Berkheiser v. Berkheiser

49 Pa. D. & C.2d 403, 1970 Pa. Dist. & Cnty. Dec. LEXIS 416

• Court: Pennsylvania Court of Common Pleas, Lycoming County
• Decided: April 8, 1970
• Docket: no. 851
• Status: Published

Opinion

PER CURIAM,

This is an action in divorce a.v.m. brought by Nancy E. Berkheiser, plaintiff-wife, against Raymond L. Berkheiser defendant-husband, a member of the armed services of the United States.

The matter was referred to a master who recommends that a decree in divorce be entered as prayed for. Exceptions were filed to the master’s report by the attorney who was appointed to represent defendant in the action. The exceptions set forth:

“1. The learned Master erred in his discussion, Paragraph VI, B. Military Service, in concluding that the Defendant should not be afforded the protection of the Soldiers’ and Sailors’ Civil Relief Act, and further that the Plaintiff should be granted the divorce she seeks.

“2. The learned Master erred in concluding that the Defendant was not prevented from, or even hindered in, defending this action, since the Defendant was confined to the Lycoming County Prison in default of bail.

“3. The learned Master erred in reaching conclusion of law No. 2, reading as follows, That the Defendant, Raymond L. Berkheiser, although in the Armed Forces of the United States of America, is not entitled to the protection of the Soldiers’ and Sailors’ Civil Relief Act in this civil action in divorce, a.v.m.’

“4. The learned Master erred in not recommending that the Complaint be dismissed.”

The Soldiers’ and Sailors’ Civil Relief Act of October 17, 1940, c. 888, sec. 1, 54 Stat. 1178, 50 U. S. C. A. §501 et seq., is applicable to divorce actions but is not a blanket moratorium on all divorces against service men and may not be used as a means of legal obstruction on the part of defendant. See Lawther v. Lawther, 53 D. & C. 280; 2 Freedman Law of Marriage and Divorce in Pennsylvania, §506, page 1049.

We have made an independent study of the whole record and the law pertaining thereto, and find that the master was correct in finding conclusion of law no. 2, “that the defendant, Raymond L. Berkheiser, although in the Armed Forces of the United States of America, is not entitled to the protection of the Soldiers’ and Sailors’ Civil Relief Act in this civil action in divorce a.v.m.”

The master having entered into a full discussion of the law as it applies to the facts in the instant case, we find that it is not necessary to discuss it further and we make the following

ORDER

And now, to wit, April 8, 1970, on consideration of the report of Don M. Larrabee, 2nd, master in the above-captioned case, and after due and careful consideration of the exceptions filed by Robert J. Sarno, attorney for defendant, the said report is approved and the findings of fact, discussion and conclusions of law are adopted as the findings of fact and conclusions of the court, and the exceptions are overruled and dismissed. The report is confirmed absolutely.