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YOHEY v. YOHEY (04/15/65)

decided: April 15, 1965.

YOHEY
v.
YOHEY, APPELLANT



Appeal from decree of Court of Common Pleas of Delaware County, Dec. T., 1962, No. 457, in case of Rollin E. Yohey v. Helen Gertrude Yohey, also known as Helen McHenry Yohey.

COUNSEL

I. B. Sinclair, for appellant.

Anthony R. Semeraro, for appellee.

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

Author: Jacobs

[ 205 Pa. Super. Page 330]

This is an action in divorce which was begun by the husband, Rollin E. Yohey. After two hearings the master recommended a divorce on the grounds of indignities to the person and desertion, the two grounds

[ 205 Pa. Super. Page 331]

    alleged in the complaint. The wife, Helen Gertrude Yohey, filed exceptions to the master's report which were dismissed by the court and a decree of divorce a.v.m. entered. The wife has appealed to this court.

In the court below and here the wife-defendant claims that the Court of Common Pleas of Delaware County did not have jurisdiction to hear the case and that the grounds for divorce were not made out.

The objection of the wife-defendant to jurisdiction is not to jurisdiction of the person nor to jurisdiction of the subject matter arising from a one year's residence in Pennsylvania but rather to the venue of the Delaware County Courts on the basis that it was not shown that the plaintiff resided in Delaware County at the time he filed his complaint. We have carefully examined the testimony and agree with the court below that the record clearly shows that the plaintiff came to live in Delaware County in June, 1957, long before the complaint was filed in 1962, and that he had continued to live in Delaware County to the time of the master's hearings. So far as the testimony shows, the plaintiff is still residing in Delaware County. In addition, the defendant has waived the right to object to venue. While the one year domiciliary requirement that a plaintiff reside in Pennsylvania for a period of one year immediately prior to filing his complaint in divorce cannot be waived, the venue of a county to hear the case is waived by the entry of a general appearance, by requesting a bill of particulars and by petitioning for counsel fees and alimony pendente lite, all of which were done by the defendant in this case. Chasman v. Chasman, 161 Pa. Superior Ct. 77; Blair v. Blair, 195 Pa. Superior Ct. 406.

In determining whether or not the plaintiff has shown grounds for divorce when the case has been heard by a master it is our duty to review the testimony and make our own finding. Nacrelli v. Nacrelli, 288 Pa. 1; Boyer v. Boyer, 183 Pa. Superior Ct. 260.

[ 205 Pa. Super. Page 332]

The parties in this case were married on November 21, 1940. They apparently got along fairly well together for a short time and then the treatment of which the plaintiff complains began. The gist of his complaint is that his wife constantly called him vile and opprobrius names and falsely accused him of having sexual relations with other women. This conduct on her part continued all of their life together. Many of the name calling episodes and false accusations took place in the presence of other people, the plaintiff claims. He also accuses his wife of other acts, such as her refusal to give him a key to the apartment in which they lived, locking him out of their house at night and keeping him out for hours and then when she finally admitted him into the house yelling at him so loudly as to disturb the neighbors. Some of the name calling he alleges occurred in a beer garden where many people were present, and in front of a hotel in Berwick, Pennsylvania, where many people were present. He also claimed that she didn't talk to him for an entire year and that he was locked out of his house at least ten times. The plaintiff was corroborated in part of his testimony by a neighbor who had known the parties from 1946 to 1952. The corroboration covered the constant name ...


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