Walker v. Walker

• Decision Date: 14 July 1933
• Docket Number: 120-1933,119-1933
• Citation: 109 Pa.Super. 539,167 A. 446
• Parties: Walker v. Walker, Appellant
• Court: Pennsylvania Superior Court

167 A. 446

109 Pa.Super. 539

Walker v. Walker, Appellant

Nos. 119-1933, 120-1933

Superior Court of Pennsylvania

July 14, 1933

Argued April 27, 1933

Appeals by respondent from decree of C. P., Allegheny County January T., 1932, No. 3880, in the case of Mary Jackson Walker v. John L. Walker, and from decree of C. P., Allegheny County, July T., 1931, No. 4482 in the case of John L. Walker v. Mary Jackson Walker.

Libel in divorce. Before Marshall, J.

The facts are stated in the opinion of the Superior Court.

The court granted a decree of absolute divorce. Respondent appealed.

Errors assigned, among others, were the decree of the court and in imposing a condition upon the right of the respondent to alimony pendente lite.

Affirmed.

W. W. Stoner of J. M. Stoner & Sons, for appellant.

Oliver K. Eaton, and with him J. Merrill Wright, for appellee.

Before Trexler, P. J., Keller, Cunningham, Baldrige, Stadtfeld, Parker and James, JJ.

OPINION

James, J.

This appeal involves two questions, (1) whether the evidence presented was sufficient to warrant a decree of absolute divorce, and (2) whether the court had jurisdiction to attach a condition precedent to the right of respondent to receive alimony pendente lite and counsel fees.

On July 3, 1931, the libellant filed his libel in divorce alleging that respondent did by cruel and barbarous treatment endanger libellant's life and offer such indignities to libellant's person as to render his condition intolerable and life burdensome. Libellant filed a bill of particulars to which an answer was filed by respondent, who also filed a cross bill praying for divorce from bed and board. The case came on to be heard before Marshall, J., and resulted in a decree dismissing the libel on the part of the wife for divorce from bed and board and in a finding that the appellee, John L. Walker, was entitled to a decree in his favor upon the second ground alleged in the libel, to wit, indignities to his person.

In the absence of a jury trial, we are required to consider all evidence and express an independent conclusion thereon: Nacrelli v. Nacrelli, 87 Pa.Super. 162, 288 Pa. 1, 136A. 228. The testimony in this case having been taken in open court and the learned judge before whom the witnesses appeared having had an opportunity to observe their manner of testifying and the evidence produced by libellant and his witnesses being clearly sufficient to warrant the entry of a decree appealed from, the findings of fact by the court below are entitled to respectful consideration. "In the absence of a jury trial the appellate court is required to consider all the evidence and express an independent conclusion thereon. However, where the testimony of the parties to such action is irreconcilably conflicting, the conclusion of the judge who heard them, as to which is to be believed, will not be lightly disturbed on appeal." Koontz v. Koontz, 97 Pa.Super. 70.

John L. Walker, the libellant, who was a widower, and Mary Jackson Walker were married on August 19, 1926. At the time of their marriage, libellant had two daughters, one aged 14 and one aged 9; and the respondent had been a friend of the family for many years. A short time after their marriage, the parties took up housekeeping at No. 200 Richland Lane, Pittsburgh, Pa., in a house owned by libellant, where they lived until May 11, 1931, when libellant left the house taking with him his younger daughter; libellant's older daughter was at that time at boarding school.

The bill of particulars filed by libellant alleges fourteen separate particulars which finally consummated in the final quarrel and disagreement when libellant left their home. It is not our purpose to narrate in detail the testimony produced by libellant but we shall condense it to show such circumstances as we believe justified the entry of a decree.

