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WIGGINS v. WIGGINS (07/17/52)

July 17, 1952

WIGGINS
v.
WIGGINS



COUNSEL

Pershing N. Calabro, Philadelphia, for appellant.

Michael C. Rainone, Philadelphia, for appellee.

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

Author: Dithrich

[ 171 Pa. Super. Page 299]

DITHRICH, Judge.

Plaintiff and defendant entered into a common-law marriage in April, 1936. Plaintiff was then about 28 years of age and the defendant was about 32. They entered into the marriage relationship in Swedesboro, New Jersey, lived for a short time in Woodstown, New Jersey, and moved to Philadelphia in 1944. While living in New Jersey plaintiff was steadily employed, and defendant occasionally employed, as a field hand. They are both members of the colored race. After moving to Philadelphia plaintiff obtained employment in the Sun Shipyard in Chester, Pennsylvania, and was steadily employed there as an assistant fireman until sometime in 1946 when he secured a position as a janitor at the Pennsylvania Working Home for Blind Men, 36th Street and Lancaster Avenue, Philadelphia, where he was still working at the time of the hearing.

While they were living in New Jersey defendant twice left plaintiff and went to Philadelphia, her native habitat, and in September or October of 1944 she went there to stay. Plaintiff joined her there the following December and they lived together on and off until September, 1945, when they finally separated. Plaintiff then obtained a room at 4239 Ogden Street, Philadelphia, where he was living when he filed his libel in

[ 171 Pa. Super. Page 300]

    divorce. He was granted a decree on the ground of indignities and cruel and barbarous treatment.

Appellant bases her appeal first on lack of jurisdiction, contending that plaintiff had not complied with the one-year residence requirement of The Divorce Law of 1929, 23 P.S. ยง 16. Upon our review of the testimony we agree with the learned court below that 'While the master might have permitted a wider latitude for cross-examination as to the plaintiff's residence, * * the evidence is overwhelming that plaintiff was a bona fide resident of Pennsylvania within the requirements of the divorce statutes.' Her complaint that the master did not make a satisfactory investigation of plaintiff's residence is nullified by the fact, as stated in the master's report, that his finding as to plaintiff's residence 'is based not only [on] the evidence of the witnesses [including that of the landlady] but the fact that the plaintiff was present at 4239 Ogden Street, Philadelphia, Pa., when he [the master] called there to verify his address personally.'

We are satisfied that the record discloses full and complete observance of the rule that 'the court or master on its behalf should take up the investigation of any fact, the determination of which is material to the issue involved.' Bonomo v. Bonomo, 123 Pa. Super. 451, 454, 187 A. 222, 224; Cortese v. Cortese, 163 Pa. Super. 553, 63 A.2d 420.

Appellant's other complaint is that plaintiff-appellee failed to sustain the burden of proving the charges alleged in his complaint. While we have made our requisite independent review of the testimony, we have been aided by an extensive and thorough report of the master and an able and comprehensive opinion by ...


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