The opinion
Dissenting Opinion by
Van der Voort, J.:
Appeal is taken to this Court by Defendant, the unsuccessful party in the Court of Common Pleas grant of *151 divorce to Plaintiff — husband, pursuant to “The Divorce Law”, 1929, May 2, P.L. 1237, Section 60.
I have reviewed the entire record of the court below, and conducted an independent review of the facts, there having been no jury trial. Eifert v. Eifert, 219 Pa. Superior Ct. 373 , 281 A.2d 657 (1971); Goldfine v. Goldfine, 201 Pa. Superior Ct. 462 , 193 A.2d 695 (1963). I rely to a considerable degree on a history of the case filed by the trial judge, Honorable Donald O’Malley.
Plaintiff and Defendant were married in 1960 in France, while Plaintiff was present there serving in the armed forces of the United States. Defendant was and remains a French national. They moved to the United States and lived in various localities prior to assuming residence in Montrose, Susquehanna County, Pennsylvania. There were two children born of the marriage; Christine, age 13 and Bevin, age 4. Both children are in the custody of and reside with their mother, Defendant herein.
Aside from the usual domestic difficulties surfacing early in a marriage, and the unique problems of Defendant-wife’s adjustments to a new culture and customs, both of which I recognize without further comment, a course of conduct developed in 1966 which became the gravamen of Plaintiff’s argument in his Complaint in Divorce. Defendant found fault with Plaintiff’s profession and expressed complaints about his earning capabilities. On a number of occasions, Defendant allegedly held Plaintiff up to ridicule before their peers. Constant nagging and arguing may well establish a settled course of conduct which may clearly demonstrate that the love in a marriage has been replaced by hate, and this may establish grounds of indignities. Fodor v. Fodor, 221 Pa. Superior Ct. 321 , 292 A.2d 485 (1972).
It is not the function of this court to determine which party is blameless, but rather to examine the facts of this case and attempt to determine which party is the lesser *152 open to the charge of causing the situation of which libel-lant complains. Griffie v. Griffie, 220 Pa. Superior Ct. 461 , 289 A.2d 198 (1972). Based upon my study of the facts, I find Plaintiff is not both innocent and injured, the dual requirements to allow upholding the Order granting Plaintiff’s divorce. There is substantial testimony that Plaintiff engaged in a meretricious relationship while still subject to the bonds of matrimony and to the duty of supporting and maintaining a good home life for his children. I disagree with the learned trial judge only to say that the period between (1) the time when Plaintiff’s alleged grounds for divorce accrued and he separated from Defendant, and (2) his bringing this action, was not sufficiently long to discount testimony of his alleged and admitted affairs of the heart with a woman other than his wife. Plaintiff separated from Defendant in November of 1971 and brought this action on September 13, 1972, less than one year later. This is substantially less than the nine years which passed in Gillen v. Gillen, 195 Pa. Superior Ct. 60, 64 , 169 A. 2d 340, 343 (1961), wherein the Honorable Harry M. Montgomery, Judge, found that “grounds for divorce had fully accrued many years prior to this time and did not provoke the indignities of which she [appellee] complained.” I disagree with the lower court’s reliance upon the holding of this case. It appears obvious to me that Plaintiff Gehris' conduct in regard to an on-going and admitted affair with another woman provoked the Defendant’s hostilities. I would not find that either litigant is responsible to any lesser degree for the alleged indignities.
The weakness of the Plaintiff’s position was further illustrated by his testimony as to the incident which caused him to leave his wife and family. He had a hobby of jogging. This night he had been out running for two hours. When he returned his wife chided him saying “you spend more time with your running than you do with your children.” This remark he said made him so angry *153 that he decided to leave the common abode and did so. This impresses me as a most flimsy reason for breaking up a home.
My findings are made with all respect due and cognizance-of the finding of the Court below, who noted a pattern of hate and estrangement sufficient to grant divorce. But unless and until our Legislature, in its wisdom, may see fit to lessen the requirements of innocence and injury on the part of libellant, I believe that our Court is bound to its strictures in protecting the institution of marriage in our society.
I would not find Plaintiff — husband innocent and injured. Therefore, I would not find that Plaintiff has met his burden of proving indignities to himself.
I would reverse the order granting divorce.
PRICE, J., joins in this dissenting opinion.