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BOYLES v. BOYLES (07/21/55)

July 21, 1955

BOYLES
v.
BOYLES, APPELLANT.



Appeal, No. 33, Oct. T., 1955, from decree of Court of Common Pleas of Blair County, March T., 1940, No. 179, in case of George R. Boyles v. Verna G. L. Boyles. Decree affirmed.

COUNSEL

Robert C. Haberstroh, for appellant.

John D. Rively, for appellee.

Before Rhodes, P.j., Ross, Gunther, Wright, Woodside, and Ervin, JJ. (hirt, J., absent).

Author: Ervin

[ 179 Pa. Super. Page 186]

OPINION BY ERVIN, J.

Verna G. L. Boyles, the defendant, has appealed from the decree of the Court of Common Pleas of Blair County granting a divorce a vinculo matrimonii to her husband, George R. Boyles, the plaintiff.

The libel was filed by plaintiff on May 18, 1940, and alleged as grounds for divorce (1) indignities to the person, and (2) desertion. After extended hearings the master, in his report filed January 27, 1941, concluded that the charge of indignities to the person had not been sustained by the evidence, but he recommended that a divorce be granted on the charge of desertion.

The court below refused to sustain exceptions filed by the defendant to the report of the master on January 29, 1941, which were not brought before the lower court for consideration and disposition until July 2, 1954, and held that the defendant had wilfully and maliciously deserted and absented herself from the habitation of the plaintiff for and during the term and space of two years and upwards. This appeal by the defendant followed.

It is our duty to examine the evidence de novo for the purpose of determining whether the charges alleged in the libel have been sustained. Bobst v. Bobst, 357 Pa. 441, 54 A.2d 898. While we are not concluded by the master's findings, his judgment upon the question of credibility is entitled to the fullest consideration; and this is especially true when his report, as in the case at bar, presents a searching analysis of the

[ 179 Pa. Super. Page 187]

    testimony. Wieber v. Wieber, 175 Pa. Superior Ct. 533, 106 A.2d 854.

The parties were married on December 21, 1921 in Altoona, Pennsylvania, and lived there until January 10, 1922, at which time they moved to Philadelphia, where they remained until May 30, 1922. They then returned to Altoona, where they lived until May 14, 1923, when they moved to Greenwood, Logan Township, Blair County, Pennsylvania, where they lived until September 19, 1925, the date of their separation. The plaintiff was employed in the blacksmith shop of the Pennsylvania Railroad Company at Altoona. The parties were forty-three years of age at the time divorce proceedings were begun in 1940 and there had been two children born of the marriage, a girl, Helen Lucille, born October 9, 1922, and another girl, Corrine Eleanor, born January 14, 1924. After the separation of the parties the defendant obtained an order in the Court of Quarter Sessions of Blair County against the plaintiff for the support of herself and their children in the amount of $25.00 per month, which was subsequently increased to $40.00 per month. At the time of the hearing the plaintiff was $900.00 in arrears on this order.

The nature of the indignities charged by the plaintiff is well summarized in the averments contained in the bill of particulars, as follows: "The indignities existing between March 16, 1923, and September 18, 1925, consisted in the constant and continuous picking, nagging and complaining of his said wife, the above named respondent. The above named Respondent also accused the above named Libellant with being friendly and intimate with other women, which accusations are absolutely unfounded.

"In addition thereto the said Respondent never performed her duties as a ...


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