Britton v. Britton
| Decision Date | 25 July 1980 |
| Citation | 421 A.2d 417,280 Pa.Super. 87 |
| Parties | Lillian A. BRITTON v. Harry Robert BRITTON, Jr., Appellant. |
| Court | Pennsylvania Superior Court |
Argued Nov. 15, 1979.
Harry R. Britton, Jr., appellant, in pro per.
James D. McDonald Jr., Erie, for appellee.
Before SPAETH, HOFFMAN and VAN der VOORT, JJ.
This is an appeal from an order granting a divorce on the grounds of indignities and desertion. [1]
On February 24, 1978, the wife filed a complaint for divorce, alleging indignities and desertion. The lower court appointed a master, who held a hearing on April 20. On April 26, the master filed a report recommending that the wife be granted a divorce on both of the alleged grounds. On November 28, the lower court dismissed the husband's exceptions to the master's report, stating that "(t)he Court cannot conceive of a woman who more richly deserves a divorce than Lillian A. Britton." On December 22, the lower court entered a final decree of divorce, and the husband brought this appeal.
In Keller v. Keller, 275 Pa.Super. 573, 419 A.2d 49, (1980), this court stated:
On an appeal from a divorce decree, we are obliged to make an independent review of the record. Barr v. Barr, 232 Pa.Super. 9, 331 A.2d 774 (1974); Nacrelli v. Nacrelli, 288 Pa. 1, 136 A. 228 (1927). However, "(a) report of a master who has had the advantage of seeing and hearing the parties and their witnesses, is, nevertheless, to be given fullest consideration." Vautier v. Vautier, 138 Pa.Super. 366, 367, 11 A.2d 207, 208 (1939). See also Lyons v. Lyons, 116 Pa.Super. 385, 176 A. 792 (1935).
To make out a charge of indignities, three elements must be proved: (1) a course of conduct that, although varying according to the circumstances of each case, must in every case (2) be inconsistent with the marital relationship, and (3) render the condition of the innocent party intolerable and his or her life burdensome. Steinke v. Steinke, 238 Pa.Super. 74, 85, 357 A.2d 674, 680-81 (1976) (SPAETH, J concurring) (collecting cases). Although no general rule can be formulated as to what constitutes indignities in a particular case, the matter being one that depends upon all the circumstances of the particular case and the position in life, character, and disposition of the parties, Margolis v. Margolis, 201 Pa.Super. 129, 133, 192 A.2d 228, 230 (1963), our cases hold that proof of "vulgarities unmerited reproach, habitual contumely, studied neglect, intentional incivility, manifest disdain, abusive language, or malignant ridicule" may be sufficient to make out a case for divorce based on indignities. Barton v. Barton, 248 Pa.Super. 278, 283, 375 A.2d 96, 98 (1977). See also Bristol v. Baranyi, 259 Pa.Super. 418, 393 A.2d 897 (1978). Moreover, several of these factors "may coalesce to justify a finding of indignities, although taken separately, no single incident or factor would be sufficient." Barton v. Barton, supra, 248 Pa.Super. at 283, 375 A.3d at 98. Finally, it should be noted that ... the burden of proving indignities was on the husband as the party seeking the divorce, Mintz v. Mintz, 258 Pa.Super. 187, 392 A.2d 747 (1978); Taddigs v. Taddigs, 200 Pa.Super. 29, 186 A.2d 455 (1962), and that the husband was required to prove that he was an innocent and injured spouse, Mintz v. Mintz, supra.
In Partleton v. Partleton, 169 Pa.Super. 485, 82 A.2d 684 (1954), this court stated:
Desertion which entitles an innocent and injured spouse to a divorce is 'an actual abandonment of matrimonial cohabitation, with an intent to desert, willfully and maliciously persisted in, without cause for two years.' Ingersoll v. Ingersoll, 49 Pa. 249, 251; Grace v. Grace, 165 Pa.Super. 336, 338, 68 A.2d 197, see § 10, "The Divorce Law of May 2, 1929," P.L. 1237, as amended, 23 P.S. 10. Guilty intent is manifested where, without cause or consent, either party withdraws from the residence of the other; if the desertion is intentional it is willful; if willful, it is malicious. Dougherty v. Dougherty, 166 Pa.Super. 219, 70 A.2d 411; Grace v. Grace, supra; Hedderson v. Hedderson, 35 Pa.Super. 629, 631.
