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ARCURE v. ARCURE (09/21/71)

decided: September 21, 1971.

ARCURE
v.
ARCURE, APPELLANT



Appeal from decree of Court of Common Pleas, Trial Division, of Philadelphia, June T., 1968, No. 268, in case of Salvatore Arcure v. Angelina Arcure.

COUNSEL

David H. Kubert, with him Vito N. Pisciotta, for appellant.

David Weinstein, with him Weinstein & Bobrin, for appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Cercone, J.

Author: Cercone

[ 219 Pa. Super. Page 416]

This is an appeal by the wife-defendant from the lower court's order granting husband-plaintiff a final decree of divorce on the ground of indignities, contrary to the Master's recommendation that the Complaint in divorce be dismissed.

The lower court said: "We have read the testimony and report of the Master. We have given that report great consideration, especially since the credibility of the witnesses is an important issue. But a review of the testimony will not support the recommendation of the Master. We must therefore reject his recommendation and, on the evidence, grant the prayer of the Complaint." The lower court was duty bound, as is this court, to make its own independent examination. The Master's recommendations and conclusions cannot control the lower court's nor this court's appraisal of the weight and credibility of the testimony: Sacavitch v. Sacavitch, 206 Pa. Superior Ct. 229, 231 (1965); Blatt v. Blatt, 206 Pa. Superior Ct. 177 (1965). As stated in Pasternak v. Pasternak, 204 Pa. Superior Ct. 339 (1964):

"It is true that the report of the master is entitled to great consideration in that he has heard and seen the witnesses and we have so held on numerous occasions, Fiorilli v. Fiorilli, 202 Pa. Superior Ct. 529, 198 A.2d 369 (1964); and that it should not be lightly disregarded, but however, it is advisory only and the reviewing court is not bound by it and it does not come to the court with any preponderate weight or authority which must be overcome. The reviewing court must consider the evidence de novo, its weight and the credibility of the witnesses. The Master's report is not controlling. either on the lower court or upon the appellate

[ 219 Pa. Super. Page 417]

Court. Rankin v. Rankin, 181 Pa. Superior Ct. 414, 124 A.2d 639 (1956).

"We must, therefore, examine this record de novo, consider carefully the master's report and at the same time give great weight to the opinion of the court below wherein this evidence was already considered de novo and the credibility of the witnesses carefully examined in view of the master's report."

Our independent review and study of the entire record in this case leads to the conclusion reached by the court below, that plaintiff's testimony did establish a course of conduct on the part of the defendant making his life burdensome and condition intolerable, and constituting indignities to the person of the plaintiff. Without detailing all the evidence, it is sufficient to note that plaintiff's testimony, as summarized in part by the court below, "indicated that the defendant did not cook her husband's meals regularly nor clean the marital home. When pressed, she would become argumentative and abusive. He further testified that the defendant would use vile language towards him, threaten him physically with a knife, and finally forced him to leave the marital home."

Plaintiff's evidence clearly established a course of conduct on the part of defendant which manifested settled hate and estrangement and constituted indignities under the divorce law. As stated in Margolis v. Margolis, 201 Pa. Superior Ct. 129, 133 (1963): "Indignities may consist of vulgarity, unmerited reproach, habitual contumely, studied neglect, intentional incivility, manifest disdain, ...


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