Cogar v. Cogar

In this case, the master has recommended that a divorce be granted on the grounds of indignities but denied on the grounds of cruel and barbarous treatment. The testimony amply supports the master’s recommendation concerning the merits of the case.

However, the complaint alleges that defendant “has never been a Pennsylvania resident”. At the hearing before the master, plaintiff testified that, in fact, defendant did reside with plaintiff in Union Township, Adams County, Pa., from May 19, 1962, until June 14, 1966. Plaintiff has made no effort since the hearing to amend the complaint to conform with the facts. It is axiomatic that the averments in the complaint must be supported by the evidence. If there is a variance, the complaint must be amended to conform with the proof.

The law does not look with favor upon the filing of amendments nunc pro tunc, but there is authority for amendments in that manner if the amendments are to cure formal defects only. See Oyer v. Oyer, 4 D. & C. 2d 758 (1955).

Order of Court

And now, May 9, 1968, the recommendation of the master in the above case is accepted and a decree in divorce will be entered upon the filing by plaintiff of an amended complaint to comply with the proof offered at the hearing before the master. Leave for the filing of an amended complaint is hereby granted.