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SMITH v. SMITH (09/16/65)

decided: September 16, 1965.

SMITH
v.
SMITH, APPELLANT



Appeal from order and decree of Court of Common Pleas of Allegheny County, July T., 1961, No. 1858, in case of Gustave S. Smith v. Helen Smith.

COUNSEL

Melvin Schwartz, with him Alexander Cooper, and Cooper, Goodman & Schwartz, for appellant.

Harry H. Rosen, for appellee.

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

Author: Jacobs

[ 206 Pa. Super. Page 311]

This is an appeal by a wife from the action of the court below in granting her husband a divorce.*fn1

[ 206 Pa. Super. Page 312]

The parties were married in 1956. On May 11, 1961, the husband filed his complaint alleging indignities to the person. The wife contested the case from the beginning and has been represented by several different attorneys. On November 15, 1961, Morris Zimmerman, Esq. was appointed master. Hearings were held before the master on January 3, 4, 5, 8, 9, 10 and 11, 1962, and voluminous testimony was taken. Prior to the transcription of the testimony Mr. Zimmerman died without having filed any report. On April 5, 1962, the court appointed a successor master and directed him to review the testimony already taken and make his report. This order was amended on May 21, 1962, directing that the master review the testimony already taken and take such further testimony as he deemed necessary. Another order was entered by the court on December 5, 1962, amending the prior orders to provide that the parties might recall any witnesses for additional examination or cross-examination and might present any further evidence they desired before the master. Although counsel for both parties consented to the order of December 5th, counsel for the wife asked that the master be directed to hear the case de novo. This petition was heard before the court en banc which again, on March 4, 1963, referred the case to the successor master and directed that he review the testimony already taken and take such additional testimony as he deemed necessary. A request was then made that the orders of the court in regard to the master's duties be clarified. The court directed that the case proceed under the order of March 4, 1963. The successor master proceeded on the basis of the last mentioned order and filed his report on November 22, 1963, in which he recommended that the husband be granted a divorce a.v.m.

The wife-appellant argues that the successor master should have been directed by the court below to hear

[ 206 Pa. Super. Page 313]

    the testimony de novo. This she claims is required by Pa. R. C. P. No. 1133, which provides, inter alia, that after an action is at issue "the court shall hear the testimony, or . . . may . . . appoint a master to hear the testimony and return the record and a transcript of the testimony to the court, together with his report and recommendation."

A consideration of the respective duties of the courts and the master in a divorce case in Pennsylvania convinces us that this rule does not compel a complete retaking of the testimony by this successor master. A master's report, called advisory in some cases, is not controlling either in the lower court or on appeal. Both the trial court and the appellate court must fully examine the testimony and decide upon the merits of the case independent of the master's report. Nacrelli v. Nacrelli, 288 Pa. 1, 136 A. 228 (1927); Langeland v. Langeland, 108 Pa. Superior Ct. 375, 164 A. 816 (1933). The weight to be given the master's report was aptly summarized in the Langeland case as follows:

"The question in a divorce case is not whether there was evidence to support the findings of the master; it is the duty of the court to make its own independent and careful investigation of the evidence to ascertain whether it does in truth establish a legal cause for divorce. No matter what drudgery may be involved, this judicial function cannot be relinquished or evaded by the appointment of even the most competent master. True, the master's report is entitled to the fullest consideration because of his personal contact with ...


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