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September 26, 1951



Walter J. Wagner, Pittsburgh, for appellant.

Edward A. Tobias, Alice D. Tobias and Tobias & Weilersbacher, Pittsburgh, for appellee.

Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.

Author: Ross

[ 169 Pa. Super. Page 575]

ROSS, Judge.

On October 4, 1949, Roy H. Uhlinger, Sr. (hereinafter referred to as the plaintiff) filed a complaint in the Court of Common Pleas of Allegheny County praying for a decree of absolute divorce on the grounds of indignities to the person and cruel and barbarous treatment. Ten days later, on October 14, 1949, his wife, Frances E. Uhlinger (hereinafter referred to as the defendant) filed a complaint praying for a decree of divorce from bed and board on the same grounds. The two actions were consolidated for trial and were heard in the court below by Judge Kennedy sitting without a jury. A decree of divorce was entered for the plaintiff on the ground of indignities and the defendant's complaint was dismissed. From the decree of divorce and from the order dismissing her complaint, the defendant has taken these appeals.

The parties were married in Pittsburgh on March 25, 1948. At this time the plaintiff was in his early sixties and the defendant some 20 years younger. It was not the first marriage for either party. The plaintiff was a widower, the wife to whom he had been married for 30 years having died in March of 1947. Of plaintiff's marriage to his first wife were born three children, Roy, Jr., Marilyn and Vivian. Roy, Jr. was married and had his own home, but the girls, Marilyn and Vivian, though of legal age, resided with their father at his home in Mount Lebanon Township, where

[ 169 Pa. Super. Page 576]

    he had resided for 25 years. For the defendant, the marriage to the plaintiff was her third. She had been married while quite young, and of this marriage had one daughter, Eleanor. Defendant's second marriage, some time in the early 1930's, was to Brigadier General William R. Dunlap, who died in 1940. One child, Jenny Lou, was born of this marriage.

The plaintiff had been a member of the National Guard of Pennsylvania continuously from 1911 until December 1949. He had been in active service with the National Guard on the Mexican Border in 1916 and had served in both World Wars, being discharged in 1949 with the rank of lieutenant colonel. He had for many years been an employee under the United States Army Engineers for the Pittsburgh district and continued in this employment after his marriage to the defendant. The defendant had been a teacher in the public schools of the City of Pittsburgh prior to her marriage to General Dunlap. After his death she resumed her work as a teacher and continued in that occupation up to the time of her marriage to the plaintiff. After a short wedding trip the parties took up residence in the plaintiff's Mount Lebanon home. Until the departure of Marilyn and Vivian under circumstances related later in this opinion, the household consisted of the plaintiff and his two daughters and the defendant and her daughter, Jenny Lou.

As to the various incidents said to constitute indignities to the person, the record discloses irreconcilable conflicts in the testimony at every turn of the page. Judge Kennedy concluded that the credible testimony was adduced by the plaintiff and his witnesses, and this judgment in this particular is entitled to the highest consideration in an appellate court. Bobst v. Bobst, 357 Pa. 441, 54 A.2d 898; Handy v. Handy, 163 Pa. Super. 49, 60 A.2d 415. We recognize, of course, that it is our duty to examine carefully the

[ 169 Pa. Super. Page 577]

    testimony and base our conclusion on our own independent judgment; yet at the same time we realize that the judge who saw the witnesses, observed their manner, and heard them testify, had a better opportunity to determine their credibility than we, who must rely upon what appears in 'cold type'. Tanner v. Tenner, 159 Pa. Super. 637, 49 A.2d 875. We have read with care the conflicting testimony of the parties and their respective witnesses, weighing such testimony to discover inherent improbabilities, inconsistencies and contradictions, bias and interest, opposition to incontrovertible physical facts, patent falsehood and other factors by which a finding upon the issue of credibility may be tested by an appellate court. Cf. Smith v. Smith, 157 Pa. Super. 582, 43 A.2d 371. We ...

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