Coxe v. Coxe

HOFFMAN, Judge,

dissenting:

Appellant, plaintiff-husband in a divorce action in the court below, contends that the lower court erred when it dismissed appellant’s complaint despite the master’s recommendation that a divorce be granted.

Appellant filed a complaint in divorce a. v. m. on June 9, 1972, based on a claim of indignities.1 A master,2 appointed on October 4, 1972, took testimony on February *2376, February 22, and September 17, 1973. Although the hearing was extensive, neither party presented corroborative evidence; rather both appellant and appellee chose to rely on his and her own oral testimony. On March 4, 1975, the master filed his report in which he recommended that the court grant the divorce on the ground of indignities. Appellee filed exceptions to the report, first that the master’s conclusions concerning credibility were not supported by the record, and, second, that, even crediting appellant’s testimony, the record did not support a finding of indignities. On August 29, 1975, the lower court dismissed appellant’s complaint, based on appellee’s first exception.3 After a review of the record of the master’s hearing, the court found that appellant’s testimony was “replete with inherent improbabilities, inconsistencies, and contradictions.”

The lower court and both parties agree that the instant case turns on this Court’s holding in Gehris v. Gehris, 233 Pa.Super. 144, 334 A.2d 753 (1975). The lower court distinguished the facts of the instant case from those in Gehris.4 I believe that this case is con*238trolled by our decision in Gehris and that we must, therefore, reverse.

The Majority is correct in stating that “[i]t is well-settled that in divorce cases, the evidence must be considered de novo at every stage of review; and that review extends to questions of credibility. . . (At 1297). See also, Eifert v. Eifert, 219 Pa.Super. 373, 281 A.2d 657 (1971); Del Vecchio v. Del Vecchio, 169 Pa.Super. 617, 84 A.2d 261 (1951). However, we noted in Gehris that “[t]he obvious important exception to de novo review by a reviewing court is that great weight must be accorded to the findings of the court or master below if the issues of credibility are ones that are necessarily resolved by personal observations. For example, if the ultimate decision rests on a statement asserted by one party and denied by the other, where there is no corroborative evidence, demeanor on the stand is necessarily dispositive of the issue and is the kind of evidence that cannot effectively be reviewed by an appellate court.” 233 Pa.Super. at 148, 334 A.2d at 755. (Emphasis added). See also, Uhlinger v. Uhlinger, 169 Pa.Super. 574, 83 A.2d 423 (1951). In an effort to review such findings, an appellate court is remitted to speculation; therefore, traditionally, credibility has been entrusted to the factfinder who hears and observes the witnesses.

In Gehris, the appellant urged this Court to reverse findings of the lower court which had seen and heard the witnesses. In Dougherty v. Dougherty, 235 Pa.Super. 122, 127, 339 A.2d 81, 84 (1975), the appellant challenged the master’s findings as “ ‘one sided, prejudicial, and not based upon the evidence presented.’ ” The lower court had adopted the master’s recommendations that a divorce be granted. Procedurally, the instant case is different from Gehris and Dougherty only in that the lower court herein exercised de novo review, rejected the master’s findings and denied the divorce. The lower court was in the same position as an appellate court — it did *239not have an opportunity to observe the witnesses and should, therefore, have “accorded [great weight] to the findings of the . . . master below” because “the issues of credibility . . . [were] necessarily resolved by personal observations.” Dougherty v. Dougherty, supra, at 127, 339 A.2d at 84. Thus, although different on its facts, the instant case is legally indistinguishable from Dougherty and Gehris.

In the instant case, the master heard ample testimony; appellee directly contradicted appellant’s testimony. The master found that appellant was more credible than appellee : “Plaintiff was content to merely contradict many of his allegations in her case in chief. The plaintiff’s testimony was in the main forthright and unembellished, relatively specific, and delivered without hesitation or equivocation. It recounted some twenty years of marriage. When occasionally pressed by his counsel to remember details of incidents occurring ten or fifteen years earlier, on those occasions when he was unable to so recall, he frankly said so. When given an opportunity to embellish his recollection, he refrained from doing so. He answered the questions put to him without hesitation or equivocation. The Master having seen and heard plaintiff testify, is convinced that his testimony was credible and is of the weight and quality necessary to support a decree provided the acts of which the plaintiff complains are sufficient to constitute indignities to the person.