A series of disagreements, quarrels and indignities was established by libellant's testimony. In May, 1928, there was a family quarrel, when respondent scratched libellant's face in three or four places, used abusive language and made things so unpleasant that the children and libellant packed their clothes and started to leave the house, when respondent begged them not to do so said she was sorry and promised not to do those things again. In August, 1929, while on a trip to Missouri, respondent quarreled with the younger daughter Mary, slapped both children, called the children and libellant abusive names, swore at libellant and kicked him several times. In September, 1929, another quarrel arose, when respondent knocked off libellant's glasses and remarked that she wished they might cut his eyes; she kicked him, and bit his thumb so that he was required to visit a physician and the thumb was badly swollen for several weeks. It was on this occasion that libellant suffered a black eye. In October, 1929, there was another quarrel in which respondent called libellant vile names, choked him, struck him, kicked him, and threatened to kill him. In March, 1930, when libellant was discussing their financial condition with his wife, she replied that it was none of her business what his income was, used vile language and cursed him. In August, 1930, while on a trip to Queen City, Missouri, the home of libellant's mother, respondent became incensed at some alleged discourtesy which libellant's younger daughter had shown toward her and insisted upon respondent taking his daughter out of bed at two o'clock in the morning to apologize to respondent; at the same time, respondent insisted that libellant's mother, who was past seventy years of age, get out of bed and apologize for some discourtesy. The next morning, respondent remained in bed until they were serving dinner when she came to the door and commanded libellant to come to her. Libellant replied that he was serving dinner and said that he would come just as soon as he was through. Respondent then came to the table, grabbed the carving knife out of libellant's hand and slapped his face several times. She started for the younger daughter Mary who went to the living room and was followed by respondent where she held the child in a corner, beat her and slapped her with her fists and hands, called the child a contemptible little hussy and when libellant attempted to interfere, respondent slapped him several times. In September, 1930, on a Sunday morning, the parties quarreled when respondent abused him, kicked him, slapped him, and then left the house in her car and came back a short time later when she continued the quarrel and argument until the latter part of the afternoon when libellant went to his office and slept on the davenport. In January, 1931, there was another quarrel when she used vile language and cursed him. In April, 1931, there was a quarrel when she made threats to kill him. On another occasion, when libellant returned home quite late, he went to respondent's room and found her in bed fully clothed. Respondent then demanded that the younger daughter Mary, who was in bed at the time, be brought to her to make some explanation. Mary was aroused and brought to the room of her step-mother and after being questioned the child said she did not know what respondent was talking about. She called the child a dirty little hussy, a whore and a street walker, said the child was putrid and not fit to be under the same roof. The daughter denied the accusations made and when respondent was asked for the basis of her accusations, she stated that she had obtained the information from Mary's diary. On another occasion, when libellant failed to appear at a reception, she accused him of not wanting to sit with her. A quarrel ensued when they returned to their home and respondent struck the libellant on the head with a hand mirror, threatened to kill him, and swore at him. In the early part of May, 1931, a quarrel arose over the daughter Mary because she was late in returning from school. She charged the daughter with telling falsehoods, called her a liar and a hussy, picked up a glass from the table and threw it at her and continued to pick up dishes and throw them at her until dishes were scattered all over the dining room floor. Respondent used vile language to both libellant and his daughter. She slapped the child and told libellant that if he had any conversation with the daughter, it would be in her presence and that if either Mary or he said anything about her or her family "she would brain us with the first thing she would get her hand on." She then rushed out of the living room and came back and put something under the cushion of the davenport, which libellant discovered to be a carpenter's claw hammer. On May 11th, the date of the separation, when returned to his home, he found his daughter Mary and respondent in Mary's room and Mary was crying. When he came in, respondent said it was a good thing he came when he did or she would have killed Mary. She had been kicking and choking the child; she had marks on her neck. Respondent said the quarrel had been about Mary's conduct, and that the child had been impudent and saucy. A short time later when Mary was in the kitchen, respondent insisted that Mary stand in a certain spot for more than thirty minutes. Respondent then threw a golf ball at the child. Respondent then said Mary would have to get out of the house and if she did not she would kill her. During this quarrel, respondent's mother called on the telephone and after respondent hung up the receiver she said she was going to get her mother and that Mary had better not be there when she got back or she would kill her, and "that I had better not be there either or she would kill me." During this quarrel, respondent called Mary vile, contemptible names, and charged her with...