Joseph Hakun, Philadelphia, for appellant.
Jack Brian, Upper Darby, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., concurs in the result. Watkins, former President Judge, did not participate in the consideration or decision of this case.
[ 253 Pa. Super. Page 288]
Appellant-wife appealed from the decree of the Court of Common Pleas of Philadelphia County which granted a divorce a. v. m. from appellee-husband. The complaint in divorce alleged the grounds of desertion and indignities to
[ 253 Pa. Super. Page 289]
the person. The master recommended a divorce on those grounds, and the court below granted the divorce. This appeal by the wife followed. We reverse.
The parties, Frank and Rosemary Melli, were married in 1955. They lived together for four years and there were two children born of the marriage -- a girl in 1957 and a boy in 1959. During the period between 1960 through 1962, Mrs. Melli suffered from a serious kidney ailment, nephrosis. Her illness and its serious and painful complications caused her to be hospitalized three different times during the two-year period, each stay extending several months. After being discharged from the hospital, Mrs. Melli returned to her parents' home to recuperate. She was incapable of performing her duties as a wife, mother, and homemaker and, thus, her mother performed these services.
Mr. Melli and the children also moved into the home of Mrs. Melli's parents in order to keep the family together, but in January, 1961, the husband left that home and moved in with his mother. Mr. Melli testified that he had asked Mrs. Melli to accompany him to their separate home in which they had previously resided, and offered to provide a housekeeper for her since she was physically and emotionally unable to perform any household services. However, the husband never retained the housekeeper and, in fact, he testified he was not financially able to do so. And so, the parties continued to live apart.
The husband did not file his complaint in divorce until 1968. After filing the bill of particulars, the action was dormant until 1974 when it was dismissed with prejudice. After being reinstated, the case proceeded in 1975.
Three hearings were held before a master. In his conclusions of law, the master found that the wife's actions constituted a constructive desertion and indignities to the person. It is now the duty of the appellate court to make a complete and independent investigation of the evidence in order to determine whether a legal cause for divorce exists. Cammann v. Cammann, 217 Pa. Super. 376, 274 A.2d 549
[ 253 Pa. Super. Page 290]
(1970). Our review extends to the credibility of the witnesses and the weight of the evidence. Gehris v. Gehris, 233 Pa. Super. 144, 334 A.2d 753 (1975). In this case, the burden was on the husband to prove by clear and convincing evidence that a divorce should be granted. McElroy v. McElroy, 185 Pa. Super. 78, 138 A.2d 299 (1958). Having given the master's report and the lower court opinion full consideration, Cammann v. Cammann, 217 Pa. Super. at 280, 274 A.2d 549, we nevertheless conclude that the appellee-husband has ...