Bonawitz v. Bonawitz

PRICE, Judge:

This is an appeal from an order of the court below sustaining exceptions to a master’s report and dismissing an action for divorce a vinculo matrimonii. After careful review of the record before us, we affirm the order of the lower court.

Russel and Marjorie Bonawitz were married on September 26, 1954, in Harrisburg. Two children, presently *26020 and 17 years of age, were born to this marriage. On February 4, 1974, the appellant filed a complaint in divorce, alleging indignities to the person.1 After conducting a hearing,2 a master recommended that a decree in divorce be granted.

We must initially note that it is our duty, on appeal, to make an independent examination of the record and to determine whether a legal cause of action for divorce exists. Barr v. Barr, 232 Pa.Super. 9, 331 A.2d 774 (1974); Arcure v. Arcure, 219 Pa.Super. 415, 281 A.2d 694 (1971). Moreover, we are acutely aware that where the issue is one of credibility and the master is the one who heard and observed the witnesses, his findings of fact and recommendation should be given the fullest consideration. Gehris v. Gehris, 233 Pa.Super. 144, 334 A.2d 753 (1975); Sells v. Sells, 228 Pa.Super. 331, 323 A.2d 20 (1974). However, our review, even in this light, does not lead us to the same conclusion as the master and we must reject his finding that the credibility of1 the appellant would sustain the granting of this divorce.

It is axiomatic that a husband seeking a divorce on the ground of indignities must clearly and satisfactorily prove not only that his wife’s course of conduct rendered his condition intolerable and his life burdensome, but also that he was the innocent and injured spouse. E. g., Nichols v. Nichols, 207 Pa.Super. 220, 217 A.2d 807 (1966); Staffieri v. Staffieri, 197 Pa.Super. 443, 179 A. 2d 663 (1962). The appellant complained that the appellee had, among other things, scratched his neck with her fingernails, thrown objects at him, cursed him and his relatives, driven a scissors beneath one of his fingernails, destroyed part of his property, threatened to kill him, and unjustly accused him of infidelity. There is no ques*261tion that these actions, if clearly proven, “ . . . consist of such a course of conduct as is humiliating, degrading and inconsistent with the position and relation as a spouse,” McKrell v. McKrell, 352 Pa. 173, 180, 42 A.2d 609, 612 (1945); see Steinke v. Steinke, 238 Pa.Super. 74, 357 A.2d 674 (1975) (Concurring Opinion by Spaeth, J.), and would therefore support a decree in divorce based on indignities. However, we agree with the lower court that the appellant did not meet his burden of proof.

Although the appellant’s testimony limns a perverse pattern of marital misconduct, it was denied or qualified by the appellee and her son, and therefore presents an uncertain balance of evidence. The appellee, corroborated by her son, testified that as between the parties it was the appellant, rather than she, who had directed physical force and vile language against the other. The appellee admitted that she had accused the appellant of infidelity. We recognize that “continuous unfounded accusations of infidelity, when accompanied by other degrading or humiliating conduct, are sufficient to make out a case of indignities to the person.” Yohey v. Yohey, 205 Pa.Super. 329, 334, 208 A.2d 902, 904-05 (1965). Here, however, the appellee claims that her accusations were justified, and therefore do not constitute indignities. We agree with this contention.

The appellee and her son testified that prior to 1969, when the parties separated,3 the appellant would not return home until 3:00 or 4:00 in the morning although he finished work at 11:00 p. m. He also spent several weekends away from home. On occasion, prior to 1969, he was seen accompanied by, and “holding hands” with, one Elizabeth Russell. Often, the appel*262lant’s car was parked in front of Mrs. Russell’s house. Significantly, both the appellant and Mrs. Russell admitted that they had begun to associate socially subsequent to 1969. Although Mrs. Russell cryptically described their relationship as involving “suppers and stuff,” the appellant acknowledged that he and Mrs. Russell had travelled together to Canada. As we have previously stated: “ ‘Evidence of the conduct of the parties after separation is relevant for the purpose of shedding light upon their behavior prior to the separation.’ Such testimony, therefore, might certainly strengthen the proof of the appellant as to good grounds for her belief of his infidelity.” Jones v. Jones, 189 Pa.Super. 461, 465, 151 A. 2d 643, 645 (1959), quoting, in part, Boyer v. Boyer, 183 Pa.Super. 260, 267, 130 A.2d 265, 269 (1957). This is particularly true where the questioned relationship involves the same person before and after separation. Kramer v. Kramer, 194 Pa.Super. 538, 168 A.2d 624 (1961). Notwithstanding the appellant’s contentions to the contrary, we find that he had given the appellee just reason to believe that he was involved illicitly with another woman. The appellee’s accusations may not therefore be considered as indignities to the appellant. See, e. g., Yohey v. Yohey, supra; Thoms v. Thoms, 199 Pa.Super. 369, 186 A.2d 42 (1962). The appellee denied all other alleged indignities.

In Friess v. Friess, 156 Pa.Super. 38, 39 A.2d 151 (1944), we were presented with a situation greatly similar to the case at bar. In affirming a rejection by the lower court of a master’s recommendation to grant a divorce on the ground of indignities, we stated that:

“However damaging the libellant’s testimony touching this period, since it is denied by the respondent and her daughter, it creates only a doubtful balance of evidence. ‘A decree may be supported by the testimony of the complainant alone, but if this testimony be contradicted and shaken by the respondent and there be *263no convincing circumstances warranting a disregard of the contradictory evidence, a case has not been made out.’ ” Id. at 43, 39 A.2d at 153, quoting, inter alia, Rommel v. Rommel, 87 Pa.Super. 511, 513 (1926).

A divorce may not be based upon a doubtful balance of the evidence. Walper v. Walper, 198 Pa.Super. 409, 182 A.2d 209 (1962). Here, the appellant’s testimony was corroborated only to a slight degree by one witness and was contradicted by the appellee and her witness. We agree, therefore with the court below that the appellant failed to carry his burden of proof in establishing indignities as a ground for divorce.

Furthermore, we find the lower court to be correct in its conclusion that the appellant has not shown himself to be an innocent and injured spouse, as required by statute. We have held that a party should not be denied a divorce merely because he or she is not wholly without fault. See Sells v. Sells, supra, and cases cited therein. In the present case, however, the evidence shows that both parties have equally contributed to their marital discord. Neither party, therefore, may claim to be an innocent or injured spouse.

We affirm the order of the lower court.

SPAETH, J., files a concurring opinion. HOFFMAN, J., files a dissenting opinion in which WATKINS, President Judge, joins.

. Act of May 2, 1929, P.L. 1237, § 10 as amended by the Act of March 19, 1943, P.L. 21, § 1 (23 P.S. § 10(f)).

. The master’s hearing consisted of three sessions which were held within a two month period.

. There is some dispute as to whether the parties actually separated in 1969 or at some later date. The master concluded “the true final separation” occurred in February, 1969. We agree with the lower court that the exact date of separation has no relevance to a determination of the legal questions presented in this case.