“Applying the same principles to the testimony of the defendant, however, does not lead the Master to a similar conclusion. Most of her denials and ‘contradictions’ were general in nature. Phrases as, ‘it isn’t true’ or ‘that never happened’ are spread throughout the record without further explanation or detail. In her responses upon cross-examination, the defendant was at times evasive and self-contradictory.” *240Further, despite appellee’s denial of some of appellant’s allegations, the master found as follows:

“(a) Throughout the course of the marriage, the Plaintiff worked at two occupations at the same time, in order to increase his level of income; notwithstanding the Plaintiff’s industry, the Defendant commencing shortly after the marriage ceremony and continuing throughout the course of cohabitation, both privately and in the presence of the parties’ friends, berated and belittled the Plaintiff concerning his income, compared him unfavorably with others with respect to his earning ability, and referred to the Plaintiff as a failure . . . ; such remarks were generally prefaced by the phrase, ‘you son of a bitch of a bastard, get out and make money’. . . .

“(b) In addition to such complaints, the Defendant on a daily basis throughout the course of cohabitation called the Plaintiff a ‘no good son of a bitch of a bastard’ and told him that he ‘never did anything right’. .

“(c) Commencing in 1955 and continuing until the summer of 1971, occasionally on a daily basis, the Defendant told the Plaintiff that his mother was a ‘no good troublesome bitch’. ... a ‘troublesome, meddlesome bitch’ . . ., or did otherwise demean and degrade the Plaintiff’s mother . . .; such phrases were used by the Defendant in the presence of the Plaintiff and his mother, and on one occasion, in the presence of a stranger and the parties’ neighbors . . .; the Defendant also told the Plaintiff, in the presence of the parties’ children, commencing in 1964 and continuing throughout the course of cohabitation, that his mother was a ‘noisy, meddlesome bitch’ and a ‘troublemaker’.

“(d) Commencing in 1964 and continuing until the parties’ separation in June, 1972, the Plaintiff was required to constantly plead with and cajole the Defendant to prepare coffee for the Plaintiff; notwithstanding such *241pleas, the Defendant generally refused to prepare coffee, telling the Plaintiff two or three times each week to ‘get your own damned coffee’. . . .

“(e) Commencing in 1960, and for a period of ten years thereafter, the Defendant frequently refused to prepare lunch for the Plaintiff in spite of his request, telling the Plaintiff that she would prepare lunch ‘when she was good and ready’, notwithstanding the Plaintiff’s schedule ... . ; by reason of the Defendant’s failure to prepare lunch for the Plaintiff, he was required to take lunch in restaurants. .

“(f) Commencing in 1953 and continuing until the parties’ separation in June, 1972, although the Plaintiff was able to return to the marital home twice each week for dinner, the Defendant generally refused to prepare meals more than once each month, preferring instead to serve the Plaintiff a ‘TV dinner’ or food remaining from prior meals, immediately returning to the television set . ; when the Plaintiff complained to his wife about the food, she said, ‘get home at a more reasonable hour. Why can’t you be like other men that punch a clock from eight to four and be here when dinner is served’? . . .

“(g) Commencing in 1953 and continuing until 1970 or 1971, six nights each week, although the Plaintiff retired at eleven o’clock p.m., the Defendant failed to join him in the marital bedroom, preferring instead to watch television until the early hours’ of the morning; as a result of such conduct, the parties’ sexual contact was limited to the point where the Plaintiff felt something might be wrong with himself . . . ; for a period of three months in 1967, the Defendant completely refused to engage in sexual intercourse with the Plaintiff . ; and the Defendant’s conduct caused the Plaintiff to feel ‘terrible’. .

“(h) Commencing in 1957 and continuing until 1971, the Defendant, five days each week, failed to launder the *242Plaintiff’s clothing, and as a result the Plaintiff had no clean socks or pressed shirts . . . ; when the Plaintiff complained, the Defendant always responded, ‘you son of a bitch, do them yourself’ . . .; on occasion, by reason of the Defendant’s omissions, the Plaintiff was required to personally launder his clothes. .

