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MCCAULEY v. MCCAULEY (10/01/57)

October 1, 1957

MCCAULEY
v.
MCCAULEY, APPELLANT.



Appeal, No. 43, Oct. T., 1957, from decree of Court of Common Pleas No. 4 of Philadelphia County, Dec. T., 1953, No. 1207, in case of Robert Alban McCauley, also known as Robert A. McCauley v. Vreny L. A. McCauley. Decree affirmed.

COUNSEL

George A. Butler, for appellant.

Francis E. Marshall, for appellee.

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

Author: Hirt

[ 184 Pa. Super. Page 362]

OPINION BY HIRT, J.

Plaintiff, a pilot in the American Air Force, was stationed in Germany when the parties were married in Wiesbaden on June 14, 1948. The defendant, a German by birth resided in Berlin. After the marriage

[ 184 Pa. Super. Page 363]

    the parties remained in Germany until July 30, 1948 when they came to America. Following their arrival at Philadelphia they lived with plaintiff's mother in the home at 4532 Franklin Avenue. From there they went to the City of New York where they lived at various addresses until June 1949 when the defendant went back to Berlin and did not return for eleven months. In the interval the plaintiff remained in New York. On defendant's return in 1950 they lived on Long Island until February 7, 1951; plaintiff then was recalled to active duty at Randolph Air Force base in San Antonio, Texas. The defendant accompanied him and lived with him near the base in a house which they rented. When in June 19, 1951, the plaintiff was transferred to an Air Force base in California the defendant was unwilling to accompany him. She then left him and returned to Germany. The separation was final. On December 1, 1951 the plaintiff was ordered overseas to Japan and he was in active service from December 20, 1951 until February 17, 1953, stationed at Okinawa. At the end of the Korean hostilities he was assigned to Langley Air Force Base in Virginia and he is presently stationed there. Since the marriage in 1948 the parties have lived together a total of but 24 months.

The complaint in this case was filed on December 16, 1953 charging indignities and desertion; service on defendant was had in Europe by registered mail on January 6, 1954. A master was appointed and the defendant was given more than one month's notice of a hearing scheduled for May 4, 1954. When she indicated that she was without sufficient funds, but wished to defend the action, experienced and competent counsel was assigned to represent her through the Legal Aid Society of Philadelphia. Six hearings were had before the master between May 4, 1954 and February

[ 184 Pa. Super. Page 3648]

, 1955. Defendant did not appear in person at any of the hearings but at the last two her counsel cross-examined plaintiff thoroughly and at length. The master filed his report recommending a divorce which was approved by the court on March 14, 1955 and a rule for final decree was entered. During the pendency of the rule and prior to the return day, the defendant came to America and appeared in this action for the first time. On her request to be heard, the court referred the case back to the master on May 13, 1955. Thereafter eight additional hearings, attended by both the defendant and her counsel, were held. At the conclusion of the hearings the master filed a supplemental report, again recommending a divorce, but on the ground of indignities alone, and the court in accordance therewith entered a final decree on June 25, 1956, from which the defendant took the present appeal. After reading the entire record of the testimony, comprising 985 pages in the transcript, we are convinced that the charge of indignities has been sustained. We well might dispose of the issues, as did the lower court, by adopting the recommendation of the master based on his impartial and discriminating review and appraisal of the testimony. However, we will refer briefly to the questions raised by defendant's counsel, who has represented her well since appearing in her interest.

Here, as before the master, the defendant argues that the court was without jurisdiction, alleging that the plaintiff in bringing the action was not a bona fide resident of Pennsylvania. There is no merit in the contention. Plaintiff was born in Philadelphia and resided in his parents' home until he entered military service in 1942. His service in this country until February ...


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