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JANET IRENE LEUCCI v. GINO LEUCCI (12/14/78)

decided: December 14, 1978.

JANET IRENE LEUCCI, APPELLANT,
v.
GINO LEUCCI



No. 640 October Term, 1978, Appeal from Order of the Court of Common Pleas, Family Division, Philadelphia County, March Term, 1976 Number 1046, Dismissing Appellant's Complaint in Divorce A.V.M.

COUNSEL

C. Dean Francis, Philadelphia, for appellant.

Richard S. Mailman, Jenkintown, for appellee.

Price, Hester and Hoffman, JJ.

Author: Hoffman

[ 261 Pa. Super. Page 104]

Appellant contends that the lower court erred in sustaining appellee's exceptions to the master's report and in dismissing her complaint in divorce a. v. m.*fn1 Because we agree, we reverse the lower court's order and direct the entry of a decree of divorce a. v. m.*fn2

On September 9, 1959, appellant-wife and appellee-husband were married in Philadelphia, Pennsylvania. They have two daughters, aged 12 and 16 years at the time of the hearing. On March 5, 1976, appellant filed a complaint in divorce a. v. m. on the ground of indignities to the person. The lower court appointed a master who conducted hearings on November 10 and December 14, 1976. After hearing the testimony of the two parties, who were the only witnesses, the master made the following findings of fact. Almost from the beginning of the marriage, appellee isolated appellant from her personal friends and relatives, claiming that he wished to have only native Italians as friends. Throughout the marriage, appellee accused appellant, without cause, of looking at and dating other men. Without cause, appellee accused her of having an affair with her priest and her obstetrician and questioned the paternity of his younger daughter. Appellant admittedly had a single brief affair with another man in 1961. Eight years later, in 1969, she suffered a nervous breakdown and admitted the affair to her husband. Throughout the period from 1969, when appellant

[ 261 Pa. Super. Page 105]

    admitted the old affair, to July 1975, when she left the marital home, appellee argued with her about the affair at least once a week, calling her tramp and refusing to communicate with her at all for days at a time. After appellant confessed her brief affair, appellee removed his wedding ring and refused to wear it thereafter. The master found that appellant's testimony was credible and was not "shaken" by appellee's testimony; on the contrary, the master found that appellee's testimony either corroborated or did not contradict most of appellant's testimony.

The master concluded that appellant had proved a case of indignities to the person and, therefore, recommended that the court grant a divorce. On December 16, 1977, the lower court sustained appellee's exceptions and dismissed the complaint. This appeal followed.

Appellant first contends that the lower court erred when it found that she did not prove indignities by clear and convincing evidence.

In McCaskey v. McCaskey, 253 Pa. Super. 360, 364-365, 385 A.2d 378, 380 (1978), we outlined the well-settled guidelines for our review of non-jury divorce cases:

"'The law is clear that when a divorce matter is heard by a judge sitting without a jury, this Court must make a complete and independent review of the record of the proceedings below. Eifert v. Eifert, 219 Pa. Super. 373, 281 A.2d 657 (1971). The Court's review extends even to matters of credibility. Del Vecchio v. Del Vecchio, 169 Pa. Super. 617, 84 A.2d 261 (1951). The Court must "examin[e] the record to discover inherent improbabilities in the stories of the witnesses, inconsistencies and contradictions, bias and interest, opposition to incontrovertible physical facts, patent falsehoods . . . ." 12 P.L.E. ยง 143 Divorce; see also, Faszczewski v. Faszczewski, 182 Pa. Super. 295, 126 A.2d 773 (1956); Rankin v. Rankin, 181 Pa. Super. 414, 124 A.2d 639 (1956).' Ryave v. Ryave, 249 Pa. Super. 78, 85, 375 A.2d 766, 770 (1977); Barton v. ...


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