Callander v. Callander , 82 Pa. Super. 14 ( 1923 )

Argued May 1, 1923. The libel in this case averred that the libellant was entitled to a divorce upon two grounds: (1) cruel and barbarous treatment and indignities to the person and (2) the adultery of the respondent. The master found that the evidence was not sufficient to establish the right of the libellant to a divorce upon the first ground alleged in the libel, and this finding has not been seriously challenged either here or in the court below. The master found that the respondent had been guilty of adultery with Dr. B.H. Jones and recommended that a decree of divorce be granted upon that ground. The respondent filed exceptions to this finding of the master, which exceptions the court below, in an opinion carefully reviewing the testimony, sustained and entered a decree denying the prayer of the libel and refusing to grant a divorce; in effect dismissing the libel. The respondent had in her answer averred that, even if she had been guilty of adultery the libellant was not entitled to a divorce for the reason that he had been guilty of a like offense, but there was no testimony to support this allegation of the answer. The only question argued upon this appeal was whether the evidence was such as to require a finding that the respondent had been guilty of adultery and the entry of a decree of divorce in accordance with that finding.

It is well established in Pennsylvania that divorces are not to be granted save for the very cause alleged in the libel in that proceeding and clearly established by evidence. The evidence may, it is true, be entirely circumstantial, but the circumstances must be such as to warrant the finding of a fact. It is not sufficient that the circumstances merely afford ground for reasonable suspicion, which might properly lead to further investigation. There can be no profit in the present case in reviewing the details of the testimony. It may be conceded that the testimony is such as to give ground for belief that if proper investigation had been made at the time the events referred to occurred facts might have been disclosed which would have established the misconduct of the respondent. But the testimony presented established nothing more than reasonable grounds for suspicion of such misconduct; it was inadequate, under the authority of our cases, to warrant the entry of a decree of divorce upon the ground of the adultery of the respondent.

The decree is affirmed.