Stewart v. Stewart

12 Citing cases

  1. Anthony v. Anthony

    49 A.2d 877 (Pa. Super. Ct. 1946)   Cited 9 times
    In Anthony v. Anthony, 160 Pa. Super. 18, 49 A.2d 877 the Court held "We are of the opinion that libellant was not required to include in her libel an averment that she is the `innocent and injured spouse,' and that the court below erred in dismissing the libel for want of such an averment."

    ecure a divorce on either of those grounds [cruel and barbarous treatment or indignities], the libellant must be `the injured and innocent spouse.' It provides, `When a marriage has been . . . contracted and celebrated between two persons, it shall be lawful for the innocent and injured spouse to obtain a divorce from the bond of matrimony, whenever it shall be judged, in the manner hereinafter provided, that the other spouse: . . . (e) Shall have, by cruel and barbarous treatment endangered the life of the injured and innocent spouse; or, (f) Shall have offered such indignities to the person of the injured and innocent spouse, as to render his or her condition intolerable and life burdensome; . . .' "It is well settled by the decisions of our appellate courts that the libellant, in order to entitle him or her to a decree of divorce, must establish his or her right thereto by clear and satisfactory evidence: Edmond's App., 57 Pa. 232; Esenwein v. Esenwein, 312 Pa. 77, 80, 167 A. 350; Stewart v. Stewart, 88 Pa. Super. 1, 5. It follows, then, that in weighing the evidence relating to the libellant's right to a divorce, the court should not enter a decree based on merely a slight preponderance of the evidence, but should refuse the divorce unless the libellant establishes by clear and satisfactory proof (1) such cruel and barbarous treatment as endangered his life, or such a course of indignities to the person as rendered his condition intolerable and life burdensome; and (2) that the libellant was the injured and innocent spouse." We think the court below erroneously assumed that the status of libellant as an "innocent and injured spouse" is an indispensable averment to be expressly pleaded in the libel.

  2. Daly v. Daly

    9 A.2d 192 (Pa. Super. Ct. 1939)   Cited 17 times

    " It is well settled by the decisions of our appellate courts that the libellant, in order to entitle him or her to a decree of divorce, must establish his or her right thereto by clear and satisfactory evidence: Edmond's App., 57 Pa. 232; Esenwein v.Esenwein, 312 Pa. 77, 80, 167 A. 350; Stewart v. Stewart, 88 Pa. Super. 1, 5. It follows, then, that in weighing the evidence relating to the libellant's right to a divorce, the court should not enter a decree based on merely a slight preponderance of the evidence, but should refuse the divorce unless the libellant establishes by clear and satisfactory proof (1) such cruel and barbarous treatment as endangered his life, or such a course of indignities to the person as rendered his condition intolerable and life burdensome; and (2) that the libellant was the injured and innocent spouse. This does not mean that the libellant must be wholly free from all fault — the law does not intend impossibilities — but it does mean that where both parties are nearly equally at fault, so that neither can clearly be said to be "the injured and innocent spouse," the law will grant a divorce to neither, but will leave them where they put themselves; and if the alleged indignities were provoked by the complaining party, they are not grounds for divorce, "unless when the retalia

  3. Truitt v. Truitt

    197 A. 152 (Pa. Super. Ct. 1938)   Cited 5 times

    There must be a presentation of a clear and satisfactory case on which the determination of the court may be confidently rested, and one who would win a case of this character must be clear of everything which is charged as a cause of separation against the opposite party; Edmond'sAppeal, 57 Pa. 232; Angier v. Angier, 63 Pa. 450. A decree may be supported by the testimony of the complainant alone, but if this testimony be contradicted and shaken by the respondent and there be no convincing circumstances warranting a disregard of the contradictory evidence, a case has not been made out." Rommel v.Rommel, 87 Pa. Super. 511, 513; see also Greims v. Greims, 87 Pa. Super. 312, 317; Lomax v. Lomax, 87 Pa. Super. 543; Stewart v. Stewart, 88 Pa. Super. 1; Headland v.Headland, 88 Pa. Super. 417; Goldberg v. Goldberg, 89 Pa. Super. 319; Nacrelli v. Nacrelli, supra.' "In Esenwein v. Esenwein, 105 Pa. Super. 261, 263, we held in an opinion by our President Judge TREXLER, that in an action for divorce, based on charges similar to those in the instant case, `that the testimony of the husband, denied and contradicted by the wife (as in this case) cannot be regarded as creating more than a doubtful balance of evidence.

