Castner v. Castner
| Decision Date | 19 July 1946 |
| Citation | 159 Pa.Super. 387,48 A.2d 117 |
| Parties | Castner, Appellant, v. Castner |
| Court | Pennsylvania Superior Court |
Argued April 15, 1946.
Appeal, No. 68, April T., 1946, from decree of C. P Washington Co., Aug. T., 1944, No. 131, in case of Harold S Castner v. Sophia Margaret Castner.
Divorce proceeding.
Report of Master filed finding that charge of indignities had been sustained and recommending decree of divorce. Exceptions to report sustained and decree entered refusing divorce, opinion by Gibson, P. J. Libellant appealed.
Paul N. Barna, for appellant.
Joseph M. Loughran, with him D. M. Anderson and Scales, Loughran & Shaw, for appellee.
OPINION
BALDRIGE J.
This appeal by the libellant is from the decree of the court below refusing to grant him a divorce on the ground of cruel and barbarous treatment and indignities after a master had made a report favorable to him. A master's recommendation is advisory only, but as we have frequently said, it is entitled to, and we in the exercise of our independent judgment have given it, careful consideration: Philo v. Philo, 154 Pa.Super. 563, 36 A.2d 833. In viewing this record it must be kept in mind that the burden rests upon the libellant to establish by clear and satisfactory proof that he is entitled to a severance of the marital ties: Welsh v. Welsh, 142 Pa.Super. 421, 16 A.2d 672; Cobaugh v. Cobaugh, 146 Pa.Super. 521, 22 A.2d 764. It is for us to determine whether he has succeeded in so doing.
The parties were married in Westmoreland County on June 23, 1925, and immediately moved to Washington County. The libellant, employed as a janitor, is 42 years of age; the respondent is 39. Three children are living that were born to the marriage; two boys, now 18 and 13 years of age, live with their father, and a girl, 5 years of age, is with respondent's sister. In 1937 the respondent was confined to the Mercy, and later to the St. Francis, Hospital in Pittsburgh where she was under observation due to a nervous collapse. On September 7, 1938, the libellant had her committed to the Somerset County Home and Hospital as a psychiatric patient. She remained there for some unstated time when she was paroled in care of her mother, a resident of Westmoreland County. In February 1940 libellant instituted a divorce proceeding in Washington County. Sometime after the respondent caused an appearance to be entered in her behalf the libellant discontinued his action. Shortly thereafter they resumed living together and maintained their marital relations before respondent was committed to the Torrance State Hospital for the Insane. It is stipulated by the attorneys for both parties that the respondent is now confined there "as a hopeless lunatic or a person non compos mentis."
The libellant testified that he was compelled to move his home many times because the respondent's conduct disturbed their neighbors; that on numerous occasions she walked on the streets at night until she was picked up by men in cars and would not return home until late hours; that she often visited her mother with whom she would remain for a week or two at a time. He claims that frequently she used vile language, scratched his face, pulled his hair, threw knives and dishes at him, and charged him with intimacy with other women; that she attempted to poison him twice, spent the money he furnished for food to buy cosmetics, etc., and insisted upon having money for a fur coat, clothes, and luxuries which he could not afford; that she neglected the home and the children, and her conduct toward him was such that he was compelled to sleep in the cellar.
The libellant was corroborated to some extent by his two sons and several other witnesses. The testimony of these young boys related principally to events alleged to have occurred when the elder was about 10 years of age and the younger 8 years. In considering their testimony we cannot overlook the fact that they are living with their father and wanted to favor him.
Grover Sweitzer, a man 60 years of age who lived in the same apartment as the Castners, called by libellant, testified that every time he met respondent she tried "to make a date" with him. He first stated that he was approached by the respondent "before and since" she went to Somerset, but later he fixed it as just before she was taken to Torrance, but acknowledged that he never saw her "do anything out of the way."
Mrs. Kitchens, another witness, said she heard respondent call libellant vile names and saw her throw dishes off the table, but on cross-examination it was disclosed that she was testifying to events, most of which occurred three days before respondent was removed to Torrance Hospital.
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