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BUCKLEY v. BUCKLEY. (11/12/57)

November 12, 1957

BUCKLEY, APPELLANT,
v.
BUCKLEY.



Appeal, No. 176, Oct. T., 1957, from decree of Court of Common Pleas of Centre County, Sept. T., 1955, No. 361, in case of Lawrence Buckley v. Olive Buckley. Decree affirmed.

COUNSEL

F. Cortez Bell, with him Bell, Silberblatt & Swoope, for appellant.

David L. Baird, with him Baird & McCamley, for appellee.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.

Author: Rhodes

[ 184 Pa. Super. Page 466]

OPINION BY RHODES, P.J.

This is an appeal by plaintiff-husband from the decree of the Court of Common Pleas of Centre County sustaining exceptions to the master's report and refusing a decree of divorce in his action against his wife, the defendant. In his complaint appellant alleged as grounds for divorce (1) cruel and barbarous treatment, (2) indignities to the person, and (3) desertion. A bill of particulars was filed after which a master was appointed. The master filed his report recommending a decree on the three grounds alleged in appellant's complaint. Exceptions to the master's report were filed by defendant and sustained by the court below and a decree of divorce refused. From the action of the court below this appeal has been taken.

The court below, in an opinion by the late President Judge IVAN WALKER, concluded that the preponderance of the evidence was in favor of the defendant and that no compelling, imperious reasons had been established by appellant which should result in a severance of the marital relationship which had existed for almost twenty-seven years. See Moyer v. Moyer, 181 Pa. Superior Ct. 400, 409, 124 A.2d 632.

[ 184 Pa. Super. Page 467]

Appellant had the burden of proving his case by clear and convincing evidence that defendant had given him, the innocent and injured spouse, ground for divorce; moreover, there must be a preponderance of the evidence in his favor. Wasson v. Wasson, 176 Pa. Superior Ct. 534, 538, 108 A.2d 836. On our independent examination of the record we have concluded that appellant failed to meet this burden.

The parties were married on December 21, 1929, at Lewistown, Mifflin County. Two daughters were born of the marriage who were twenty-five and nine years of age at the time of the hearings in December, 1955. In September, 1930, appellant and defendant moved to the farm of appellant's parents near Lebanon, Pennsylvania. Following the birth of the elder daughter on October 3, 1930, defendant returned to the home of her parents at Wallaceton, Clearfield County. After a nonsupport action in the Court of Quarter Sessions of Clearfield County, in June, 1931, the parties returned to Lewistown where they resided in the home of the appellant's brother for several weeks. Appellant testified: "Well, I couldn't find work and she agreed to go back to her home [at Wallaceton] until I found work." Thereupon defendant returned to her home. During the ten-year period from June, 1931, to March, 1941, the parties lived apart. Appellant admitted that he furnished defendant and their daughter little, if any, support during this ten-year period.

In March, 1941, the parties resumed cohabitation and acquired a modest home in Phillipsburg, Centre County. From 1942 to 1945 they lived in Niagara Falls, New York, where appellant was employed. In the summer of 1944 an incident took place at Niagara Falls which has been emphasized in the present action. Appellant was accused by ...


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