband-appellee whereby he sought an absolute divorce on the grounds of indignities to his person, and the second was filed by the wife-appellant who sought a divorce a.m.e.t. on the grounds of abandonment, cruel and barbarous treatment, indignities and adultery. The two actions were consolidated for trial before a master who filed a comprehensive report in which he made separate findings in each proceeding and recommended that a divorce a.v.m. be granted to the husband and the wife's complaint be dismissed. The lower court approved the master's report, dismissed the wife's action and entered a final decree in favor of the husband. The wife appeals from the entry of this decree. No appeal was taken from the dismissal of the wife's action.
After reviewing the entire record de novo giving the highest consideration to the master's report on the matter of credibility of witnesses, we reach the same conclusion as the master and the lower court. Therefore, we affirm the decree a.v.m. in the husband's action.
Without reciting the facts demonstrated by the evidence, we need say only that the husband met the burden the law imposes on all such complainants by establishing that he had been subjected to a course of conduct by the wife which rendered his life burdensome and his condition intolerable and that the wife failed to establish that her husband had committed the acts with which she charged him, i.e., desertion or abandonment, cruel and barbarous treatment, adultery, or indignities.
The evidence is sufficient to satisfy the definition of indignities, i.e., vulgarity, unmerited reproach, habitual contumely, studied neglect, intentional incivility and other manifestations of settled hate and estrangement, Patton v. Patton, 183 Pa. Super. 468, 132 A.2d 915 (1957), and to establish that appellee was an innocent and injured party.
Decree affirmed.