No. 1248 October Term, 1977, Appeal from the Order dated February 28, 1977, of the Court of Common Pleas, Civil Action - Law, for the County of Montgomery at No. 75-13425.
Morris Gerber, Norristown, with him Marc D. Jones, Norristown, for appellant.
Lawrence F. Flick, Norristown, for appellee.
Watkins, P. J., and Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Spaeth, J., files a concurring opinion.
[ 252 Pa. Super. Page 296]
Beverly Kouri Rensch brings this appeal from a divorce decree entered by the Common Pleas Court of Montgomery County. Appellant alleges that the lower court erred in dismissing her exceptions to the Master's report and in adopting the Master's recommendation to grant the divorce. Appellant cites three bases upon which she believes the lower court's decision should be reversed: (1) neither the Master nor the lower court found as a fact that appellee was an innocent and injured spouse; (2) the evidence presented is insufficient to sustain any finding that appellee was an innocent and injured spouse; (3) the evidence is insufficient to support a divorce decree on the grounds of indignities. For the reasons stated below, we affirm.
[ 252 Pa. Super. Page 297]
The parties were married on November 8, 1974, in Montreal, Canada, and took up residence in Pennsylvania immediately. Difficulties between the parties began within weeks of the wedding and continued until appellant left the marital home on July 25, 1975. She has not returned. On August 26, 1975, appellee filed a complaint in divorce against appellant alleging indignities. One child, Joshua Raymond Rensch, was born of this marriage.
Following three hearings, the Master in this case filed a report recommending that a divorce be granted. Appellant's exceptions were denied and the lower court granted a divorce to appellee on February 28, 1977.
It is the responsibility of this Court to make a de novo evaluation of the record in divorce proceedings and to decide independently of the master and lower court whether a legal cause of action in divorce exists. Nacrelli v. Nacrelli, 288 Pa. 1, 136 A. 228 (1927); Coxe v. Coxe, 246 Pa. Super. 231, 369 A.2d 1297 (1976); Steinke v. Steinke, 238 Pa. Super. 74, 357 A.2d 674 (1975). With the exception of issues of credibility to which the Master's findings should be given the fullest consideration, the Master's recommendation is advisory only. Schrock v. Schrock, 241 Pa. Super. 53, 359 A.2d 435 (1976); Gehris v. Gehris, 233 Pa. Super. 144, 334 A.2d 753 (1975). Because of our power to make a de novo review of the record and an independent determination of whether a divorce should be granted ". . . even . . . formal inadequacies in the master's report . . . would not be [a] ground for reversal." Smith v. Smith, 206 Pa. Super. 310, 316-317, 213 A.2d 94, 97 (1965).
This Court has the power to reverse the lower court's or the master's finding concerning whether a spouse is innocent and injured. See, e. g., Eifert v. Eifert, 219 Pa. Super. 373, 281 A.2d 657 (1971). We also have the power to make that determination initially. While it is true that here neither the master's report and recommendation nor the lower court's opinion explicitly found appellee to be the innocent and injured spouse, such a finding is implicit in the entry of the divorce decree on the basis of indignities. Upon
[ 252 Pa. Super. Page 298]
a review of the record, we find sufficient evidence to explicitly hold that appellee is ...