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GOLDFINE v. GOLDFINE. (09/12/63)

THE SUPERIOR COURT OF PENNSYLVANIA


September 12, 1963

GOLDFINE, APPELLANT,
v.
GOLDFINE.

Appeal, No. 107, Oct. T., 1963, from order of Court of Common Pleas No. 5 of Philadelphia County, March T., 1960, No. 1411, in case of Dr. Joseph Goldfine v. Esther Goldfine. Order reversed.

COUNSEL

Alexander Osinoff, with him John W. Kormes, for appellant.

Joseph Skale, for appellee.

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

Author: Montgomery

[ 201 Pa. Super. Page 463]

OPINION BY MONTGOMERY, J.

This is an appeal by plaintiff-husband from an order dismissing his complaint for a divorce a.v.m. The testimony was heard and passed on by a master who recommended the divorce on the grounds of indignities. Exceptions filed by the defendant-wife (appellee) were sustained and the divorce was refused by the court. The action by the lower court was based solely on the proposition that the facts as contended by the husband did not constitute a course of conduct as to meet the requirements of the rule concerning divorce on the grounds of indignities. Judge REIMEL did not undertake to pass on the credibility of witnesses or find facts. Consequently we may find guidance only from the master's report in the determination of the facts of this case. In resolving such appeals we must review the record and arrive at an independent conclusion as to where the truth lies and whether a legal cause for divorce exists. Benscoter v. Benscoter, 200 Pa. Superior Ct. 251, 188 A.2d 859. Where the testimony of the parties is conflicting however, the master's appraisal, especially where his report presents a searching analysis and has been approved by the court below, is to be given the fullest consideration as regards the credibility of witnesses whom he has seen and heard.

[ 201 Pa. Super. Page 464]

Many hearings followed and about 450 pages of printed testimony were taken. Following these hearings the master confirmed the facts already found and found additional facts establishing that the wife on many occasions was guilty of conduct intended to disturb, harass, embarrass, berate, and offend her husband. Such actions clearly were sufficient to meet the requirements of the definition of indignities in the law of divorce, viz., vulgarity, unmerited reproach, habitual contumely, studied neglect, intentional incivility, manifest disdain, abusive language, malignant ridicule, and other manifestations of settled hate and estrangement. Baio v. Baio, 196 Pa. Superior Ct. 202, 173 A.2d 800; Trueg v. Trueg, 190 Pa. Superior Ct. 78, 151 A.2d 786.

We are also in agreement with the master that the evidence demonstrated that this was a course of conduct on the wife's part and not merely isolated incidents. It started shortly after the marriage and continued until 1960. The record gives no indication that the wife's conduct was occasional or sporadic. The evidence of the witnesses accepted as credible is to the contrary. We are satisfied that the rule requiring a continuity of such conduct in such cases has been met and satisfied.

Disposition

Order reversed and decree entered awarding a divorce a.v.m. to appellant-plaintiff, Joseph Goldfine, from the appellee-defendant, Esther Goldfine, on the grounds of indignities to the person.

WRIGHT and FLOOD, JJ., would affirm on the opinion of Judge REIMEL for the court below.

19630912

© 1998 VersusLaw Inc.



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