Archibald M. Matthews, Somerset, for appellant.
Clarence L. Shaver and Daryle R. Heckman of Shaver & Heckman, Somerset, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross and Gunther, JJ.
[ 172 Pa. Super. Page 391]
In the quite recent case of Hunter v. Hunter, 169 Pa. Super. 498, at pages 499, 500, 83 A.2d 401, at page 402, we had occasion to say: 'On a charge of indignities the lower court entered a decree of divorce. In spite of the fact that the master, from a patient analysis of
[ 172 Pa. Super. Page 392]
volumes of testimony, recommended a decree, we find it necessary to reverse. The issue does not depend upon the credibility of witnesses but rather on the significance of undisputed facts established principally by plaintiff's own testimony which in our view reveal an injured but not an innocent husband. [Emphasis added.] Under our divorce law -- as amended by the Act of March 19, 1943, P.L. 21, 23 P.S. § 10 -- to obtain a divorce from the bond of matrimony, a complaining spouse must be both injured and innocent.' The same principle applies to this case.
The master in his report recommending the decree said: '* * * the marriage relationship has been a stormy one almost from its beginning resulting in a separation as early as 1937, another separation in 1947 and a final cleavage in 1949. * * * the marital difficulties became most serious in about the year 1945 and continued thus until the final parting on October 13, 1949, and it is this period of about four years which is [here] vitally involved.'
The parties were married June 13, 1932, when defendant was 19 years of age and plaintiff 38, or twice the age of defendant. One child, a daughter, was born of the marriage January 16, 1945; another child, also a daughter, had been adopted November 19, 1943. It is in our opinion highly significant that throughout his testimony plaintiff testified largely from typewritten notes which he began making 'As far back as 1945,' the year their child was born, and, as stated by the master, the year in which 'the marital difficulties became most serious,' continuing 'until the final parting on October 13, 1949.' When asked on cross-examination if he had been preparing evidence against his wife over a period of five years he answered, 'No. I didn't know whether we would have a case but I was going to have a few notes ready in case we did.' He
[ 172 Pa. Super. Page 393]
said the first note he kept was dated July 19, 1945, six months after the birth of their child.
Not only did he refer to his notes in testifying, but in general he was an extremely cautious, deliberate and, at times, evasive witness. For example, when asked how old defendant was when he married her he said, 'A moment of computation and I will answer that.' When asked if he did not think that the difference in their ages may have had something to do with the difference in their opinion as to how the home should be managed in the first year of their marriage, he answered, 'No. If your face is dirty, your face is ...