Priest v. Priest
| Decision Date | 08 March 1948 |
| Citation | 57 A.2d 437,162 Pa.Super. 232 |
| Parties | Priest v. Priest, Appellant |
| Court | Pennsylvania Superior Court |
Argued October 2, 1947.
Appeal, No. 73, Oct. T., 1947, from decree of C. P. No. 4 Phila. Co., Sept. T., 1944, No. 1591, in case of Elmer Priest v. Emma M. Priest.
Divorce proceeding.
Report of master filed recommending that a decree of divorce be granted on the ground of indignities. Exceptions to report of master dismissed and decree of divorce entered, opinion by Bluett, J. Respondent appealed.
Melvin Alan Bank, with him John Pemberton Jordan, for appellant.
No one appeared or filed a brief for appellee.
OPINION
HIRT J.
The master found the charge of indignities sustained by the proofs and recommended a divorce on that ground. The lower court adopted the findings and recommendation of the master and entered a decree of divorce. We have considered the testimony de novo and have passed upon its weight, as we are bound under the law. With due deference to the master, who saw and heard the witnesses (Fishman v. Fishman, 134 Pa.Super. 217, 4 A.2d 543) we find ourselves in disagreement with him. Our conclusion on the merits is that the charge of indignities has not been sustained. The decree will be reversed.
The parties were married on November 20, 1916. The separation occurred on August 18, 1944, when libellant left the respondent. Libellant is about 50 years old and the respondent 52. They have two daughters and one son, all adults. The master based his recommendation on two findings viz.: that respondent habitually called the libellant opprobrious names, and repeatedly accused him of marital infidelity.
Notwithstanding the "belligerent" attitude of the libellant as a witness and his attempt to control the scope of his examination, the master accepted his testimony as true. We do not agree with that estimate of libellant's credibility. When pressed, he was evasive and his testimony was self-contradictory and inconsistent in a number of material respects. The master accepted the testimony of libellant's sister, also, who clearly was prejudiced. On the other hand he was unable to believe the testimony of the respondent, corroborated as it was, by her two daughters. Her testimony in the main, as well as that of the daughters, has the ring of truth. She frankly admitted that she had accused the libellant of infidelity throughout the years of their married life but she denied calling him opprobrious names except such as implied philandering or adulterous conduct. Her testimony refuted completely other alleged acts of indignities (the master must have so found for there is no reference to them) and we find that the charge of name-calling has not been sustained by credible evidence. Libellant's association with a number of women was not denied but the reasons which he advanced for going out with them are not impressive. And we cannot accept his naive protestations of innocence in the face of admitted facts and circumstances which provoked the charges of marital infidelity.
The testimony in this case was taken at five hearings over the period of a whole year. The record is a history of their married life in much detail. It is significant that in more than 450 pages there is not a single word nor testimony of an act of libellant which indicates that he ever had any real affection for his wife. The marriage from his viewpoint apparently was merely one of convenience. Respondent kept house for him and with little in return bore and reared his three children. He concedes that she was a good mother and a good cook.
Libellant took his wife to a vaudeville or picture show occasionally, but only in the early days of their marriage. He admits that he hasn't taken her anywhere in the last 8 or 10 years. It is difficult to believe, but it was proven without contradiction, that he spent only a few evenings at home during his whole married life and then only when he was ill. He was commendably loyal to his mother who lived in the neighborhood; he went to her house every evening and performed some service for her. But what he did for his mother does not explain his failure to return to his home at reasonable hours. Interests other than his mother account for his habitual absence from his home until after midnight. Her death three years before the hearings in the case did not change his conduct.
Early in his married life libellant was intimate with one Florence Connelly. He admits that she demanded money from him because of her pregnancy. We are unable to accept his explanation of the affair, in which he disclaimed responsibility for her condition. He also admits having "gone out" with one Mary O'Donnell over a period of years although he said that they were always in the company of others. For a time he carried her photograph in his wallet for a reason given by him which also is difficult to accept....
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