52 A.2d 241 | Pa. Super. Ct. | 1947
Argued March 3, 1947. The libel in this divorce action averred that respondent had, by cruel and barbarous treatment, endangered libellant's life, and had offered such indignities to his person as to render his condition intolerable and life burdensome. The parties were married March 16, 1932, at Towanda, Pennsylvania, and lived and cohabited at Oneonta, New York, until April 1942, when the libellant moved to Wilkes-Barre.
The matter was referred to a master who, after finding that the respondent pursued toward the libellant husband a course of conduct marked by cruel and barbarous treatment and indignities to the person, recommended a divorce a.v.m. Exceptions filed to the master's report were overruled by the court below, the decree of divorce was granted, and this appeal was taken.
Respondent's answer to the libel, in addition to denying the allegations of cruel and barbarous treatment and indignities, averred that the libellant had not been "a bona fide resident of the State of Pennsylvania and County of Luzerne for a period of one full year and upwards previous to the filing of the Libel". Consequently, jurisdiction of the lower court is the first question presented for our consideration.
Our divorce laws were not enacted for the benefit of non-residents and the fundamental policy of the Commonwealth forbids resort by strangers to its courts for the purpose of divorce. Dulin v. Dulin,
"Residence" within the meaning of the statute means a "permanent one with domiciliary intent". Gearing v. Gearing,
Every person has at all times one domicile and no person has more than one domicile at a time. Restatement of Conflict of Laws, sec. 11. When a domicile is once acquired it is presumed to continue until it is shown to have been changed, and when a change is alleged the burden is upon the one making the allegation to prove a residence in a new locality and an intention to remain there. Alburger v. Alburger,
After their marriage, the parties resided together in Oneonta, New York, until April 14, 1942, when the libellant left the marital habitation, taking with him his clothes and other personal belongings, and rented a room in a rooming house on East Market Street, Wilkes-Barre. He is a locomotive engineer, whose run is between Wilkes-Barre and Oneonta, and his work requires him to stay in each place every other night. Prior to the separation, when the libellant was in Wilkes-Barre, he "got a bed from night to night", but since the separation he has occupied the East Market Street room continuously when in Wilkes-Barre with the exception of two months in the summer of 1943 when, for reasons of health, he lived in a rented room in Forty Fort, *520 Luzerne County, approximately two miles from Wilkes-Barre. He testified that he moved to Wilkes-Barre because it "seemed like home to me", he having been born there, and that he has considered it his "legal residence" since April 14, 1942. His testimony relative to his continuous occupancy of the room on East Market Street was corroborated by his landlady and others.
In determining the existence of a domiciliary intention all the circumstances must be considered and the evidence necessary to constitute domiciliary intent varies with the case. The proof of change of a domicile does not depend upon any particular fact but upon whether all the facts taken together tend to establish a new, fixed and permanent residence. Reed v. Reed,
The fundamental characteristic of cruel and barberous treatment is the commission of acts of physical violence or the creation by words or conduct of the reasonable apprehension of such violence. A single act of cruelty may be so severe and with such attending circumstances of atrocity as to justify a divorce. Eberly v.Eberly,
It is in evidence that the respondent assaulted the libellant with a pair of pruning shears, stabbing him twice in the arm and hand and "tried to reach my eyes", necessitating medical attention. It would appear that these two veterans of matrimony and marital skirmishes *521 (this was the libellant's second marriage and the respondent's third) were thorough and emphatic in prosecuting their domestic squabblings. It was testified that on innumerable occasions over a period of years and almost continuously, the wife called her husband "a liar", "a crook", "a thief", and other less savory names. She accused him of having a social disease and of running around with other women. This type of quarreling had been continuous for almost all of their married life and it was necessary for the libellant to receive frequent medical attention as a result of the course of treatment to which he was subjected. The respondent did not deny the name-calling and her denial of the stabbing incident was evasive; in fact, her testimony and her manner of giving it — discernible from a reading of the cold record — strengthens the libellant's case.
It is the duty of this court to decide whether the libellant has presented "clear proof of imperious reasons" in establishing the essential facts of his case. Dailey v. Dailey,
A careful examination of the record leads us to believe that while there has been fault on the part of both parties and each has some responsibility for the friction which developed, yet the libellant has established by a preponderance of the evidence the allegations that he was subjected to cruel and barbarous treatment at the hands of his wife and suffered a continuous and prolonged series of indignities to his person. While the report of the master is to be given fullest consideration, particularly as regards the credibility of witnesses, his findings and recommendations are advisory only (Fishman *522 v. Fishman,
The fact that the master did not cross-examine the witnesses is not, necessarily, error. If he could determine in his own mind the truth or falsity of those testifying before him when they were cross-examined by counsel, who adequately represented each of the litigating parties, without asking questions of his own, he has performed the duties of his office as was required of him by a rule of court which reads as follows: "It shall be the duty of the Master to cross-examine the witnesses closely to ascertain the truth and the whole truth concerning the ground or grounds of divorce". No request was made of him by the parties or their counsel to ask questions at the hearings, and unless he wished to clarify some points of the case in his mind or test the credibility of a witness, it was his choice to cross-examine or not.
Decree affirmed.