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TARBUCK v. TARBUCK (12/16/64)

decided: December 16, 1964.

TARBUCK, APPELLANT,
v.
TARBUCK, APPELLANT



Appeals from orders of Court of Common Pleas of Washington County, Feb. T., 1963, No. 85, in case of Michael Tarbuck, Jr. v. Nellie M. Tarbuck.

COUNSEL

Sanford S. Finder, for husband plaintiff.

Stephen I. Richman, with him Greenlee, Richman, Derrico & Posa, for wife defendant.

Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (Rhodes, P. J., absent). Opinion by Montgomery, J.

Author: Montgomery

[ 204 Pa. Super. Page 571]

This is an appeal by wife-defendant from a decree awarding the husband an absolute divorce on the grounds of indignities. The appellant questions the sufficiency of the evidence to sustain the grounds on which the divorce was granted and contends particularly that the only evidence of indignities consists of events occurring subsequent to the filing of the complaint, except the uncorroborated testimony of the husband, which the appellant alleges was denied and shaken and was, therefore, insufficient.

On appeal we are obliged to review the record and make an independent determination of whether the evidence warrants a decree. The master's report, although advisory only, is to be given the fullest consideration in regard to the credibility of witnesses, whom he has seen and heard. Liscio v. Liscio, 203 Pa. Superior Ct. 83, 198 A.2d 645 (1964). The master in this case determined that the husband and his witnesses were credible and that the evidence was sufficient to sustain the decree which he recommended. The lower court agreed with the master's finding on credibility and entered the decree. This appeal followed.

Our review of the record indicates that the evidence is sufficient to show conduct by defendant which amounts to indignities under the law of this Commonwealth. In making this determination we have taken into account the fact that the parties continued to live in the same house after the alleged indignities occurred. However, it is not a prerequisite for one who had been sued for divorce on the grounds of indignities that he withdraw from the common abode. Liscio v. Liscio, supra; Horton v. Horton, 170 Pa. Superior Ct. 209, 85 A.2d 602 (1952).

Considering the evidence of the husband and his witnesses to be credible, we find the following facts: The parties were married August 21, 1954, at which

[ 204 Pa. Super. Page 572]

    time the husband was 20 and the wife, 23 years of age. Two years after their marriage they built a new home in suburban Washington, Pennsylvania, where they continued to live until their separation in July of 1963. There was one child of the marriage, a son, born April 25, 1958. The relationship of the parties was normal for approximately seven years or until Christmas of 1961, when it became strained. From that time until the complaint in divorce was filed on February 13, 1963, the husband describes the events as follows:

"My wife claimed she was always looking for something, trying to find something on me. So, I came home from work one day and my wife told me she found something in the truck and I asked her what it was. She said she had found a pack of contraceptives, which she claimed belonged to me. I had two different guys driving truck for me at the time. So, from then on there was trouble every day. Every day I would come home from work there were accusations and so on and so forth. I kept always denying it and telling her it wasn't nothing that belonged to me. So, from then on she started to not wanting to wash my clothes, wouldn't cook any meals, didn't want to clean. It was day in and day out that way."

Appellee testified to numerous incidents and examples of appellant's alleged behavior that, although uncorroborated because they took place in the privacy of their home, if believed, could be taken into consideration as constituting indignities. We shall not attempt to exhaust this subject; however, he testified that as early as Christmas of 1961 his wife accused him of infidelity, hit him with a shoe, threw an aluminum Christmas tree at him and scratched his face; that his wife was always breaking things and threw stools and chairs at him; that ...


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