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CAMMANN v. CAMMANN (11/13/70)

decided: November 13, 1970.

CAMMANN, APPELLANT,
v.
CAMMANN



Appeal from decree of Court of Common Pleas of Montgomery County, April T., 1960, No. 7, in case of Schuyler Van Rensselaer Cammann v. Marcia deForest Post Cammann.

COUNSEL

Reeder R. Fox, with him Duane, Morris & Heckscher, for appellant.

James E. Riely, with him Knox Henderson, and Stassen and Kephart, and Henderson, Wetherill, O'Hey & Horsey, for appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Hoffman. Wright, P. J., would affirm on the opinion of Judge Vogel.

Author: Hoffman

[ 217 Pa. Super. Page 378]

Appellant-husband appealed from the decree of the Court of Common Pleas of Montgomery County which refused to grant a divorce a.v.m. from appellee-wife. The complaint in divorce alleged the grounds of desertion and indignities to the person. The master recommended that a divorce be granted on the ground of desertion but not on the ground of indignities. Despite this recommendation, the court below dismissed the complaint. This appeal by the husband followed.

As is our duty in divorce cases, we have made ". . . an independent investigation of the evidence in order to determine whether in truth it does establish a legal cause for divorce . . ." Nichols v. Nichols, 207 Pa. Superior Ct. 220, 222, 217 A.2d 807, 809 (1966) (Wright, J. [Now P. J.]). "[W]e have carefully reviewed the evidence de novo, passed on its weight and on the credibility of the witnesses, and reached an independent conclusion upon the merits." Sacavitch v. Sacavitch, 206 Pa. Superior Ct. 229, 230, 212 A.2d 926, 927 (1965).

The parties were married in 1943 and lived a fairly harmonious married life for ten years. From 1953, until the parties ceased living together in 1956, the marital relationship deteriorated to the point where communication between them was conducted by written notes or by use of their children as messengers. In June of 1956 the husband entered a hospital for surgery. During his confinement for a period of almost two weeks, he did not receive one call, letter or visit or any type of communication from his wife. When he was released, he did not return to the family home, but rather, at his doctor's suggestion, went to his parents' house in New York to recuperate from the operation.

For the balance of the summer of 1956 and into September of that year, the husband remained at his parents'

[ 217 Pa. Super. Page 379]

    house. During this period he sent three letters to his wife on routine matters. His wife, however, did not communicate in any way with her husband.

Near the end of the summer of 1956, the husband wrote to his wife stating that he would be returning to the family home. On the very day that the wife received this letter, the husband's mother, at his request, called to tell his wife when he would be returning home. The wife replied "Oh, no, he is not coming back." She further stated that if the husband returned she would take the children and live elsewhere.

Subsequently, the husband returned to Philadelphia and took up residence apart from his wife. Neither party has made a bona fide attempt to reconcile their differences. The wife has stated that her husband would need her permission to return, and that she has never given that ...


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