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BOYD v. BOYD. (06/15/61)

June 15, 1961

BOYD, APPELLANT,
v.
BOYD.



Appeal, No. 49, April T., 1960, from order of Court of Common Pleas of Beaver County, Sept. T., 1957, No. 139, in case of Audrey Boyd v. Calanthe Boyd. Order reversed.

COUNSEL

Henry J. Albaugh, with him W. Walter Braham, for appellant.

James B. Ceris, for appellee.

Before Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (rhodes, P.j., absent).

Author: Ervin

[ 195 Pa. Super. Page 372]

OPINION BY ERVIN, J.

Audrey Boyd, the plaintiff, has appealed from the order of the court below dismissing his complaint and amended complaint for a divorce a.v.m.

The original complaint averred indignities to the person but this was subsequently amended to include adultery. The master recommended a divorce on the ground of adultery. The court below found (1) that the defendant committed adultery but (2) refused the divorce because it found that the defense of recrimination had been properly established. We agree with the court below as to the first conclusion but disagree as to the second.

"It is our duty to examine the evidence de novo for the purpose of determining whether the charges alleged in the libel have been sustained. ... While we are not concluded by the master's findings, his judgment upon the question of credibility is entitled to the fullest consideration; and this is especially true when his report, as in the case at bar, presents a searching analysis of the testimony." Boyles v. Boyles, 179 Pa. Superior Ct. 184, 186, 187, 116 A.2d 248.

These parties were married March 12, 1945 and thereafter cohabited as husband and wife until April 19, 1957, with the exception of several periods when they were separated. There were no children of this marriage but each had a child at the time of their marriage. Plaintiff had been previously married to Jennie Hazel Clark, from whom he was divorced in 1943. At the time of the hearing plaintiff was 42 years of age and defendant was 37 years of age. Plaintiff worked

[ 195 Pa. Super. Page 373]

    for Jones and Laughlin as a steel worker and defendant did housework for people by the day.

The master and the court below found that the defendant committed adultery with one Gene Taylor on two occasions in May 1957 and on one occasion on December 24, 1957. We have carefully read all of the ...


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