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MORRIS DANIEL MINTZ v. JO ANN WALTON MINTZ (10/20/78)

decided: October 20, 1978.

MORRIS DANIEL MINTZ, APPELLANT,
v.
JO ANN WALTON MINTZ, APPELLEE



No. 495 March Term, 1977, Appeal from Order of October 14, 1977, Court of Common Pleas, Dauphin County, Civil Action--Law, No. 1643 September Term, 1971.

COUNSEL

Gary M. Lightman, Harrisburg, for appellant.

Philip D. Freedman, Harrisburg, for appellee.

Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Spaeth, J., concurs in the result. Van der Voort, J., dissents. Hoffman, J., did not participate in the consideration or decision of this case.

Author: Cercone

[ 258 Pa. Super. Page 189]

This case comes as an appeal from the decision of the lower court disapproving the recommendation of divorce submitted by the master. For the reasons set forth below,

[ 258 Pa. Super. Page 190]

    we reverse the lower court and order that the master's recommendation be followed.

The parties were married on November 24, 1955. After sixteen years of marriage, appellant and appellee separated on December 27, 1971. On January 6, 1974, Morris Mintz, appellant, filed an action in divorce in the County of Dauphin against his wife, Jo Ann Mintz, appellee. On August 7, 1974 and October 7, 1974 the Master conducted hearings to consider testimony in support of the action in divorce. The hearings resolved into a credibility contest with appellant accusing appellee of misconduct entitling him to a divorce and appellee substantially denying the accusations. The master credited appellant's testimony stating in his report that he was impressed with appellant's forthrightness and restraint in giving his testimony without attempting to exaggerate beyond believability. The master found that appellant's testimony on cross examination was consistent with his testimony on direct, and concluded that appellant's credibility was established sufficiently to carry his complaint in divorce.

The lower court discounted the recommendation of the master because the master was extremely late in filing his report.*fn1 The lower court chose to draw its own conclusions regarding credibility, finding in favor of appellee. The sum of the court's analysis on this point consisted of the following:

"A careful and thorough review of the testimony convinces us that the plaintiff has not met his burden of proof. Almost all of the allegations set forth by plaintiff were denied by his wife. The facts that were corroborated were of little significance and the source was less than impartial."

We are not persuaded by the lower court's rationale.

In general, a trial court examining the factual findings of a master or an ...


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