“(i) Commencing in 1963, the Defendant, three or four times, each week, told the Plaintiff she no longer loved him, and could not understand why she had married him . . . ; once or twice weekly, during the same period, the Defendant told the Plaintiff she hated him and hated the ground he walked on . . . , and that she didn’t care if the Plaintiff ever returned from work and in fact hoped he did not. .

“(j) Although the parties and their children took yearly vacations for a period of eight years, and in addition, the children attended various camps, the Defendant, commencing in 1963 and continuing until the separation in June, 1972, continually referred to the Plaintiff as an inadequate husband and father and falsely accused him of failing to take the Defendant and the children on such vacations. .

“(k) Commencing in 1959 or 1960, and continuing throughout the course of cohabitation, when the parties disagreed upon financial matters or methods of disciplining the parties’ children, the Defendant generally became enraged, and at least once each month threw pots, pans, dishes, chairs and other articles at the Plaintiff . ; on one occasion, the Defendant struck the Plaintiff in the eye, causing it to bleed . . . ; and during such rages, the Defendant frequently threw edible food away and on occasion broke or destroyed other property. .

“(i) Commencing in 1962 and continuing once or twice weekly until the parties’ separation in June, 1972, the Defendant told the Plaintiff that his business associates and other persons visiting the Plaintiff’s office or *243calling the Plaintiff on the telephone located in the parties’ home were ‘bums’, ‘tramps’, and ‘scum’.

“(m) Commencing in 1966, and continuing on an almost daily basis until the parties’ separation in June, 1972, the Defendant, without provocation, humiliated the Plaintiff by referring to him as a son of a bitch, a bastard, a son of a bitch of a bastard, and a bum . . . ; such language was frequently used by the Defendant in the presence of the parties’ children ... on one occasion, the Defendant called the Plaintiff a ‘fucking bastard’ in the presence of the parties’ eight year old daughter . . . ; usually, when the Plaintiff asked his wife to refrain from using such language, she advised him that [she] would use any damn word she wanted”.

“(n) About twice each week, from 1958 until 1970, the Plaintiff who worked 65 to 70 hours weekly, was able to return to the marital home on two afternoons each week in order to take a nap; although aware that he was endeavoring to sleep, the Defendant created or permitted noise in many forms to disturb such sleep, as operating the vacuum cleaner and permitting the children to play next to the bedroom; although the Plaintiff continually complained to the Defendant, she failed to take any steps to alleviate the condition. . . .

“(o) During arguments occurring in the middle of the night three or four times weekly during the last two years of cohabitation, the Defendant’s loud and raucous voice caused the parties’ daughter who occupied the adjoining bedroom, to awaken and pound on the wall . ; when the Plaintiff asked the Defendant to stop such conduct she became even louder. .

“(p) Commencing in 1967 and continuing once or twice weekly until the parties’ separation in June, 1972, the Defendant consumed alcoholic beverages until she became inebriated . . . ; when she drank, the Defendant became more raucous and loud, arguing with the *244Plaintiff on occasion the entire night . . . , and cursing and swearing at the Plaintiff; frequently the Plaintiff found sherry bottles or unconsumed glasses of sherry hidden in the refrigerator and behind chairs . ; when the [plaintiff] finally removed all alcoholic beverages from the house in order to curtail the Defendant’s drinking, she began to use money provided by the Plaintiff for groceries to purchase intoxicants.

“(q) Commencing in the spring of 1968, nearly every day, the Defendant falsely accused the Plaintiff of engaging in illicit relationships with other women . ; on one occasion, in 1972, the Defendant awakened the Plaintiff from his sleep and said, ‘Get out of there, you bastard. Go out with your girl friend’.

“(r) In 1969 while in Bermuda with the Plaintiff and many of his business associates, the Defendant became inebriated, refused to leave the bar, could barely stand and refused to board the bus, thereby embarrassing and humiliating the Plaintiff by such conduct. .

“(s) On June 1, 1972, the Defendant, while inebriated, called the Plaintiff a no-good impotent bastard, telling him to take his ‘things’ and leave the marital home with his girl friend. .

