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COWHER v. COWHER (10/01/52)

October 1, 1952

COWHER
v.
COWHER



COUNSEL

August L. Sismondo, Charleroi, for appellant.

No appearance or book for appellee.

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

Author: Arnold

[ 172 Pa. Super. Page 99]

ARNOLD, Judge.

The defendant-wife appeals from a decree of divorce granted on the grounds of desertion. The case was heard before a master who recommended a decree, and over the exceptions of the defendant the common pleas sustained the master. It is well settled that it is our duty to make an independent examination of the testimony. In doing so we, of course, keep in mind that the master who heard and saw the witnesses had an advantage that we do not possess. After a very careful examination of the record we arrive at the conclusion that the decree must be reversed.

The defendant admits that she left the common home but (as will be hereinafter discussed) seeks to justify that act. Neither the master nor the court below makes any specific finding as to the lack of credibility

[ 172 Pa. Super. Page 100]

    of the defendant, except insofar as findings of fact are against her.

The parties were married in 1936, and there were several separations before the date of the final separation on March 30, 1946. When the parties were married the wife was a cripple requiring the use of two crutches. On one of the earlier separations she obtained an order of support against him, and while this is not conclusive, it is entitled to weight. At his request she then returned home on his written promise that he would be truthful; would help her around the house and make her happy and not cause her any more worry; and that he would not argue with her over financial matters. He also orally promised that he would not drink so much. As soon as he got her back he resorted to the same treatment of her as had existed before the separation. He began chiding her for having had him arrested, and he refused to permit her relatives to visit the house. He would get drunk and vomit all over the living room; on at least one occasion he urinated in the living room; and in short his treatment of her was beyond excuse. It is claimed that the conduct merely shows incompatibility. In our opinion it is much more than that, to wit, it is a course of conduct over the years that clearly discloses both indignities and a husband without love for his wife.

She had been hospitalized from March 13 to March 27, 1946, having undergone an operation. Upon her return to the home he again started to drink heavily, and on the 30th of March he was intoxicated, charged that she was not fair about money, threatened to twist her neck, and made an assault; whereupon she threw a cup of coffee at him. He thereupon grabbed her by the hair and ordered her 'to get the hell out of here,' and slapped her and knocked her to the floor. She then left the house. This brief recitation is from the

[ 172 Pa. Super. Page 101]

    defendant's testimony, but in a large measure she was corroborated and we see no reason to disbelieve her. In addition, ...


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