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SUMNER R. BARTON v. BETTY M. BARTON (06/29/77)

decided: June 29, 1977.

SUMNER R. BARTON, APPELLANT,
v.
BETTY M. BARTON



Appeal from the Order of the Court of Common Pleas, Civil Action, Law, of Dauphin County at No. 836 September Term, 1974.

COUNSEL

Craig W. Bremer, Harrisburg, with him Thomas A. Beckley, Harrisburg, for appellant.

Charles J. DeHart, III, Harrisburg, with him Caldwell, Clouser & Kearns, Harrisburg, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Price, J., dissents.

Author: Hoffman

[ 248 Pa. Super. Page 279]

Appellant, plaintiff in a divorce action in the court below, contends that the lower court erred when it granted appellee's exceptions to the master's recommendation that a divorce a. v. m.*fn1 be entered in appellant's favor. We agree, and, therefore, reverse the order of the lower court.

On October 17, 1974, appellant-husband filed a complaint in divorce in the Court of Common Pleas of Dauphin County. After the parties completed discovery, the lower court appointed a master to take testimony in the contested action. On February 21, 1975, the master conducted a hearing at which only appellant and appellee testified. The master's report, filed on May 19, 1975, recommended that the court grant the divorce. On December 2, 1975, the court en banc sustained appellee's exceptions to the report and dismissed the complaint. This appeal followed.

Appellant contends that the lower court erred when it substituted its own findings of facts for those made by the master. He further contends that if the court had accepted

[ 248 Pa. Super. Page 280]

    the master's findings, the evidence would have been sufficient to prove indignities to the person. Divorce Law, supra; 23 P.S. ยง 10.

The master's report made the following findings which are adequately supported by the record. The parties were married in Chicopee Falls, Massachusetts, on July 18, 1952. This was appellant's third marriage; the previous marriages terminated in divorce. It was appellee's first marriage. The couple has three children, two of whom were minors residing with appellee at the time of the hearing. The family moved to Mechanicsburg, Cumberland County, in 1969, where they lived until the couple separated in 1973.

The master found that grounds for divorce existed based on ...


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