Leonard F. Markel, Jr., Alexander Schamban, Philadelphia, for appellant.
A. Benjamin Scirica, Walton Coates, and Smillie, Bean & Scirica, all of Norristown, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross and Arnold, JJ.
[ 167 Pa. Super. Page 112]
The parties were married on May 4, 1947; the final separation occurred on January 19, 1948, when respondent left her husband in their common home in Bridgeport, Pennsylvania, and returned to her parents in nearby Philadelphia. The master, acknowledging 'considerable difficulty with this case', nevertheless resolved the issue of credibility in favor of the libellant and found the single charge of indignities sustained by his testimony. The court, too, admitted uncertainty in disposing of the exceptions to the master's report, in stating: 'The written testimony is not convincing beyond a doubtful balance'. But the court nevertheless adopted the master's estimate of the credibility of libellant and entered a decree of divorce. These expressions of doubt by both the master and the lower court, at the very outset seriously question whether the charge has been sustained by that clear and satisfactory evidence essential to the granting of a divorce. Notwithstanding our due regard for the careful and conscientious analysis of the evidence by the master and his estimate of the credibility of the witnesses, our conclusion from an independent consideration of the whole record is that the decree must be reversed.
The respondent was a native Italian; libellant also was of Latin blood. In temperament both were volatile; they undoubtedly were incompatible but only in the sense that neither was willing to make the adjustment necessary to a reasonably successful marriage. Certainly, in any view of the testimony, the conduct of the respondent was not above criticism but the libellant also was at fault. We need not decide, however, whether they were so nearly equally at fault as to leave them where they put themselves and reverse on the familiar principle quoted in Goshorn v. Goshorn, 163 Pa. Super. 621, 63 A.2d 135.
[ 167 Pa. Super. Page 113]
In October, 1946, about seven months before the marriage, libellant on his discharge from military service set up an office and started the private practice of his profession as a dentist, in Bridgeport. He was industrious and ambitious. In our view the source of much of the dissension between the parties is attributable to his inordinate determination to make a success of his practice even at the sacrifice of his marriage. He worked long hours during the day and often until 8:30 in the evening. His industry was rewarded; at the time of the separation his gross weekly earnings were more than $300.
The marriage got off to a bad start. At the wedding reception the respondent expressed impatience with her husband for handing a wedding gift of an envelope, apparently containing money, to his mother to keep for him, rather than to her. If there is foundation for the tradition that wedding gifts go to the bride, whatever embarrassment this incident caused the libellant, in the presence of one of the wedding guests, was invited by him.
Libellant complains of his wife's repeated desire to go to Philadelphia to visit her parents and of her insistence that he take her there. We are unable to find evidence of indignities in this conduct. Respondent was a stranger in Bridgeport and she had a natural fondness for her parents. Moreover there is no evidence of other than cordial relations between libellant and his wife's parents. He complained that after work at night he was too tired at times, even for the short trip to Philadelphia. It seems reasonably clear that arrangements could have been made to relieve him on that score. Respondent had applied $1000 of her own money on the purchase price of an automobile bought jointly by the parties. She was a qualified driver but was never allowed the use of the car unless the libellant was with her. It would appear that he might at least
[ 167 Pa. Super. Page 114]
have permitted her to drive the car to Philadelphia in the daytime ...