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BENCH v. BENCH. (11/15/62)

November 15, 1962

BENCH, APPELLANT,
v.
BENCH.



Appeal, No. 278, Oct. T., 1962, from decree of Court of Common Pleas of Carbon County, Jan. T., 1960, No. 3, in case of Metro Bench v. Anna Bench. Decree affirmed.

COUNSEL

William N. Kanehann, Jr., with him Dower, Kanehann, Huston, McDonald & Cahn, for appellant.

Marshall J. Seidman, for appellee.

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

Author: Wright

[ 199 Pa. Super. Page 406]

OPINION BY WRIGHT, J.

On October 16, 1959, Metro Bench filed a complaint in divorce a.v.m. against his wife, Anna Bench, on the ground of desertion. A master was appointed on May 24, 1960. After taking testimony at five hearings, the master filed a report on June 12, 1961, in which he

[ 199 Pa. Super. Page 407]

    recommended that a divorce be refused. On March 15, 1962, the court below overruled the husband's exceptions, and dismissed the complaint. The husband has appealed.

There is a voluminous record in this case. The master's report covers forty-three pages, and the opinion of the court below twenty-nine pages. Each contains a painstaking review of the testimony. The parties were married on June 2, 1934. Although the complaint alleges that the desertion occurred on March 21, 1957, on which date the wife left the home, appellant thereafter agreed to the entry of a support order, and marital relations continued until October 13, 1957. Appellant takes the position that the two-year period commenced to run on the date last mentioned. At the time of the first hearing appellant was forty-eight, and his wife was forty-seven years of age. No children were born to their union. He is an employe of the New Jersey Zinc Company, and she is a dental assistant. In the words of president Judge HEIMBACH, "the real cause of this marriage break-up was the religious differences existing between the parties. Plaintiff was a member of St. Mary's Russian Orthodox Church of Coaldale, whiel defendant was a member of the Ukranian Church of Palmerton, a branch of the Roman Catholic Church".

Although the appellate court is not bound by the master's appraisal of the weight and credibility of the testimony, if his conclusion is based upon a searching analysis of the evidence and has been approved by the court below, it is entitled to considerable weight: Schwertz v. Schwertz, 197 Pa. Superior Ct. 225, 177 A.2d 139. Both the master and the court below decided the pivotal issue of credibility in favor of the wife. Our review of the record leads us to the same conclusion. We will therefore briefly summarize her testimony.

[ 199 Pa. Super. Page 408]

Following the marriage, the wife attended appellant's church. However, during the period of his military service in the second world war, she resumed attendance at her own church. After his return, disputes concerning religion commenced. They gradually became more frequent and more violent. Appellant ridiculed his wife's faith, tore up her church envelopes, and destroyed her religious articles. He told his wife's priest not to enter the home. During one of their arguments, appellant struck his wife in the chest and across the face. Following an argument in October 1956, appellant slept in a separate bedroom, and refused to eat with his wife. In January 1957, appellant stated to his wife that they could not continue to live together unless she signed a paper which he submitted.*fn1 The wife was willing to comply with all of her husband's demands except to leave her church. When she refused to sign the paper, appellant became profane and ordered her out of the house. Appellant continued to insist that his wife either sign the paper and live up to its terms, or leave the marital home. It should perhaps be noted that the home is owned by the parties as tenants by the entireties. The wife finally rented an apartment, to which she moved on March 21, 1957. She testified as follows: "Q. Then in ...


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