Riley v. Riley

HOFFMAN, Judge,

dissenting:

On October 11, 1974, a master recommended that the court grant a divorce a. v. m. in favor of appellant, *273plaintiff-husband. On December 5, 1974, the lower court found that appellant presented insufficient evidence of “indignities”,1 and dismissed appellant’s complaint. Appellant contends that the lower court erred in so holding.

The parties separated in 1972, when appellant moved out of their rented farmhouse in Fairfield, Adams County. On May 8, 1973, he filed his complaint in divorce. A master was subsequently appointed and a hearing was held on September 6, 1974. The master filed a report on October 11, 1974, in which he recommended that the court grant a divorce a. v. m. However, on December 5, 1974, the lower court entered an order denying the divorce and dismissing the appellant’s complaint. This appeal followed.

The following facts were developed at the master’s hearing: Appellant and appellee were married in 1949. During the marriage, the couple had eleven children, six of whom were minors and still resided with appellee. The appellant is an auto mechanic who held two jobs to support his family during much of the marriage. The master made the following findings:

“15. Defendant has repeatedly made false accusations and charges of adultery so repeatedly made as to constitute a course of treatment.

“16. Defendant has made false and unjustified charges that the Plaintiff was infected with venereal disease.

“17. Defendant has verbally vituperated the Plaintiff by her calling the Plaintiff ‘dirt’, ‘skum’, ‘rat’, ‘no good’, and by her continued verbal condemnation of the Plaintiff to relatives of the Plaintiff and the Defendant and in front of the children of both the Plaintiff and the Defendant.

“18. There were extensive periods of time when the Defendant would not speak to the Plaintiff.”

*274As summed up in the lower court’s opinion:

“The plaintiff’s complaints were that his wife called him such names as ‘dirt,’, ‘scum,’ and ‘rat’; that she seldom made breakfast for him; that two or three times a week his supper was not ready; that his wife gave him the ‘silent treatment’; that his wife was not a satisfactory housekeeper; that his wife withheld sexual privileges from her husband; that he awoke one night to find his wife pointing a gun at his head; and that his wife frequently accused him of unfaithfulness, sometimes in the presence of others. He said the condition was intolerable and when he returned from a convention in 1972 and found the bedroom all torn up, he slept in a camper. Shortly thereafter, he said his wife and daughter told him to leave and he did.”

The lower court found that appellant had produced insufficient evidence to prove indignities or to prove that appellant was the innocent and injured spouse. The court analyzed the facts as follows: “Certainly it is true that the names the wife admitted calling her husband were not complimentary, but this Court has heard far worse in divorce cases. Significantly, there was nothing in the testimony which demonstrated vulgarity on the part of the defendant, there was no malignant ridicule and no humiliating treatment that we can observe, except for the arguments which the plaintiff’s witness says he observed on occasion, although he couldn’t remember any names that were called ‘or anything.’ As for ‘hatred,’ it was the plaintiff who said he ‘hated’ to go home. There is nothing in the plaintiff’s testimony to indicate that it was any great pain or hardship for him to leave the family. Only his wife complained of her ‘hurt’ and the ‘hurt’ to her children .

“As we perceive the situation here, the plaintiff has fathered 11 children, five [sic] of whom he now expects his wife to maintain. He says he’s feeling much better now and one can hardly doubt that he does feel much *275better. He does not have the day-to-day responsibility for raising the five children who remain at home on the assumption that his responsibility is discharged by his ‘generous’ financial contribution to the support of the family. Notwithstanding current trends, which are very much to the contrary, somewhere, somehow, married persons must be held to the responsibilities and commitments they assumed and made to one another in the dim distant past when they married one another for ‘better or worse.’ ”

Section 10 of the Divorce Law2 provides that “ . . .it shall be lawful for the innocent and injured spouse to obtain a divorce from the bond of matrimony, whenever it shall be judged, in the manner hereinafter provided, that the other spouse: .

