Holobinko v. Holobinko
| Decision Date | 13 January 1950 |
| Docket Number | 74 |
| Citation | 70 Pa. D. & C. 539 |
| Parties | Holobinko v. Holobinko |
| Court | Pennsylvania Commonwealth Court |
February term, 1946
D Edward Long, for plaintiff.
Action in divorce.
The disposition of this case has been delayed a long time. After oral argument an additional brief was to be filed by libellant and the matter was laid aside awaiting it. No additional brief was forthcoming, and sometime ago the court was informed that the brief would not be filed.
The ground upon which this proceeding in divorce was brought is adultery. The facts presented before the master are in short as follows: Libellant at the time of marriage was in the armed services. He and respondent lived together a short time. After several years in the service libellant returned to the house in which he and respondent had been living together after their marriage. Respondent's mother seems to have been living with respondent at that place, and when libellant asked for respondent, her mother stated she was upstairs. Libellant went upstairs and found respondent lying on the bed with a young child. Libellant asked whose child it was, and she stated that it was her child. Libellant then left the home and never returned and has never lived with respondent since that time. Libellant testified that he had been overseas a large part of the time when in the service and it appeared from his testimony that during the time the child must have been conceived he was overseas. Libellant also testified that he had never seen his wife or been with her from the time he left her in June 1942 until he returned to their home on August 24, 1945. He also offered in evidence his discharge from the service on which was noted the period during which he was overseas, from July 1943 until July 1945. The child was born on July 9, 1945, at the home of respondent's sister on Route 3, Mercersburg, Franklin County, Pa. Respondent's mother testified respondent told her that Kenneth Hornbaker was the father of the child. She also testified that Kenneth Hornbaker was living in the same house with respondent. She further testified that libellant was not around or near the place at which her daughter was living at the time of the conception of the child. Respondent's brother testified that he often went to his mother's, which was the place where respondent was living, and that he saw Kenneth Hornbaker there and further that Kenneth Hornbaker and respondent and his mother came down to his home. He also testified that he heard his sister say that Kenneth Hornbaker was the father of the child. The physician who attended the respondent during her pregnancy and delivery stated the child was delivered on July 9, 1945, and that, while the respondent was in labor she stated that Kenneth Hornbaker was the father of the child.
The testimony of the father as to nonaccess and his wife's statement to him that the child was hers was taken by the master's subject to be stricken out. The discharge was admitted by the master and considered by him in reaching his final conclusion.
The master found that respondent had committed adultery but did not find that she had committed it with any particular person. The suggested decree submitted to the court did not contain the ordinary provision of a decree in adultery prohibiting the respondent and correspondent to marry. The basis of the master's finding of adultery was that respondent had been delivered of a child and that the discharge of libellant showed that he had been overseas at the time the child must have been conceived. He then further in his opinion came to the conclusion that the testimony of libellant as to nonaccess and of respondent as to paternity of the child were both admissible and not rendered inadmissible by the general rule that neither parent can bastardize a child born during wedlock on the basis that this rule does not apply in a divorce proceeding where the issue is adultery and not the legitimacy of a child. He also refers to The Divorce Law of May 2, 1929, P. L. 1237, 23 PS § 50, making the libellant in a divorce proceeding fully competent to prove all facts and concludes that under that act the testimony of libellant as to nonaccess was admissible.
Although there is no appellate court decision in Pennsylvania definitely holding that, in a divorce proceeding on the ground of adultery where the wife has given birth to a child, the testimony of a husband as to nonaccess during the time the child must have been conceived or the testimony of the wife that the husband is not the father of the child is not admissible, there are some lower court cases which hold that it is not admissible, such as Williams v. Williams, 46 D. & C. 481; Peters v. Peters, 4 D. & C. 287; Coyles v. Coyles, 26 Dist. R. 816; and Moore v. Moore, 49 Montg. 130: and on the other hand there are some which hold that it is, such as Weaver v. Weaver, 31 Dauph. 326; Thompson v. Thompson, 28 Dauph. 73; and Allison v. Allison, 61 Pitts. L. J. 101. The latter cases are based largely on the fact that the above-mentioned statute definitely allows libellant to testify as to all facts.
The general rule in Pennsylvania is stated in Commonwealth v. DiMatteo, 124 Pa.Super 277, 281, by Judge Cunningham, who, quoting from Dennison v. Page, 29 Pa. 420, states
" 'Non-access cannot be proved by either the husband or the wife, whether the action be civil or criminal, or whether the proceeding is one of settlement or bastardy, or to recover property claimed as heir at law.'" and also says, pp. 283, 284: " Under the rule in force in England, in this state, and in at least eighteen sister states, the prosecutrix was not, as we have seen, a competent witness to prove non-access of her husband. . . .
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