Morfessis v. Morfessis

PER CURIAM: Mrs. Morfessis appeals from the dismissal of her suit for limited divorce. Since the lower court found that she had failed to establish a prima facie case of cruelty, it dismissed her complaint 1 2without considering the merits of appellee’s defense of desertion. The findings of the District Court, sitting without a jury, “shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.” 2 As the trier of the facts, it is in the best position to consider the demean- or of the witnesses and to weigh their testimony. 3 In view of the contradictory nature of appellant’s testimony as to material facts, we do not think the trial court’s finding that appellant had not made out a prima facie case was “clearly erroneous.” Affirmed. 1 . Rule 41 (b), Federal Rules of Civil Procedure, 28 U.S.C.A. 2 .