Leonard M. Mendelson, Sidney A. Sanes, Pittsburgh, for appellant.
S. V. Albo, M. E. Catanzaro, F. E. Conflenti, Pittsburgh, for appellee.
Before Rhodes, P. J., and Hirt, Ross, Gunther, Wright, Woodside and Ervin, JJ.
[ 176 Pa. Super. Page 402]
This is an appeal from the order of the Court of Common Pleas of Allegheny County refusing Arnold G. Rech a divorce a. v. m.
The appellant filed a complaint against his wife, Louise M. Rech, on September 18, 1952 alleging cruel and barbarous treatment and indignities to the person and on November 25th amended the complaint to include adultery and named Edward Schaub as co-respondent. On February 19, 1953, after a master had been appointed in the above case, the wife defendant in that action filed a counter suit in which she sought a divorce from bed and board. She charged her husband
[ 176 Pa. Super. Page 403]
with cruel and barbarous treatment, indignities and adultery, naming 'Bobbie' Budin as co-respondent. After numerous and determined attempts on the part of the wife to prevent and delay the hearings, the two cases were joined the finally brought before the master June 8, 1953. All parties, including both co-respondents, appeared and were heard.
The master concluded that neither party is entitled to a divorce. Neither, he held, had proved by a preponderance of the evidence that the other was guilty of cruel and barbarous treatment or indignities. He found and held that the wife had failed to prove that the appellant had committed adultery with Roberta Budin, but held that his relations with her were of such a nature that he is not an injured and innocent spouse, and 'therefore is not entitled to a decree in divorce on the ground of his wife's misconduct with Edward Schaub.'
Exceptions were taken to the report and argued before one judge who disposed of the case with a curt, 'We have examined the findings of the Master and we fully concur.'
It is our duty, as it was the court's before, to not only examine the findings of the master, but to be satisfied by our '* * * own knowledge of the testimony that the averments of the libel have been proved by full and competent evidence.' Middleton v. Middleton, 1898, 187 Pa. 612, 615, 41 A. 291. 'His (the master's) findings have not the conclusiveness of those of an auditor or a master in chancery. They are entitled to consideration by the court, but it is the duty of the latter to consider all the evidence in the case to determine whether the conclusion reached by the master is supported by such weight of evidence as warrants a decree.' Rommel v. Rommel, 1926, 87 Pa. Super. 511, 512.
[ 176 Pa. Super. Page 404]
An examination of the record leaves no doubt that the wife was guilty of adultery with Edward Schaub. The master found, and the evidence supports, that they lived together as husband and wife for a period of five or six weeks in June and July 1951.
Was there condonation? The parties separated in May 1951. The wife contended that twice thereafter, once in July of 1951, and again in March 1952 she had sexual intercourse with the appellant. The master did not believe her; neither do we. But assuming she and appellant did have intercourse on these dates, the evidence shows that the appellant did not know of her living with Schaub until September 1952.
As a person cannot condone what he does not know, there could have been no legal condonation by the husband of the wife's adultery until he knew of it. Davis v. Davis, 1941, 145 Pa. Super. 473, 21 A.2d 419; Act of May 2, 1929, P.L. 1237, section 52, 23 P.S. § 52.
Where we part company with the master is in his holding that the appellant should be denied a divorce on the ground that he is not an injured and innocent spouse. The master's report showed great industry on his part and the facts were carefully considered and discussed by him. We do not differ with his findings of fact so much as we differ with his application of the law to the facts which he found.
An understanding of this point requires a review of some of the evidence.
The parties were married February 20, 1939 when he was 22 and she 20. They have two children. Barbara, who is mentally retarded, was born January 24, 1940; and Diana was born September 28, 1943. The appellant was graduated from the pharmacy school of Duquesne University in 1942 and ...