“(t) In August, 1970, in the mountains of Pennsylvania, the Defendant again became inebriated, whereupon the Plaintiff went to a nearby hotel joining friends at a table; the Plaintiff danced once with one of the women at the table whereupon the Defendant approached the table and instigated a loud argument with the Plaintiff; as a result of the Defendant’s behavior, the Plaintiff to his humiliation and embarrassment was ordered from the premises. .

“(u) On May 25, 1972, the Plaintiff endeavored to take his daughter to a magistrates’ dinner; an argument ensued between the Plaintiff and the Defendant, where*245upon the Defendant, in the presence of the parties’ daughter, called the Plaintiff a ‘no-good son of a bitch of a bastard’ and told him she would never again permit the Plaintiff to take his daughter anywhere. .

“(v) Throughout the course of the marriage, the Plaintiff provided his family with a proper home, sufficient income, conducted himself as a proper husband and father, and gave the Defendant no cause or justification for the behavior she exhibited toward him; as a result of such conduct on the part of the Defendant, the Plaintiff became and remained nervous and upset and was frequently unable to swallow food, consulted with several physicians and was directed to take various tranquilizers to ease his tensions . . . ; as a further result of his wife’s conduct, the Plaintiff’s business suffered, causing his company to speak with him and express concern about his reduced production of business. . . . ”

1 find no inherent improbability, internal inconsistency, or contradictions sufficient to substitute our judgment, or for the lower court to have substituted its judgment, for that of the master.5 Thus, we are faced with the identical problem resolved in Gehris: “Faced merely with the record in which the wife asserts that her refus*246al was not intended to embarrass the husband and the husband states that her actions were so intended, this Court has little basis to decide the question. The Court, however, is not merely faced with two contradictory statements. The Court has the benefit of the opinion of the judge who heard the testimony that indicates that he believed the husband’s statement.” 233 Pa.Super. at 149, 334 A.2d at 755.

Therefore, I would reverse and reinstate appellant’s complaint in divorce.

. Act of May 2, 1929, P.L. 1237, § 1 et seq.; 23 P.S. § 10(f).

. The master was Leonard Sugerman, Esquire, now Judge Sugerman, elevated to the bench during the course of the proceedings, but who upon agreement of the parties continued as the master.

. As to the second contention that appellant made out a case of indignities, the lower court stated that “[i]f the record would support the Master’s determination that the plaintiff was completely credible there’s no question that the record would support a divorce on the grounds of indignities.” As will appear obvious from a recitation of the master’s findings, infra, the lower court was correct in so holding.

. The lower court attempted to distinguish Gehris as follows: “While Gehris, supra, is nearly on point, the same result in the case at bar must not necessarily follow. In Gehris, the finding of the lower court was affirmed because, inter alia, ‘ . the husband’s contentions concerning the wife’s constant complaints about living conditions and the husband’s lack of earning capacity were uncontested.’ However, in the case at bar, all of the husband’s contentions have been contested and the Master has not merely chosen to believe the husband’s version of the story as the decision would seem to indicate was done in Gehris, but rather the Master has chosen to rely on a few specific items of testimony which he claims illustrates that demeanor which would or would not support the credibility of the parties and which brings us to the crux of the problem.” As will become apparent from my discussion, infra, I believe that Gehris is indistinguishable from the instant case.

. Although citing Gehris with apparent approval, the Majority ignores the explicit mandate of that case. It engages in precisely the kind of selective reading of the record which was rejected in Gehris and which requires substitution of our judgment for that of the original factfinder on matters outside the scope of our expertise. For example, the lower court and the Majority “accepted the wife’s version of the coffee problem” because “[h]er denial that she ever refused to make him lunch or dinner is at least as credible as his testimony to the contrary.” (At 298; emphasis added). If the Majority’s test were applied, a party would be hard-pressed ever to win a lawsuit. In the vast majority of cases, an appellate court, if free to search the record at will, could find opposing statements, neither of which was inherently incredible. In all of those cases, according to the Majority, the moving party could not win. That, however, is why appellate courts must entrust factfinding to the master or the lower court, because, although we cannot determine from the record who is believable, the factfinder can use common sense and observation to sort out the truth.