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GLENN MARTIN MOORHEAD v. DORIS ELIZABETH MOORHEAD (05/23/80)

filed: May 23, 1980.

GLENN MARTIN MOORHEAD,
v.
DORIS ELIZABETH MOORHEAD, APPELLANT



No. 112 April Term, 1979, Appeal from Order in the Court of Common Pleas of Lawrence County, Civil Division, No. 393 of 1977.

COUNSEL

Harry O. Falls, New Castle, for appellant.

Donald E. Williams, New Castle, for appellee.

Price, Hester and Cavanaugh, JJ.

Author: Hester

[ 278 Pa. Super. Page 276]

Presently before the court is appellant's appeal from an Order dated January 3, 1979 granting appellee a divorce from the bonds of matrimony from appellant on the grounds of indignities to the person.

We reverse and dismiss the complaint.

In McCaskey v. McCaskey, 253 Pa. Super. 360, 364, 385 A.2d 378, 381 (1978), we again reiterated the cornerstones of our scope of review as well as the applicable principles of law in an appeal from the grant of a divorce from the bonds of matrimony on the grounds of indignities to the person:

[ 278 Pa. Super. Page 277]

"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. Barton, 248 Pa. Super. 278, 375 A.2d 96 (1977); Shacreaw Page 277} v. Shacreaw, 248 Pa. Super. 223, 375 A.2d 68 (1977). However, we have frequently stated: "while the findings and recommendation of the master are only advisory, where the issue is one of credibility and the master is the one who heard and observed the witnesses, his findings should be given the fullest consideration. Schrock v. Schrock, 241 Pa. Super. 53, 359 A.2d 435 (1976); Gehris v. Gehris, 233 Pa. Super. 144, 334 A.2d 753 (1975)." DeBias v. DeBias, 245 Pa. Super. 266, 272, 369 A.2d 396, 399 (1976)."

To crystalize this distinction, the Gehris v. Gehris court, supra at 755 opined:

For example, if the ultimate decision rests on a statement asserted by one party and denied by the other, where there is no corroborative evidence, demeanor on the stand is necessarily dispositive of the issue and is the kind of evidence that cannot effectively be reviewed by an appellate court.

The McCaskey court (supra at p. 381) continued:

Section 10(f) of the Pennsylvania Divorce Law,*fn1 supra, provides inter alia that: ". . .

[I]t shall be lawful for the innocent and injured spouse to obtain a divorce from the bond of matrimony, whenever it shall be judged, . . . that the other spouse: . . . [s]hall have offered such indignities to the person of the injured and innocent spouse, as to render his or her condition intolerable and life burdensome." "While our appellate courts have been reluctant to formulate a general definition of what constitutes 'indignities,' we have noted that indignities may consist of vulgarity, unmerited reproach, habitual contumely studied neglect, intentional incivility, manifest disdain, ...


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