  4. Kurtz v. Kurtz

    189 A. 569 (Pa. Super. Ct. 1937)   Cited 3 times

    As stated in Wagner v. Wagner, 112 Pa. Super. 485, 171 A. 419, at p. 499: "In a proceeding dissolving a marriage contract, the case is not to be disposed of on a doubtful balance of the evidence nor upon unsubstantial inferences. There must be a presentation of a clear and satisfactory case on which the determination of the court may be confidently rested, and one who would win a case of this character must be clear of everything which is charged as a cause of separation against the opposite party: Edmond's Appeal, 57 Pa. 232; Angier v. Angier, 63 Pa. 450. A decree may be supported by the testimony of the complainant alone, but if this testimony be contradicted and shaken by the respondent and there be no convincing circumstances warranting a disregard of the contradictory evidence, a case has not been made out.' Rommel v. Rommel, 87 Pa. Super. 511, 513; see also Greims v. Greims, 87 Pa. Super. 312, 317; Lomax v. Lomax, 87 Pa. Super. 543; Stewart v. Stewart, 88 Pa. Super. 1; Headland v. Headland, 88 Pa. Super. 417; Goldberg v.Goldberg, 89 Pa. Super. 319; Nacrelli v. Nacrelli, supra."

  5. King v. King

    173 A. 432 (Pa. Super. Ct. 1934)   Cited 4 times

    This was an action of divorce brought by a husband against his wife, on the ground of wilful and malicious desertion. It was tried before a jury, who rendered a verdict in favor of the libellant. The duty resting upon this court in appeals in divorce cases heard before a master, to review the testimony and decide on our own judgment whether it sustains, by clear and satisfactory proof, the complaint of the libellant (Nacrelli v. Nacrelli, 288 Pa. 1, 5, 136 A. 228; Nacrelli v. Nacrelli, 87 Pa. Super. 162, 164; Humphreys v. Humphreys, 85 Pa. Super. 488, 491; Stewart v. Stewart, 88 Pa. Super. 1, 2; Auerbach v. Auerbach, 98 Pa. Super. 369, 371), does not attach where there has been a jury trial and the issues of fact have been submitted to and decided by the jury: Middleton v. Middleton, 187 Pa. 612, 615, 41 A. 291; Burns v. Burns, 84 Pa. Super. 489, 490; Humphreys v. Humphreys, supra. These decisions, and many others, recognize this distinction, and restrict the duty of this court to review the facts and decide the case on its merits to actions heard before a master, or by a court without a jury, and expressly except cases "where there has been an issue and jury trial."

  6. Wagner v. Wagner

    171 A. 419 (Pa. Super. Ct. 1934)   Cited 18 times

    idence must bear the scrutiny of a master, and then of the common pleas, and then of this court, if an appeal be taken. `In a proceeding dissolving a marriage contract, the case is not to be disposed of on a doubtful balance of the evidence nor upon unsubstantial inferences. There must be a presentation of a clear and satisfactory case on which the determination of the court may be confidently rested, and one who would win a case of this character must be clear of everything which is charged as a cause of separation against the opposite party; Edmond's Appeal, 57 Pa. 232; Angier v. Angier, 63 Pa. 450. A decree may be supported by the testimony of the complainant alone, but if this testimony be contradicted and shaken by the respondent and there be no convincing circumstances warranting a disregard of the contradictory evidence, a case has not been made out.' Rommel v. Rommel, 87 Pa. Super. 511, 513; see also Greims v. Greims, 87 Pa. Super. 312, 317; Lomax v. Lomax, 87 Pa. Super. 543; Stewart v. Stewart, 88 Pa. Super. 1; Headland v. Headland, 88 Pa. Super. 417; Goldberg v. Goldberg, 89 Pa. Super. 319; Nacrelli v. Nacrelli, supra."

