Rinoldo v. Rinoldo

• Decision Date: 29 January 1937
• Docket Number: 39-1933
• Citation: 189 A. 566,125 Pa.Super. 323
• Parties: Rinoldo v. Rinoldo, Appellant
• Court: Pennsylvania Superior Court

189 A. 566

125 Pa.Super. 323

Rinoldo v. Rinoldo, Appellant

No. 39-1933

Superior Court of Pennsylvania

January 29, 1937

Argued December 9, 1936

Appeal from decree of C. P. No. 1, Phila. Co., March T., 1931, No 3070, in case of Frank Rinoldo v. Rose Rinoldo.

Libel for divorce a. v. m.

The facts are stated in the opinion of the Superior Court.

Report of master filed recommending divorce on grounds of cruel and barbarous treatment and indignities to the person. Exceptions to report dismissed and decree entered granting divorce on grounds recommended by the master, opinion by McDevitt, P. J Respondent appealed.

Error assigned was final decree.

Decree affirmed.

Reuben Levi, with him Joseph L. Fox, for appellant.

Harry A. DeMar, for appellee.

Before Keller, P. J., Cunningham, Baldrige, Stadtfeld, Parker, James and Rhodes, JJ.

OPINION

Rhodes, J.

Frank Rinoldo, the libellant, brought an action for divorce a vinculo matrimonii against his wife, Rose Rinoldo. The libel was filed March 12, 1931, alleging as grounds for divorce (1) cruel and barbarous treatment endangering his life; (2) indignities to his person such as to render his condition intolerable and life burdensome; (3) desertion.

The master recommended the divorce on the first and second grounds. Exceptions to the master's findings and recommendations were filed by respondent and dismissed by the court below; and the divorce was granted on the grounds recommended by the master. The respondent took this appeal December 1, 1932, but, for some reason not apparent from the record before us, the case was not argued until December 9 1936. The final decree is assigned as error.

The burden is upon the libellant to prove his case by clear and satisfactory evidence, and there must be a preponderance of the evidence in his favor. Sleight v. Sleight, 119 Pa.Super. 300, 181 A. 69.

If the issues of fact have been determined by a jury, the duty of this court is to examine the testimony for the purpose of ascertaining whether there is evidence to support the verdict. King v. King, 113 Pa.Super. 285, 173 A. 432.

Where, however, as in this case, the action is heard before a master, we are obliged to make an independent investigation of the evidence in order to learn whether it does in truth establish a legal cause for divorce. King v. King, supra; Sleight v. Sleight, supra; Mertz v. Mertz, 119 Pa.Super. 538, 180 A. 708. The same obligation devolves upon the court below (Wagner v. Wagner, 112 Pa.Super. 485, 494, 171 A. 419, 422), and its performance of this judicial function is mandatory. Langeland v. Langeland, 108 Pa.Super. 375, 379, 164 A. 816, 817. "The Divorce Law" of May 2, 1929, P. L. 1237 (23 PS § 1 et seq.) did not relieve our appellate courts, or those of original jurisdiction, of these responsibilities (Wagner v. Wagner, supra; Brown v. Brown, 121 Pa.Super. 74, 183 A. 90; Langeland v. Langeland, supra), which it had been their duty to discharge under previous statutes and decisions. ^[1]

The court below erroneously stated in its opinion that "the only criterion that should be considered by the court, when exceptions have been taken to the findings of the master, is whether manifest error has been committed by him"; and that "the master's office is analogous to that of a jury which constitutes a fact-finding body."

Section 36 of The Divorce Law of 1929 (23 PS § 36) provides that: "When neither of the parties takes a rule for a jury trial, or when, after hearing, the rule is discharged, the court may proceed to hear the cause, or may, upon motion of either party, appoint a master to take testimony and return the same to the court"; and section 54 of that act (23 PS § 54) is as follows: "Where a master has been appointed, he shall make a report to the court of the proceedings had before him, and his opinion of the case." This act does not confer on the master the same power as an auditor or a master in equity, nor does it give his findings of fact and recommendations the force and effect of findings of fact by them. The master's report does not come to the court of common pleas, or to this court, with any preponderating weight or authority which must be overcome by the respondent. While the master's report is entitled to the fullest consideration because of his personal contact with the witnesses, nevertheless the court of common pleas must still be satisfied by its own knowledge of the testimony that the averments of the libel have been proved by full and competent evidence before a decree can be granted. Burns v. Burns, 84 Pa.Super. 489; Rommel v. Rommel, 87 Pa.Super. 511.

Libellant and respondent were married January 25, 1930, after a week's acquaintance, as the result of an introduction by one of libellant's witnesses who testified that "she [respondent] asked me if I could look around and find her a good man, because she was then a widow." Libellant was born in Italy and came to this country in 1913. He was a naturalized citizen, and has been a resident of Philadelphia since 1916. Respondent was born in Hammonton, N. J., and was also a resident of Philadelphia when this action was brought and for some time prior thereto. At the time of the hearing, both parties were fifty-two years of age. They lived together until June 18, 1930, when respondent left libellant without any plausible reason. Both parties had been married previously; and respondent had a child, by her first marriage, who lived with the parties during the four months and three weeks of their married life.

The marital troubles between libellant and respondent began the first day they were married. She accused him of certain physical defects, and said she wanted to live with somebody else. She often made the same humiliating allegations to others, who testified and corroborated libellant. She called him vile names, and accused him of being a drunkard. In the presence of others she spit in his face, and on one occasion, at least, grabbed him by the throat and struck him over the head with a bottle. Respondent refused to do the family laundry, to clean the house, or to cook for libellant. During the short duration of their married life libellant lost thirty-five pounds in weight.

Employed for seventeen years as a laborer by the Baltimore & Ohio Railroad Company, libellant's wages averaged $ 35 per week, and, according to his testimony, he gave his entire earnings to respondent as long as they lived together. Respondent admitted that libellant gave her all his wages during the first three months after their marriage. Respondent continually expressed dissatisfaction with his earnings, and on several occasions threatened to poison him. She made various financial demands upon him, and particularly sought to have the property which libellant owned, and in which they lived, conveyed to her. Witnesses for libellant testified to statements by respondent that she had no use for him; that she would leave unless he put the house in her name; and that he was merely a "dying Moses." She also suggested to libellant that they use their home for prostitution, and in that way increase their income. At least two witnesses testified that they were approached by respondent and requested to use their influence to have him give her $ 300 to $ 500, in consideration of which she would leave him alone. She complained to others that libellant was not earning a sufficient income, and that only a "dummy" worked on a railroad track.

Respondent made numerous telephone calls to the superintendent's office of the railroad company, and annoyed the officials with inquiries as to libellant's whereabouts. Her actions in this respect nearly resulted in his discharge. With reservations, the respondent admitted these calls and the fact that a foreman under whom libellant worked visited her and requested that she cease such conduct. The evidence of this foreman and other witnesses attested libellant's sobriety.

The evidence shows that respondent's attitude toward libellant was one of manifest hatred, contempt, and hostility. Her language was vulgar, and her references to his alleged physical incapacity, made to him and to others, were most indecent. The short space of time during which the libellant and respondent lived together naturally afforded but little opportunity for corroborative testimony as to respondent's conduct toward libellant; but the evidence is sufficient to show that her conduct during this time was one of continued indignities. Notwithstanding the fact that respondent denies...