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SELLS v. SELLS (06/21/74)

decided: June 21, 1974.

SELLS, APPELLANT,
v.
SELLS



Appeal from order of Court of Common Pleas of Dauphin County, June T., 1970, No. 918, in case of Robert M. Sells v. Elizabeth Ann Sells.

COUNSEL

Bonnie D. Menaker, with her Hepford, Zimmerman & Swartz, for appellant.

Michael Sedor, for appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Cercone, J. Hoffman, J., did not participate in the consideration or decision of this case.

Author: Cercone

[ 228 Pa. Super. Page 332]

Husband, Robert M. Sells, appeals from an order of the Court of Common Pleas of Dauphin County, which overruled the findings of a Master and dismissed husband's complaint in divorce. Husband brought the action pursuant to Section 10 of the Divorce Law of 1929*fn1 claiming that the divorce should be granted on grounds of indignities to his person by his wife rendering his condition intolerable and life burdensome.*fn2 It is the duty of this court, on appeal, to make an independent study of the evidence and determine whether a legal cause of action for divorce exists. Gray v. Gray, 220 Pa. Superior Ct. 143, 286 A.2d 684 (1971); Eifert v. Eifert, 219 Pa. Superior Ct. 373, 281 A.2d 657 (1971). While the Master's findings of fact and recommendations

[ 228 Pa. Super. Page 333]

    that a divorce be granted are only advisory where the issue is one of credibility and the Master is the one who heard and observed the witness, his findings should be given the fullest consideration. Green v. Green, 182 Pa. Superior Ct. 287, 126 A.2d 477 (1956).

The husband and wife were married on June 14, 1952. The marriage was the second for both parties with the husband having a child by his previous marriage. Twelve years after their marriage the husband instituted an action in divorce. This 1964 action was discontinued, however, in September of 1965. Then, in 1966, the wife instituted an action for divorce a mensa et thoro and such a decree was granted. Subsequently in November of 1966 the parties reconciled and the decree a mensa et thoro was vacated. In 1970 the husband [appellant] commenced this action in Dauphin County. The wife contested the action.

Husband raises three questions for our determination on appeal:

1. Did the trial court abuse its discretion in overruling the report of the Master and dismissing husband's complaint in divorce?

2. Was the wife guilty of such indignities to the person of the husband as to render his condition ...


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