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DECKER v. DECKER (04/13/60)

April 13, 1960

DECKER
v.
DECKER, APPELLANT.



Appeals, Nos. 478 and 479, Oct. T., 1959, from order and decree of Court of Common Pleas No. 7 of Philadelphia County, June T., 1952, No. 7839, and Sept. T., 1952, No. 1976, in cases of Antoinette Decker v. Ralph Decker, and Ralph Decker v. Antoinette Decker. Order and decree affirmed.

COUNSEL

Michael E. Rainone, with him Alfeo P. Libetti, for wife, appellant.

Edmund P. Hannum, with him Thomas M. Hyndman, for husband, appellee.

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

Author: Ervin

[ 192 Pa. Super. Page 235]

OPINION BY ERVIN, J.

On August 29, 1952 Antoinette Decker filed a complaint in Common Pleas Court No. 7, Philadelphia, seeking a divorce a.m.e.t. from her husband, Ralph Decker. On October 6, 1952 Ralph A. P. Decker filed a complaint in Common Pleas Court No. 1, Philadelphia,

[ 192 Pa. Super. Page 236]

    seeking a divorce a.v.m. from his wife, Antoinette Decker. The latter case was transferred to Common Pleas No. 7 and the two cases were heard together. The testimony was heard by Judge GERALD A. GLEESON, following a custom in Common Pleas No. 7 of having a judge sit as a master in a contested divorce case. It consumed about one week of the judge's time to hear the testimony. While we do not like to be critical of this practice, it does seem to us to be a terrible waste of time in this day of crowded court calendars and one which could have been avoided by the use of a master from the bar. Judge GLEESON filed an opinion and entered an order dismissing both complaints. Exceptions were filed by the plaintiff in each case. The court in banc, consisting of President Judge JOSEPH SLOANE, and Judges GERALD A. GLEESON and FRANCIS X. McCLANAGHAN, unanimously dismissed the exceptions in the a.m.e.t. action, finding that the husband, Ralph Decker, did not commit indignities to the person, cruel and barbarous treatment or malicious abandonment of his wife, Antoinette Decker. In the a.v.m. action President Judge SLOANE and Judge McCLANAGHAN found that the husband had been driven from the marital home by the wife and her mother on May 15, 1946 and that the exclusion was without the consent of the husband and was willful and malicious within the meaning of the Divorce Act and granted him a divorce a.v.m. Judge GLEESON dissented. Antoinette Decker appealed in both cases.

We have carefully read the 711 typewritten pages of testimony and agree with the findings of the majority of the court below.

Much of the appellant's argument is addressed to the fact that the question of credibility should be decided as it was decided by Judge GLEESON, the judge who heard the testimony.

[ 192 Pa. Super. Page 237]

We repeat what has been so well said by Judge WOODSIDE in Boyer v. Boyer, 183 Pa. Superior Ct. 260, 262, 263, 130 A.2d 265: "It is incumbent upon us on appeal from a decree of divorce, except where there has been a jury trial, to review the testimony, and adjudge whether it sustained the complaint of the plaintiff. 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. Nor do the findings of fact made by a judge have the same effect on appeal as a verdict of a jury: McKrell v. McKrell, 352 Pa. 173, 179, 42 A.2d 609 (1945). We must examine for ourselves the testimony in cases heard without a jury and determine therefrom, independently of the findings of the master, or even the court below, whether in truth and in fact a legal cause of divorce ...


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