In Santarsiero v. Santarsiero, 231 Pa.Super. 286, 331 A.2d 868, 871 (1974) (SPAETH, J., dissenting), it was stated:
In a desertion case the burden is initially on the plaintiff to prove the defendant's 'absence from the habitation ... for ... two years ...' Wagner v. Wagner, 223 Pa.Super. 241, 299 A.2d 45, 47 (1972); Ziengenfus v. Ziegenfus, 159 Pa.Super. 521, 522, 49 A.2d 275 (1946) ....
When the plaintiff has proved absence from the habitation the burden shifts to the defendant 'to establish by clear and convincing evidence that (1) her separation from him was not desertion because plaintiff had consented or encouraged it; or (2) her separation was not wilful and malicious desertion but was justified by his unlawful conduct which amounted to grounds for divorce.' Wagner v. Wagner, supra, 223 Pa.Super. at 244, 299 A.2d at 47. See also Zimmerman v. Zimmerman, 428 Pa. 118, 123, 236 A.2d 785, 788 (1968); MacDonnell v. MacDonnell, 190 Pa.Super. 397, 400, 154 A.2d 267, 268 (1959); Ewing v. Ewing, 140 Pa.Super. 448, 449, 14 A.2d 149, 150 (1940).
Finally, in Zimmerman v. Zimmerman, supra 428 Pa. at 123, 236 A.2d at 788, the Supreme Court stated:
(Quoting Gordon v. Gordon, 208 Pa. 186, 187, 57 A. 525 (1904).)
We do not propose to summarize the entire record. However, among the master's findings were the following.
The parties were married on May 20, 1950, in Franklin Center, Pennsylvania. From the outset, the marriage was troubled. The parties frequently argued about financial matters. The wife wanted new furniture for their house, but the husband thought her unreasonable. On one occasion, the husband forced the wife to return certain groceries because he thought her purchase of them unnecessary. In 1964, the husband refinanced the mortgage on the parties' home in order to finance the purchase of ten commercial "spots" on local television. The husband used the spots to discuss religious matters and "how to buy a used car." The wife thought they could not afford the spots, but agreed to them because she was afraid that otherwise the husband would scold her.
Throughout the marriage, the husband accused his wife of having committed indiscretions with other men prior to their marriage. The husband would "rant and rave" and "make life miserable" whenever he brought this subject up. On one occasion, he threw a dish at her, and on another occasion, he paddled her. Also, the husband continually "scolded" his wife. He criticized her for being late to church, although she explained that she had to get their three children prepared to go. He did not like her associating with other people. He did not permit her to join the Parent-Teacher Association at the childrens' school.
From 1950 until 1966, the husband was employed by General Electric Company in Erie, Pennsylvania. In March 1966 the husband began a one-man strike against General Electric to force the company to accept a union to which the husband belonged. The husband picketed General Electric for fifteen months, during which time the family had great difficulty meeting its financial obligations. In 1967 the husband ended his strike against General Electric and took the company to court. Unable to get relief, he picketed the court and was jailed for disturbing the peace. He refused to leave the jail, believing his presence there to be an act of legitimate civil disobedience. In October 1967 the wife petitioned the court to have the husband committed to Warren State Hospital, Warren, Pennsylvania. The husband was initially committed for a 48 hour period, later amended to a 30 to 90 day period, and finally, to an indefinite period.
While committed, the husband wrote the wife several letters criticizing her for having a job and accusing her of "abandoning her children," "mother delinquency," "juvenile delinquency," and "inflation." The husband would cite passages from the Bible to the effect that women were "keepers at home" and "the woman's place" was in the home. The husband was permitted brief visits to the parties' home. On one of these, he had a severe argument with the wife about her job and her alleged infidelities. In September 1970 the husband ran away from the Warren State Hospital and fled to New York City. The wife did not see her husband until the master's hearing, almost eight years later.
Between 1970 and 1978, the husband lived in New York City and Washington, D.C. When he first arrived in New York City, he stowed away on a ship, only to be returned to the city. When his wife learned of this, she had him committed to Bellevue Hospital, but after one month, for unknown reasons, he was discharged. He subsequently went to Washington, where he picketed the White House with signs stating, "We Want Wives That Obey," "Sign Here For Husband's Liberation," and "Husband's Suffrage." The media coverage of this picketing caused the wife considerable embarrassment. In 1974, the husband wrote the wife, proposing reconciliation, but only if she would quit her job. Other similar offers of reconciliation followed. The wife refused all of them, however, because she believed the condition on them was unreasonable.
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