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LOMBARD v. LOMBARD (12/14/60)

December 14, 1960

LOMBARD
v.
LOMBARD, APPELLANT.



Appeal, No. 143, April T., 1960, from decree of Court of Common Pleas of Allegheny County, July T., 1954, No. 2071, in case of Samuel Anthony Lombard v. Carmella Joan Lombard. Decree reversed.

COUNSEL

Harry Alan Sherman, for appellant.

Stephen A. Zappala, with him Zappala & Zappala, for appellee.

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

Author: Ervin

[ 194 Pa. Super. Page 163]

OPINION BY ERVIN, J.

The judge of the court below, who heard the testimony without a jury, granted the husband a divorce on the ground of indignities. The wife appealed.

The trier of facts, who sees the parties and their witnesses and hears them testify, has a distinct advantage in determining which of divergent or contradictory statements should be accepted as true. In

[ 194 Pa. Super. Page 164]

    divorce cases, however, where there has been no jury trial, the appellate courts may not escape their duty of examining the evidence de novo for the purpose of determining whether the charges alleged in the complaint have been sustained: Bobst v. Bobst, 357 Pa. 441, 444, 445, 54 A.2d 898; Hurley v. Hurley, 180 Pa. Superior Ct. 364, 366, 119 A.2d 634.

Appellant argues that the plaintiff's case is based solely upon his own testimony uncorroborated by other witnesses or evidence. A decree may be supported by the testimony of the plaintiff alone. Where, however, the testimony of the plaintiff alone is contradicted and shaken by the defendant and where there are no convincing circumstances warranting a disregard of the contradictory evidence, a case has not been made out: Pore v. Pore, 189 Pa. Superior Ct. 615, 618, 151 A.2d 650.

We gather from a thorough reading of the record that the parties were married on February 18, 1950. The plaintiff-husband is 35 years of age and the defendant-wife is 32 years of age. The husband bought a house in the City of Pittsburgh prior to the marriage. Shortly after the marriage the parties moved into the first floor of the home, the second floor being rented to a tenant for a rental of $45.00 per month. The parties have one child, a girl eight years of age. The parties first separated on May 27, 1954 and the husband filed a complaint in divorce. The parties reconciled their differences and continued to live together thereafter until the final separation, which occurred March 4, 1958. The wife and her daughter now live with her parents in the City of Pittsburgh. Prior to the marriage the husband had been in the armed ...


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