“(f) Shall have offered such indignities to the person of the injured and innocent spouse, as to render his or her condition intolerable and life burdensome . . . .” As pointed out by Judge SPAETH, “ . . . the Pennsylvania Supreme Court in its decisions defining indignities has never stated that either hate or estrangement, much less both, are central to a charge of indignities. Instead, echoing the statute, the Supreme Court has held that “ ‘[t]he essential feature of the offense of indignities to the person is that it must consist of a course of conduct or continued treatment which renders the condition of the innocent party intolerable and his or her life burdensome. . . . ’ Phipps v. Phipps, 368 Pa. 291, 295, 81 A.2d 523, 525 (1951), cert. den. 342 U.S. 942, 72 S.Ct. 554, 96 L.Ed. 701 (Emphasis supplied.)” Steinke v. Steinke, 238 Pa.Super. 74, 86, 357 A.2d 674, 680 (1975) (concurring opinion by Spaeth, J.). The concept of indignities lends itself poorly to precise definition. *276May v. May, 62 Pa. 206 (1869),3 but generally, “[w]hat is meant by such indignities is left undefined in the law, and depends largely upon the circumstances of each case; they must consist of such a course of conduct as is humiliating, degrading and inconsistent with the position and relations as a spouse.” McKrell v. McKrell, 352 Pa. 173, 180, 42 A.2d 609, 612 (1945). Further, as pointed out in Dougherty v. Dougherty, 235 Pa.Super. 122, 131, 339 A. 2d 81, 86 (1975), we must view all acts complained of collectively to determine the sufficiency of a party’s allegations.

Although we must exercise de novo review of the record, we must accord great weight to findings of the master in matters necessarily resolved by personal observations. See Dougherty v. Dougherty, supra; Gehris v. Gehris, 233 Pa.Super. 144, 334 A.2d 753 (1975); DelVecchio v. DelVecchio, 169 Pa.Super. 617, 84 A.2d 261 (1951). Thus, based on the master’s findings, the issue of sufficiency is whether appellee’s repeated false accusations of adultery, her unjustified charges that appellant suffered from venereal disease, her name-calling and verbal condemnation in front of friends and family, and long periods of time during which appellee refused to speak to appellant amounted to indignities. I have no difficulty in finding that appellee’s actions constituted indignities “ . . . [indignities] may consist of vulgarity, unmerited reproach, habitual contumely, studied neglect, intentional incivility, manifest disdain, abusive language, malignant ridicule, . . . .” Breene v. Breene, 76 Pa.Super. 568, 572 (1921). See also, Steinke v. Steinke, supra; II Freedman, Law of Marriage and Divorce in Pennsylvania, § 306 (2d Ed. 1957).

*277In addition, the lower court apparently did not believe that appellant was an innocent and injured spouse. The only support for its position was that “ . . .it appears that [appellee] weathered the storms early in the marriage with respect to outrageous conditions on her husband’s part and that more recently it is the husband who has been called upon to accept a situation which could be described at best as something less than a satisfactory marriage.” As indicated by the lower court, appellant’s outrageous conduct occurred several years prior to the parties’ separation. Had appellee sought a divorce instead of appellant, her acceptance of his conduct seven years prior to the action may have been a bar to her cause. See, e. g., Garroway v. Garroway, 361 Pa. 464, 65 A.2d 414 (1949). In contrast, appellee testified only to remote acts and did not attempt to prove that her conduct was the result of appellant’s actions. Undoubtedly, appellant was not blameless. However, our law does not require that a party seeking a divorce be entirely free from all fault; the party must show that he or she did not evoke the conduct constituting indignities. Gray v. Gray, 220 Pa.Super. 143, 286 A.2d 684 (1971); Eifert v. Eifert, 219 Pa.Super. 373, 281 A.2d 657 (1971); Margolis v. Margolis, 201 Pa.Super. 129, 192 A.2d 228 (1963) The evidence does not support a conclusion that appellant was not the innocent and injured spouse.

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

WATKINS, President Judge, joins in this dissenting opinion.

. Act of May 2, 1929, P.L. 1237, § 10(f); as amended; 23 P.S. § 10(f).

. Supra, n. 1.

. See, e. g., Crawford v. Crawford, 64 Pa.Super. 30, 33, (1916): “What acts or course of conduct will amount to such indignities as will justify the court in making a decree of divorce, seems to be nowhere defined and perhaps they are incapable of specification or exact definition.”