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FOLEY v. FOLEY (12/09/58)

December 9, 1958

FOLEY
v.
FOLEY, APPELLANT.



Appeal, No. 181, April T., 1958, from decree of Court of Common Pleas of Allegheny County, Oct. T., 1956, No. 1998, in case of John E. Foley v. Gertrude Foley. Decree affirmed.

COUNSEL

Clyde P. Bailey, with him Thomas P. Mulvaney, for appellant.

J. D. Golding, for appellee.

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

Author: Watkins

[ 188 Pa. Super. Page 294]

OPINION BY WATKINS, J.

This is an appeal from a decree of the Court of Common Pleas of Allegheny County, granting John E. Foley, the appellee husband, an absolute divorce from Gertrude Foley, the appellant wife, on the grounds of desertion and indignities.

The complaint originally charged desertion alone but was amended to include indignities and cruel and barbarous treatment. The master recommended a divorce on the ground of desertion and found that the husband was not entitled to a divorce on grounds of indignities nor cruel and barbarous treatment. Exceptions were filed by the wife and the court below sustained the master's finding as to desertion, and in addition to desertion, found him to be entitled to a divorce on the ground of indignities.

"Neither the court below nor this Court can escape the burden of a careful consideration of the evidence to ascertain if it establishes the statutory grounds for a divorce. The rule generally applicable to proceedings before a master or an auditor, that a finding of fact will not be disturbed except for manifest error, is not applicable to divorce cases." Boyer v. Boyer, 183 Pa. Superior Ct. 260, 263, 130 A.2d 265 (1957).

Of course, the master's report is entitled to the fullest consideration as regards the credibility of witnesses as he has seen and heard them. The court below, in reading the record can apply the law to the facts just as easily as the person who saw and heard the witnesses. The appellate Court has the same responsibility on appeal.

The parties were married on December 6, 1945 when they were both 28 years of age. There are no children. At the time of the marriage the husband was a part time student at Duquesne University and was working for an accounting firm. The wife was a registered

[ 188 Pa. Super. Page 295]

    nurse and during her married life continued to be employed at various hospitals ...


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