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DELLO BUONO v. DELLO BUONO (09/16/60)

September 16, 1960

DELLO BUONO
v.
DELLO BUONO, APPELLANT.



Appeal, No. 446, Oct. T., 1959, from decree of Court of Common Pleas No. 4 of Philadelphia County, June T., 1950, No. 7974, in case of Domenico Dello Buono v. Elena Del Franco Dello Buono. Decree reversed.

COUNSEL

Joseph J. Frieri, with him Herman Eisenberg, and Rocco J. Costanzo, for appellant.

Vincent P. Froio, for appellee.

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

Author: Montgomery

[ 193 Pa. Super. Page 119]

OPINION BY MONTGOMERY, J.

Defendant-wife appeals from a decree awarding her husband an absolute divorce on the grounds of desertion

[ 193 Pa. Super. Page 120]

    and indignities to his person. The master had recommended dismissal of the complaint.

The appeal is based on certain alleged trial errors and the insufficiency of the evidence to support the decree.

The record consists of 595 typewritten pages of testimony, which we have read completely and re-read since we are required to consider the evidence de novo, pass upon its weight and upon the credibility of the witnesses, and reach an independent conclusion upon the merits. Rankin v. Rankin, 181 Pa. Superior Ct. 414, 124 A.2d 639.

In awarding the husband a divorce and thereby refusing to accept the recommendation of the master, the lower court entirely disregarded, as incredible, the testimony of the wife and all of her witnesses. Since it did not see and hear the witnesses, its action was based solely upon its consideration of the record. Our examination of the same record on the same basis leads us to an opposite conclusion. We are impressed by the logic and reasonableness of the wife's testimony, supported by that of her corroborating witnesses, and also by the fact that she has raised her family and held the devotion and respect of her children; and we are unimpressed by the testimony of the husband, which appears for the most part to consist of bold and reckless statements based entirely upon unfounded suspicion and an arrogant attitude.

As we view the record, the facts are as follows: The parties were married on June 26, 1930, in Italy, at which time the appellant was 20 years of age and a citizen of the United States; and the appellee was 37 years of age and a citizen of Italy. After their marriage they resided in Italy until 1936, during which period it was necessary ...


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