Gehris v. Gehris
| Citation | 334 A.2d 753,233 Pa.Super. 144 |
| Parties | James GEHRIS v. Nicole GEHRIS, Appellant. |
| Decision Date | 31 March 1975 |
| Court | Superior Court of Pennsylvania |
Edelman, Schaeffer, Saylor, Readinger & Poore Arthur Ed. Saylor, Reading, for appellant.
Donald R. Butler, Montrose, James F. Mundy, Philadelphia, for appellee.
Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE PRICE, VAN der VOORT and SPAETH, JJ.
Appellant the defendant in a divorce action in the court below, claims that her conduct did not constitute 'indignities' sufficient to render the appellee-husband's life 'intolerable' and 'burdensome.' Further, she contends that the husband was not an 'injured and innocent spouse.'
In September 1972, the husband filed a complaint for a divorce a.v.m. in the Court of Common Pleas for Susquehanna County against the appellant wherein he alleged indignities. The case was heard on June 6, 1973, by Judge Donald O'Malley, sitting without a jury. The court granted the husband a decree of divorce a.v.m. on November 13, 1973. The following are the facts as presented by the court below.
James and Nicole Gehris, parties to the action below, were married in France in 1960 during the husband's tour of duty with the Air Force. The couple came to the United States in 1961 and resided in Illinois at Scott Air Force base, where they began to experience marital difficulties. In 1964, the Gehrises moved to Carbondale, Illinois, where the husband attended college in an effort to improve his job opportunities. The marriage at that point was marred by the wife's frequent complaints that his attendance at school was worthless, that he should be earning money instead of attending school, and that he was not making enough money in his part-time job. After the husband completed college, he took a job as a rehabilitation counselor for the State of Illinois. Despite the husband's willingness to improve his job status and to work at part-time jobs in addition to his regular job, the wife was never satisfied with their financial status. Although she complained that she was never able to take a vacation, the wife, a French national, actually managed to take three trips to France during the marriage. She complained that Illinois was too flat; the husband responded by moving the family to Montrose, Pennsylvania, in 1967. Even after the family relocated in Pennsylvania, the wife continued to complain about living conditions. She consistently rejected her husband's suggestions to meet people socially, to join organizations, and to become an American citizen.
The court found further that the wife abruptly left a Christmas party to the embarrassment of her husband; that she cashed a check for $400.00 from a joint account, thereby overdrawing the account and requiring the husband to take out a loan to cover the overdraft; that the wife destroyed a number of her husband's record albums and cut up part of his slide collection; that the husband, as a result of the tension in the marital abode, became nervous and ill and was unable to work effectively in his job as a rehabilitation counselor.
The wife alleged a trial that her husband was having an affair with another woman during their marriage and that he had told her that he wanted a divorce in order to marry the other woman. The husband, however, testified that he had started 'keeping company' with the woman involved, a fellow worker at his place of employment, six months after he had left his wife. He denied any amorous involvement with her prior to the separation from his wife.
The hearing judge gave considerable weight to the husband's testimony concerning his affair. Further, the court stated that the husband's contentions concerning the wife's consent complaints about living conditions and the husband's lack of earning capacity were uncontested.
In order to quality for a divorce a.v.m., a party must meet the standards set forth in the Pennsylvania Divorce Law. [1] Specifically at issue in the present case is § 10(f) which provides Inter alia that: Courts have had difficulty in laying down a general rule to determine what constitutes 'indignities.' It has been held, however, that 'indignities may consist of vulgarity, unmerited reproof, habitual contumely, studied neglect, intentional incivility, manifest disdain, abusive language, malignant ridicule and any other plain manifestation of settled hate and estrangement.' Gerenbeck v. Gerenbeck, 199 Pa.Super. 410, 416, 186 A.2d 49 (1962); see also, Fodor v. Fodor, 221 Pa.Super. 321, 292 A.2d 485 (1972).
The law is clear that when a divorce matter is heard by a judge sitting without jury, this Court must make a complete and independent review of the record of the proceedings below. Eifert v. Eifert, 219 Pa.Super. 373, 281 A.2d 657 (1971). The Court's review extends even to matters of credibility. Del Vecchio v. Del Vecchio, 169 Pa.Super. 617, 84 A.2d 261 (1951). The Court must 'examin(e) the record to discover inherent improbabilities in the stories of the witnesses, inconsistencies and contradictions, bias and interest, opposition to incontrovertible physical facts, patent falsehoods. . . .' 12 P.L.E. Divorce, § 143; see also, Faszczewski v. Faszczewski, 182 Pa.Super. 295, 126 A.2d 773 (1956); Rankin v. Rankin, 181 Pa.Super. 414, 124 A.2d 639 (1956). The 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. See, Rankin, supra; Uhlinger v. Uhlinger, 169 Pa.Super. 574, 83 A.2d 423 (1951); Partleton v. Partleton, 169 Pa.Super. 485, 82 A.2d 684 (1951); Spence v. Spence, 167 Pa.Super. 248, 74 A.2d 495 (1950).
In the instant case, the only evidence presented was oral testimony by the two litigants. Several events that were relied on by the trial judge to find that indignities existed rested directly on credibility. For example, the husband testified that the wife had overdrawn their checking account in an attempt to embarrass him. The wife admitted cashing the check but gave a different account of her motivation. The trial judge cites her action as part of his finding of indignities; therefore, he believed the husband's account of the incident and rejected that of the wife. Another finding relevant to the judge's grant of the divorce to the husband was that the wife unreasonably refused to become a United States citizen. The wife's brief contests the idea that her refusal to do so was intended to humiliate and embarrass her husband; '(s)uch a conclusion . . . simply does not follow; one's reason for not relinquishing one's foreign citizenship may be many and varied . . ..' Faced merely with the record in which the wife asserts that her refusal 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. Other evidence can be analyzed in the same light: for example, the hearing judge decided that the wife was not sincere when she testified that she still loved her husband and desired to continue the marital relationship.
In addition to arguing that the husband did not prove indignities, the wife contends that her husband was not an injured and innocent party as required under the statute. At issue is whether the husband was carrying on a meretricious relationship with a fellow employee before or after the couple's separation. If before, then the husband cannot qualify as an innocent party. Cf. Orsuto v. Orsuto, 171 Pa.Super. 532, 91 A.2d 284 (1952). If the adultery occurred after the right to the divorce had accrued, it is not grounds to deny the divorce Berezin v. Berezin, 186 Pa.Super. 340, 344, 142 A.2d 741 (1958), citing extensive authority; see also, Kowalchick...
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