Bobst v. Bobst
| Decision Date | 29 September 1947 |
| Docket Number | 2908 |
| Citation | 357 Pa. 441,54 A.2d 898 |
| Parties | Bobst, Appellant, v. Bobst |
| Court | Pennsylvania Supreme Court |
Argued June 30, 1947
Appeal, No. 149, Jan. T., 1947, from order of Superior Court Oct. T., 1946, No. 48, reversing decree of C.P. No. 3, Phila. Co., Dec. T., 1944, No. 456, in case of Isaac J. Bobst v Margaret McFall Bobst. Order reversed; reargument refused November 10, 1947.
Same case in Superior Court: 160 Pa.Super. 340.
Divorce proceeding.
Supplemental report of master filed recommending decree of divorce be granted on the ground of indignities to the person. Decree of divorce entered, opinion by MILNER, J. Respondent appealed to the Superior Court, which reversed the decree of the court below. Appeal by libellant to Supreme Court allowed.
The order of the Superior Court is reversed and the decree entered by the court of common pleas is reinstated and is affirmed. The costs shall be paid by the libellant.
Thomas D. McBride , with him Paul F. Barnes and Charles D. Smeltzer , for appellant.
Everett Kent , with him A. E. Hurshman , for appellee.
Before MAXEY, C.J., DREW, LINN, STERN, PATTERSON, STEARNE and JONES JJ.
This was a suit by a husband for divorce on the ground of indignities [1] to the person: Divorce Code of 1929, P.L. 1237, 23 P.S. section 10 (f). The common pleas granted the divorce; the Superior Court reversed and dismissed the libel: 160 Pa.Super. 340, 51 A.2d 414. On libellant's petition, we allowed this appeal.
The parties were married in Philadelphia in 1927. The libellant was then a minister of the Evangelical denomination and was, or soon thereafter became, pastor of the Calvary Evangelical Church; the parties lived in the parsonage supplied by the congregation of that church at 574 W. Dauphin Street, Philadelphia. On or about May 5, 1944, they separated and respondent went to the home of her parents in Bangor, Northampton County, where she has since resided. In consequence of the differences between libellant and respondent the libellant lost his position as pastor of the church. Thereafter he was employed as superintendent of the Evangelical Home in Philadelphia.
The libel was filed November 29, 1944. Libellant was then about 43 years of age and respondent about 42. There was personal service of the subpoena and libel on December 9, 1944, together with a rule to appear and answer on the first Monday of January, 1945. Vincent P. McDevitt, a lawyer of wide experience, was appointed master. Respondent admitted receiving notice from him on or about February 27, 1945, fixing a time, March 20, 1945, and place for hearing, but she did not appear. The hearing was duly held and the libellant and three witnesses testified. The master filed a report on May 1, 1945, recommending a decree. The report was approved by the court and on May 15, 1945, a final rule issued, returnable May 28th, directing respondent to show cause why a decree of divorce a.v.m. should not be granted. This rule was served on the respondent in her home in Bangor. Thereafter, on June 4, 1945, counsel for respondent filed an appearance on her behalf. She also filed an answer to the libel and petitioned the court to vacate the rule for final decree and to refer the proceeding back to the master to take testimony in defense. The court granted that petition. At this supplementary hearing, Judge MILNER sat with the master and participated in the hearing. The respondent and witnesses on her behalf were examined and cross-examined, and the libellant was cross-examined by respondent's counsel. The master then filed a supplementary report in which he concluded that the respondent had produced no defense to the case made out by the libellant and again recommended that the decree prayed for be granted. The respondent filed exceptions to the master's reports. Argument on these exceptions was heard by the three judges of the common pleas who dismissed the exceptions in an opinion written by Judge MILNER. A final decree followed in due course.
The question is, Whom shall we believe? The answer to that question must be found by applying to the record the cold tests of common experience and not by emotional approach. It is the duty of appellate courts in divorce cases, unless there has been an issue and jury trial, to examine the evidence de novo for the purpose of determining whether the complaint alleged in the libel has been sustained. [2] The scope of the court's inquiry therefore is not limited, as it is in reviewing appeals in equity or where jury trial has been waived, to examination of the record to see whether there was evidence to support the challenged findings of fact. It is recognized that a trier of facts, who sees the parties and their witnesses and hears them testify, has a distinct advantage, in determining which of divergent or contradictory statements should be accepted as true, over reviewing tribunals whose only information comes from the printed page. [3]
In reviewing the record now before us, we have the benefit not only of the master's two reports but we have the fact that Judge MILNER sat with the master during the second hearing and when he wrote the opinion of the court in banc, had the advantage of having heard and seen the parties and all respondent's witnesses as they testified. We also have the benefit of the opinion of the Superior Court differing from the view taken by the master and the court of common pleas.
If there had been no second hearing, the evidence of the libellant and the three witnesses called on his behalf would support the decree first recommended by the master; up to that time, there was no challenge to credibility. Respondent obtained a reopening of the case and the supplementary hearing on an averment, inter alia, that at the time she was served with process and when she received the master's notice she was too ill to attend to the defense of the suit. But her own evidence shows that statement was not true; she misrepresented a material fact and that misrepresentation casts suspicion and doubt on her testimony. [4] At that time she was engaged in teaching [5] a public school near Bangor in Northampton County. After the separation she had been ill for some time during the summer of 1944, but she recovered sufficiently to begin teaching with the opening of the fall school term and to continue teaching right along except for holiday vacations and short absences not material on the point now being considered. Respondent's father, who was called as a witness on her behalf, participated in the same misrepresentation of fact. He said, when process was first served, he considered with respondent, what should be done about defending the suit and consulted counsel but nothing came of it. After some uncertainty in his evidence concerning respondent's failure to appear at the hearing in March, the master asked him, "Well, why didn't you communicate with me that fact, in response to my letter?" His answer was not helpful; he replied, "Well, it looks very much to me as if we had the wrong lawyer." He testified that respondent "was teaching school in February and in March" when the master's hearing was held.
The record also shows that when respondent's application for leave to appear and defend came before the court for hearing, the following occurred:
In determining whom to believe this court cannot disregard the misstatements of fact made under oath by the respondent and the witness and must conclude that they misrepresented to the court an essential fact in the effort to avoid action on the final rule. The Superior Court's opinion does not discuss the effect of this misrepresentation on the credibility of respondent and her witness.
In the master's first report he found, among other facts, that beginning about six months after their marriage the respondent "made accusations concerning other women" and that "This continued during the years," until in 1938 she repeated the accusation before her father and one of their children and a guest of that child; the accusation then resulted in her father's threat [6] to shoot libellant. In 1939 respondent moved libellant's bed and belongings from the second floor to the third floor bedroom which he occupied until the separation in 1944. He made his own bed and cleaned his own room. In 1940 Libellant found glass in stewed rhubarb served to him and thereafter "the Libellant ate no meals at the family table for fear that she would threaten his life as he felt she did at that time." In the same year she declined to do his laundry and "told him to get it done elsewhere, which he did." "The Respondent on various occasions told the Libellant she hated him and would have nothing to do with him." The master referred to other matters and noted that in some respects the libellant was corroborated. Mrs. Seney, described as a friend of both parties and a member of libellant's church, testified. Her evidence shows that apparently after the friction between the parties had become acute, the witness, while in the parsonage, was treated very impolitely by the respondent. She testified that during church services the respondent talked and laughed "loud enough for people around to hear"; respondent was in the habit of doing that and did it while her husband was preaching and during prayer services especially. She specified an occasion on which "the District Superintendent was there and she kept that up until he...
To continue reading
Request your trial