Graves v. Graves
| Decision Date | 11 June 1957 |
| Citation | 184 Pa.Super. 265,132 A.2d 699 |
| Parties | Eugene H. GRAVES, Jr., Appellant, v. Ernestine D. GRAVES. |
| Court | Pennsylvania Superior Court |
Argued March 20, 1957
Appeal, No. 56, Oct. T., 1957, from order of Common Pleas Court No. 6 of Philadelphia County, March T., 1954, No. 5607 in case of Eugene H. Graves, Jr. v. Ernestine D. Graves. Record remanded.
Divorce.
Report of master filed recommending dismissal of complaint exceptions to master's report dismissed and order entered dismissing complaint, opinion by FLOOD, J. Plaintiff appealed.
We therefore, remand the record to the court below for reference to a master to take additional testimony as to the facts of residence of both parties since August 15, 1951, so that a determination can be made as to the charge of desertion, without reliance on the hospital records and evidence extraneous to the record. We suggest, that under the circumstances of this case, the court might wisely refer it to a different and more impartial master.
F. Raymond Heuges, for appellant.
No appearance was made nor brief submitted for appellee.
Before RHODES, P.J., HIRT, GUNTHER, WRIGHT, WOODSIDE, ERVIN, and WATKINS, JJ.
This is an appeal from the dismissal of exceptions to, and the affirmation of, a master's report in an action in divorce. Eugene H. Graves brought this action in divorce against his wife, Ernestine D. Graves, alleging a desertion, beginning August 15, 1951. They were married February 10, 1951. The husband is 23 years of age, the wife 21. They are members of the colored race. There is one child of the marriage. The master found as a fact that there had been no separation of the parties by desertion, or otherwise, beginning on August 15, 1951 and persisting for a period of two years. He recommended a dismissal of the complaint and was affirmed by the lower court.
The testimony of the plaintiff and the defendant disclosed a separation on August 15, 1951 and persisting continuously thereafter. He testified "She just said she didn't want to live with me no more." The defendant said, as to her reason for leaving him, She said she couldn't live with him because she didn't love him.
Even the master acknowledges that since January, 1955, the parties did not live together and that this marriage is terminated insofar as living together, under any circumstances, is concerned.
The master's recommendation of the dismissal of the complaint is based upon his conviction that the plaintiff and defendant were untruthful. This conviction was based upon the fact, that, on September 22, 1955, prior to the official master's hearing, he visited the homes of both parties and during his visit to the home of the defendant's mother, the plaintiff appeared for the purpose of visiting his child. The master proceeded to interrogate the plaintiff, the defendant, the defendant's mother and the defendant's sister. This questioning took place without any notice to counsel and without giving counsel an opportunity to be present. The master was of the white race. The parties were very young, the defendant having just become 21 years of age on August 27, 1955. None of the people so interrogated were under oath at the time and although the master indicated that he took notes, such notes are not a part of this record. At the time of his visit he was a white stranger who entered this home and stated he was the master in the divorce case and displayed a letter of appointment.
When a master's hearing was held, the master used these notes, extraneous to this record, for the purpose of cross-examination of the parties and the examination of the defendant's younger sister, who he called as a witness. He then claimed a divergence in what was said on his visit and what they testified to under oath and concluded that "The testimony is replete with contradictions."
This master was certainly enthusiastic in the performance of what he thought to be his conscientious duty as a...
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