Riley v. Riley

CERCONE, Judge:

In this appeal appellant-husband, Robert J. Riley, contends that the court below erred in dismissing his complaint in divorce. On May 8, 1973, appellant filed a complaint alleging that his wife, Helen W. Riley, had offered such indignities to his person as to warrant a divorce a. v. m.1 Although appellee was properly served she neither filed an answer nor entered an appearance. However, at the master’s hearing on September 6, 1974, appellee appeared and contested the action, but without the benefit of counsel. The master found in favor of appellant and recommended that the divorce be granted. The lower court, upon reviewing the testimony, overruled the findings of the master and dismissed appellant’s complaint. From this dismissal the husband has appealed.

The parties were married in Hanover, Pennsylvania on June 25, 1949. Eleven children were born of this union, *268six of whom are under the age of eighteen and reside at home in the custody of appellee-wife. At the time of the master’s hearing, appellant was 47 years of age and his wife 48.

Appellant testified that in the fall of 1972 the alleged indignities of his wife became so intolerable that he removed himself from their marital abode. Specifically, appellant testified that the following conduct of his wife compels the dissolution of their marriage: her false and constant accusations of -infidelity, her approbrius name-calling such as “dirt” and “scum,” her frequent neglect to prepare appellant’s meals, her rare completion of the family laundry chores, her lack of affection and employment of the silent treatment, and her interruptions of his work and arguments with him in front of his fellow workers. He further testified that he awakened one night and found his wife pointing a firearm at his head. In addition, appellant stated that upon returning from a convention in Georgia he found his bedroom in such a state of disarray that he slept in the family camper. Not long thereafter, he left the family residence at the alleged request of his wife and daughter.

Appellee presented another picture. She admitted that on occasions she called appellant names. She further acknowledged that there were times when she did not have meals prepared, but that this was usually because she was occupied with the six children and her other considerable household duties. She conceded that in the volatile period preceding their estrangement she and her husband would not speak to each other for extensive lengths of time. She explained, however, that this was due principally to the fact that appellant was rarely at home and viewed his family obligation as confined simply to putting food on the table. If these were indeed the circumstances, it is hardly surprising to find a want of affection in the marriage. Nor is it difficult to understand why the family laundry was never totally finished, considering the size of the family. Appellee explained that *269the bedroom was torn up because it was in the process of being painted. She denied ever having told appellant to leave, and stated that when appellant informed her he was going to leave, she replied that if that was what he desired, then he should leave. She categorically denied the incident with the firearm and speculated that her husband may have imagined the episode since he was drinking that evening. Appellee acknowledged the fact that she often accused appellant of unfaithfulness, but maintained that her suspicions were reasonably justified.

Appellant testified that since he left his family his disposition has improved and things have progressed so well at his primary job that he has received a raise. Appellant’s witness, a former co-worker, confirmed the change in appellant’s nature after the separation and, additionally, verified that appellee had on occasion interrupted appellant at work and engaged him in domestic arguments.

Appellant argues that the court below erred in two instances: (1) in concluding that the evidence was insufficient to sustain a claim of indignities, and (2) in further holding that he was not an innocent and injured spouse. Upon review, we find no error.

It is firmly established that it is our duty to make a plenary review of the record and independently determine whether the plaintiff has established sufficient grounds for a divorce. Dougherty v. Dougherty, 235 Pa.Super. 122, 339 A.2d 81 (1975); Sells v. Sells, 228 Pa.Super. 331, 323 A.2d 20 (1974); Griffie v. Griffie, 220 Pa.Super. 461, 289 A.2d 198 (1972). Furthermore, as we have previously observed:

“It is true that the report of the master is entitled to great consideration in that he has heard and seen the witnesses and we have so held on numerous occasions, Fiorilli v. Fiorilli, 202 Pa.Super. 529, 198 A.2d 369 (1964); and that it should not be lightly disregarded, but however, it is advisory only and the reviewing *270court is not bound by it and it does not come to the Court with any preponderate weight or authority which must be overcome. The reviewing Court must consider the evidence de novo, its weight and the credibility of the witnesses. The master’s report is not controlling either on the lower court or upon the appellate Court. Rankin v. Rankin, 181 Pa.Super. 414, 124 A.2d 639 (1956).
“We must, therefore, examine this record de novo, consider carefully the master’s report and at the same time give great weight to the opinion of the court below wherein this evidence was already considered de novo and the credibility of the witnesses carefully examined in view of the master’s report.” Pasternak v. Pasternak, 204 Pa.Super. 339, 341, 204 A.2d 290, 291 (1964).

