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ZIMMERMAN v. ZIMMERMAN (01/03/68)

decided: January 3, 1968.

ZIMMERMAN
v.
ZIMMERMAN, APPELLANT



Appeal from order of Superior Court, Oct. T., 1966, No. 14, affirming decree of Court of Common Pleas of Cumberland County, Sept. T., 1964, No. 191, in case of Eugene W. Zimmerman v. Eleanor Zimmerman.

COUNSEL

Donald M. Swope, with him Robert L. Myers, III, and Brown, Swope & MacPhail, and Myers, Myers & Flower, for appellant.

Huette F. Dowling, with him John H. Bream, and Dowling and Dowling, for appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones. Mr. Justice Roberts concurs in the result. Dissenting Opinion by Mr. Justice Musmanno.

Author: Jones

[ 428 Pa. Page 119]

Eugene W. Zimmerman and Eleanor Zimmerman were married April 8, 1930. The parties lived together until April 13, 1959 at which time Eleanor Zimmerman departed from the matrimonial domicile in Cumberland County and removed to a hotel in Harrisburg and later to Adams County. From April 13, 1959 to the present time, the parties have lived separate and apart.

On October 19, 1959 -- over six months after leaving the matrimonial domicile -- Mrs. Zimmerman in Adams County instituted an action seeking a divorce

[ 428 Pa. Page 120]

    from bed and board and, in this action, she alleged adultery and indignities as grounds for such divorce. The Court of Common Pleas of Adams County held that she had not established either ground for divorce and, on appeal, the Superior Court, on April 12, 1962, affirmed the action of the Adams County court refusing to grant a divorce. See: Zimmerman v. Zimmerman, 198 Pa. Superior Ct. 26, 180 A.2d 97 (1962). One week thereafter, Mr. Zimmerman instituted an action in Cumberland County against Mrs. Zimmerman seeking a divorce a.v.m. on the grounds of desertion and indignities. The Cumberland County court refused to grant a divorce on the grounds alleged and, on appeal, the Superior Court affirmed the action of the Cumberland County court. See: Zimmerman v. Zimmerman, 202 Pa. Superior Ct. 176, 195 A.2d 799 (1963). The basis for the court's refusal to grant a divorce on the ground of desertion was that the period of time during which Mrs. Zimmerman's Adams County divorce action was pending could not be included in the two year statutory period necessary to establish a legal desertion.

On May 23, 1964, Mr. Zimmerman instituted the instant action in the Court of Common Pleas of Cumberland County seeking a divorce a.v.m. alleging that Eleanor Zimmerman had committed wilful and malicious desertion and had been absent from the matrimonial domicile without reasonable cause since April 13, 1959. It should be noted that this action was instituted approximately two years and two months subsequent to the date of affirmance by the Superior Court of the final decree of the Adams County court in the action previously instituted by Mrs. Zimmerman.

In the present action, after the taking of voluminous testimony, the master recommended that a divorce a.v.m. be granted and the Court of Common Pleas of Cumberland County adopted the recommendation of

[ 428 Pa. Page 121]

    the master and entered a decree granting a divorce a.v.m.*fn1 On appeal, the Superior Court handed down a per curiam opinion wherein it recited that, since the six judges who heard the argument of the appeal were equally divided in opinion, the decree of the court below was affirmed. This Court granted allocatur.

The basic question raised on this appeal is whether, prior to the expiration of the two year statutory period, Mrs. Zimmerman had made a bona fide offer of reconciliation and to return to the matrimonial home to her husband which the latter rejected. In resolving this question, we bear in mind the scope of our review: (1) even though the master before whom the testimony was taken, because of the opportunity afforded him to hear and to observe the witnesses, was in a better position than this Court to pass upon the credibility of such witnesses, the findings of the master, although entitled to due consideration, are not controlling or binding upon us: (Nacrelli v. Nacrelli, 288 Pa. 1, 6, 7, 136 A. 228 (1927); Smith v. Smith, 157 Pa. Superior Ct. 582, 583, 584, 585, 43 A.2d 371 (1945); Langeland v. Langeland, 108 Pa. Superior Ct. 375, 379, 380, 164 A. 816 (1933); Law of Marriage and Divorce in Pennsylvania, Freedman, (2d ed.) vol. 3, ยง 654 and cases therein cited); (2) except where a jury has rendered the verdict, this Court in a divorce action must review all the evidence and from such review determine whether the ground alleged as a cause for divorce has been legally established (Bobst v. Bobst, 357 Pa. 441, 444, 54 A.2d 898 (1947); Esenwein v. Esenwein, 312 Pa. 77, 80, 81, 167 A. 350 (1933)).

Our initial inquiry is when, under the instant factual situation, the two year statutory period necessary to establish desertion as a ground for divorce began

[ 428 Pa. Page 122]

    to run. The Superior Court in Zimmerman v. Zimmerman, 202 Pa. Superior Ct. 176, supra, said: "It has long been the law that in computing the statutory period necessary to support a divorce for desertion, the time of the voluntary separation of the defendant during the pendency of a previous divorce suit brought in good faith by the defendant, cannot be included by the plaintiff in the two-year statutory period: [citing authorities]". (Emphasis added). With that statement of the law we are in accord. Moreover, in that case, the Superior Court concluded that the divorce action brought by Mrs. Zimmerman in Adams County had been "brought in good faith" insofar as the allegation concerning indignities was concerned and that, even though she had failed to legally establish the existence of such indignities and thus was not entitled to a divorce on that ground, nevertheless she was entitled to the benefit of the rule of law which tolls the two year statutory period during the pendency of the divorce action. We agree with that conclusion.

In the instant divorce action, the Court of Common Pleas of Cumberland County stated: "The statutory period for desertion of two (2) years began to run from April 13, 1959. Excluding the period involved in the pendency of the Adams County divorce action, to wit: October 19, 1959 to April 12, 1962, the two-year statutory period expired October 7, 1963, at the latest. If the six (6) months prior to the filing of her divorce action is not counted as part of the period, the desertion period would begin April 12, 1962 when the Superior Court handed down the order affirming the dismissal of her complaint in divorce in Adams County. This date was one week more ...


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