Arcure v. Arcure

• Decision Date: 21 September 1971
• Parties: Salvatore ARCURE, Appellee, v. Angelina ARCURE, Appellant.
• Court: Pennsylvania Superior Court

281 A.2d 694

219 Pa.Super. 415

Salvatore ARCURE, Appellee, v. Angelina ARCURE, Appellant.

Superior Court of Pennsylvania.

September 21, 1971.

David H. Kubert, Vito N. Pisciotta, Philadelphia, for appellant.

David Weinstein, Philadelphia, for appellee.

Before WRIGHT, P.J. and WATKINS, MONTGOMERY JACOBS, HOFFMAN, SPAULDING and CERCONE, JJ.

CERCONE, Judge.

This is an appeal by the wife-defendant from the lower court's order granting husband-plaintiff a final decree of divorce on the ground of indignities, contrary to the Master's recommendation that the Complaint in divorce be dismissed.

The lower court said: 'We have read the testimony and report of the Master. We have given that report great consideration especially since the credibility of the witness is an important issue. But a review of the testimony will not support the recommendation of the Master. We must therefore reject his recommendation and, on the evidence, grant the prayer of the Complaint.' The lower court was duty bound, as is this court, to make its own independent examination. The Master's recommendations and conclusions cannot control the lower court's nor this court's appraisal of the weight and credibility of the testimony: Sacavitch v. Sacavitch, 206 Pa.Super 229, 231, 212 A.2d 926 (1965); Blatt v. Blatt, 206 Pa.Super. 177, 212 A.2d 907 (1965). As seated in Pasternak v. Pasternak, 204 Pa.Super. 339, 204 A.2d 290 (1964):

'It is true that the report of the master is entitled to great consideration in that he has heard and seen the witnesses and we have so held on numerous occasions, Fiorilli v Fiorilli, 202 Pa.Super. 529, 198 A.2d 369 (1964); and that it should not be lightly disregarded, but however, it is advisory only and the reviewing Court is not bound by it and it does not come to the Court with any preponderate weight or authority which must be overcome. The reviewing Court must consider the evidence de novo, its weight and the credibility of the witnesses. The master's report is not controlling either on the lower court or upon the appellate Court. Rankin v. Rankin, 181 Pa.Super. 414, 124 A.2d 639 (1956).

'We must, therefore, examine this record de novo, consider carefully the master's report and at the same time give great weight to the opinion of the court below wherein this evidence was already considered de novo and the credibility of the witnesses carefully examined in view of the master's report.'

Our independent review and study of the entire record in this case lead to the conclusion reached by the court below, that plaintiff's testimony did establish a course of conduct of the part of the defendant making his life burdensome and condition intolerable, and constituting indignities to the person of the plaintiff. Without detailing all the evidence, it is sufficient to note that plaintiff's testimony, as summarized in part by the court below, 'indicated that the defendant did not cook her husband's meals regularly nor clean the marital home. When pressed, she would become argumentative and abusive. He further testified that the defendant would use vile language towards him, threaten him physically with a knive, and finally forced him to leave the marital home.'

Plaintiff's evidence clearly established a course of conduct on the part of defendant which manifested settled hate and estrangement and constituted indignities under the divorce law. As stated in Margolis v. Margolis, 201 Pa.Super. 129, 133, 192 A.2d 228, 230 (1963): 'Indignities may consist of vulgarity, unmerited reproach, habitual contumely, studied neglect, intentional incivility, manifest disdain, abusive language, malignant ridicule, and every other plain manifestation of settled hate and estrangement.'

A divorce may be granted upon the uncorroborated testimony of the plaintiff unless, of course, that testimony 'is not only contradicted but also shaken by the defendant': Pascoe v. Pascoe, 201 Pa.Super. 357, 359, 191 A.2d 739, 740 (1963). A review of the testimony of the defendant and her daughter reveals a failure to so contradict and shake the plaintiff's testimony as to render the latter insufficient upon which to base a decree of divorce. Defendant's credibility, as noted by the Master himself, left much to be desired. The record reveals evidence of untruthfulness on defendant's part. Her denials were always categorical and argumentative, consistent with plaintiff's allegations as to her conduct during the marital relationship. Her testimony demonstrated a quality less than credible. The Master himself commented on this as follows:

'There are also marked...