When attempting to determine whether a claim of indignities has been established, it is important to recognize that “[n]o general rule can be formulated as to what constitutes indignities in a particular case; such matters depend upon all the circumstances of a particular case . . . Margolis v. Margolis, 201 Pa.Super. 129, 133, 192 A.2d 228, 230 (1963). See also Sells v. Sells, supra. It has frequently been held, however, that “ [i] ndignities may consist of vulgarity, unmerited reproach, habitual contumely, intentional incivility, manifest disdain, abusive language, malignant ridicule, and every other plain manifestation of settled hate and estrangement.” Martin v. Martin, 154 Pa.Super. 313, 317, 35 A.2d 546, 548 (1943). See also McKrell v. McKrell, 352 Pa. 173, 42 A.2d 609 (1945); Gehris v. Gehris, 233 Pa.Super. 144, 334 A.2d 753 (1975); Sells v. Sells, supra; Margolis v. Margolis, supra. Furthermore, “[t]he very essence of the offense [of indignities] is a course of conduct or treatment which, by its continuity, renders the condition of the innocent party intolerable and his or her life burdensome.” 2 Freedman, Law of Marriage *271and Divorce in Pennsylvania § 308 (2d Ed. 1957). See also Phipps v. Phipps, 368 Pa. 291, 81 A.2d 523 (1951), cert. denied 342 U.S. 942, 72 S.Ct. 554, 96 L.Ed. 701.

More specifically, it is well settled that continuous and false accusations of infidelity accompanied by other humiliating or degrading behavior will sustain a claim of indignities. Yohey v. Yohey, 205 Pa.Super. 329, 208 A.2d 902 (1965); Politylo v. Politylo, 173 Pa.Super. 223, 95 A.2d 241 (1953); Anderson v. Anderson, 172 Pa.Super. 527, 94 A.2d 104 (1953).

Appellee does not deny that for several years prior to the 1972 separation she frequently accused appellant of infidelity. Appellee maintains, however, that her accusations were reasonably founded upon her husband’s suspicious conduct. In Thornton v. Thornton, 168 Pa.Super. 391, 77 A.2d 691 (1951), we held that accusations of infidelity will not constitute indignities, even though the accusations are false, if they were made with reasonable grounds for believing them to be true. In short, where suspicions have been reasonably aroused, a claim of indignities on the basis of false accusations of infidelity will not prevail. Coon v. Coon, 173 Pa.Super. 60, 95 A.2d 344 (1953). Appellee’s suspicions were nurtured by the fact that appellant rarely returned home until the early hours of the morning. Appellant testified that his later hours were necessitated by his second job.2 It appears, however, that appellant was in the habit of keeping late hours regardless of whether or not he was actually working at night. In this connection, appellee and her 22 year-old daughter testified that if appellant was ever needed in an emergency he usually could be located at the “Vets, the Eagles, or Hankey’s.” Furthermore, appellant never rebutted appellee’s testimony that she found lipstick on his face. Nor did appellant contra-*272diet appellee’s testimony that, subsequent to their estrangement, appellant returned home3 to make a household repair and, in the words of appellee, stated: “Why don’t you do like I do. Why don’t you go out with whomever you please. Do like I did, give up the church, you don’t need to go to church, give up the church and you can go with whom you please. . . . ” Appellee further testified that her husband also advised her at this time that he had struck up a meretricious relationship with his best friend’s wife, which appellant denied. Although this is not direct evidence that appellant was involved in illicit affairs prior to the separation, it certainly is “relevant to shed light on prior existing conditions.” Spray v. Spray, 185 Pa.Super. 407, 412, 138 A.2d 189, 191 (1958). In the final analysis then, we are of the opinion that although none of the aforementioned incidents taken alone would justify accusations of infidelity, when collectively viewed these facts reasonably support appellee’s charges. Accordingly, we conclude that appellant failed to establish his claim of indignities by clear and satisfactory evidence.4 See Regan v. Regan, 227 Pa.Super. 552, 322 A.2d 711 (1972).

Order affirmed.

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

. Divorce Law, Act of May 2, 1929, P.L. 1237, § 10, as amended. Act of March 19, 1943, P.L. 21, § 1; 23 P.S. § 10.

. Appellant was employed full time as a mechanic and moonlighted at sundry jobs in the evening.

. Appellee also testified that on this occasion appellant engaged in marital relations with her. This fact alone does not preclude appellant from obtaining a divorce, but it belies his position that the conduct of his wife amounted to such indignities that his condition was intolerable. See Klimkosky v. Klimkosky, 167 Pa.Super. 116, 74 A.2d 497 (1950).

. Since we have concluded that the evidence was inadequate to support a complaint of indignities it is, therefore, unnecessary to address appellant’s relation contention that the lower court erred in finding that he was neither an innocent nor injured spouse.