  7. Struble v. Struble

    98 Pa. Super. 230 (Pa. Super. Ct. 1930)   Cited 1 times

    There were contradictions in the testimony in regard to the causes of their marital troubles, but the important features of the wife's testimony were not denied. The truthfulness of some of her statements were admitted and there was such a strong corroboration of other parts of her testimony as to conclusively support her charges. It was incumbent upon this libellant, as he charged the respondent with wilful desertion without cause, to clearly establish, by evidence, that he was entitled to the dissolution of the marriage contract: Stewart v. Stewart, 88 Pa. Super. 1. This he failed to do. His infidelity in itself was sufficient to justify her in leaving: Baker v. Baker, 195 Pa. 407. It is apparent that this appellant did not desire to live with his wife. His course of hostile conduct toward her and his notorious relation with another woman made her life with him intolerable.

  8. Ulizio v. Ulizio

    96 Pa. Super. 91 (Pa. Super. Ct. 1929)   Cited 11 times

    " There was also evidence that libellant regularly contributed, during the pendency of these proceedings, very considerable sums toward the support of appellant. While not conclusive, such voluntary contributions, along with many other acts shown by the testimony, are inconsistent with his present contention that appellant was wilfully and maliciously absenting herself from his home: Olson v. Olson, 27 Pa. Super. 128. A divorce will not be granted unless the ground alleged in the libel is clearly established: Stewart v. Stewart, 88 Pa. Super. 1, 3; Lewis v. Lewis, 95 Pa. Super. 584. After a careful examination of the entire record we are convinced, by a clear preponderance of the credible testimony, that libellant has failed to sustain the charge contained in his libel.

  9. Lewis v. Lewis

    95 Pa. Super. 584 (Pa. Super. Ct. 1929)   Cited 3 times

    The arrangement entered into by the parties to resume conjugal relations were frustrated by his withdrawal from them. A divorce will not be granted unless the ground alleged in the libel is clearly established: Stewart v. Stewart, 88 Pa. Super. 1, 3. The decree of the lower court is reversed and the record is remitted with instructions to dismiss the libel, the costs of this appeal to be paid by the libellant.

  10. Twaddell, Jr. v. Twaddell

    95 Pa. Super. 429 (Pa. Super. Ct. 1929)   Cited 21 times

    There must be a presentation of a clear and satisfactory case on which the determination of the court may be confidently rested, and one who would win a case of this character must be clear of everything which is charged as a cause of separation against the opposite party; Edmond's Appeal, 57 Pa. 232; Angier v. Angier, 63 Pa. 450. A decree may be supported by the testimony of the complainant alone, but if this testimony be contradicted and shaken by the respondent and there be no convincing circumstances warranting a disregard of the contradictory evidence, a case has not been made out." Rommel v. Rommel, 87 Pa. Super. 513; see also Greims v. Greims, 87 Pa. Super. 312, 317; Lomax v. Lomax, 87 Pa. Super. 543; Stewart v. Stewart, 88 Pa. Super. 1; Headland v. Headland, 88 Pa. Super. 417; Goldberg v. Goldberg, 89 Pa. Super. 319; Nacrelli v. Nacrelli, supra. Concerning the altercation which preceded his leaving home, there is the testimony of the libellant on one side and of the wife and two children on the other; all agree that it was preceded by libellant's request for a memorandum or list of groceries that, apparently in accordance with his custom, he would purchase when he went to town.