No. 68 Philadelphia, 1983, Appeal from Decree of the Court of Common Pleas, Civil Division, of Delaware County, No. 80-9077.
Norman L. Goldberg, Media, for appellant.
Charles Nistico, Chester, for appellee.
Wieand, Olszewski and Popovich, JJ.
[ 335 Pa. Super. Page 297]
This appeal is from a final decree in divorce. Appellant's sole contention is that the trial judge erred in granting a divorce pursuant to Section 201(d)(1) of the Divorce Code when a portion of the three year separation period was allegedly due to an Order entered under the Protection From Abuse Act. We reject appellant's argument and affirm the decree of divorce.
James McBride and Meredith Fox McBride lived together for approximately one year prior to their marriage on November 26, 1976. They continued to live together until January 27, 1977, when James, the appellee, was arrested at the marital residence following an argument with his wife, Meredith, who is the appellant herein. Following this altercation, James was charged with unlawful possession of firearms and assault. On April 26, 1977, he was sentenced to two years probation and continued psychiatric treatment. Thereafter, appellee took up residence in the basement of a
[ 335 Pa. Super. Page 298]
duplex owned by appellant. Appellee did not then, nor at any later time, return to and cohabit with appellant, although there apparently were sporadic sexual liaisons prior to November, 1977.
On November 18, 1977, appellant filed a petition pursuant to the Protection From Abuse Act, 35 P.S. § 10181 et seq. A final order was not entered until July 19, 1978, when, by mutual consent of the parties, appellee was enjoined from abusing or harassing appellant and was excluded from the marital residence for a period of one year. In August of 1978, appellant moved to Florida, where she continues to reside at the present time.
On July 1, 1980, James filed a complaint in divorce alleging that the marriage was irretrievably broken and that the parties had been living separate and apart for a period in excess of three years, commencing on or about January 27, 1977. Appellant denied via answer that the parties had lived separate and apart as defined by the Divorce Code of 1980. On June 25, 1982, following evidentiary hearings, the Master recommended a divorce. Appellant's exceptions to the Master's Report were dismissed by the trial court, and a final decree in divorce was entered on November 3, 1982. This appeal followed.
When reviewing an order granting a divorce, this Court bears the responsibility for making a de novo evaluation of the record; it must decide, independently of the trial court and the Master, whether a legal cause of action in divorce exists. Jones v. Jones, 311 Pa. Super. 407, 410-411, 457 A.2d 951, 952 (1983); Dukmen v. Dukmen, 278 Pa. Super. 530, 534, 420 A.2d 667, 670 (1980). Although a Master's Report is advisory only, it is given the fullest consideration, particularly on the issue of credibility of witnesses. Eichmann v. Eichmann, 319 Pa. Super. 100, 101, 465 A.2d 1248, 1249 ...