Huston v. Huston

• Decision Date: 18 March 1938
• Docket Number: 71-1938
• Citation: 130 Pa.Super. 501,197 A. 774
• Parties: Huston v. Huston, Appellant
• Court: Pennsylvania Superior Court

197 A. 774

130 Pa.Super. 501

Huston v. Huston, Appellant

No. 71-1938

Superior Court of Pennsylvania

March 18, 1938

Argued November 18, 1937

Appeal from decree of C. P. Erie Co., Sept. T., 1935, No. 232, in case of Ray E. Huston v. Eva B. Huston.

Divorce proceeding. Before Waite, P. J., specially presiding.

The facts are stated in the opinion of the Superior Court.

Verdict for libellant. Decree of divorce entered. Respondent appealed.

Error assigned, among others, was refusal of judgment n. o. v.

Decree reversed and new trial directed.

Burton R. Laub, for appellant.

William W. Knox, with him Robert J. Firman, and T. J. Mahoney, for appellee.

Before Keller, P. J., Cunningham, Baldrige, Stadtfeld, Parker, James and Rhodes, JJ.

OPINION

Cunningham, J.

On July 1, 1935, Ray E. Huston instituted proceedings in the court below for an absolute divorce from his wife, Eva B. Huston under the provisions of "The Divorce Law" of May 2 1929, P. L. 1237. The libel was based upon sub-paragraphs (e) and (f) of paragraph 1 of section 10, 23 PS § 10. That paragraph provides: "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 [specified in the statute], that the other spouse . . . . (e) shall have, by cruel and barbarous treatment, endangered the life of the injured and innocent spouse; or (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." A jury trial in the court below, at which the trial judge submitted both grounds to the jury for its determination, resulted in a verdict in favor of the husband; the wife's motions for a new trial and for judgment n. o. v. were denied and she has appealed from the final decree entered upon the verdict.

We are all of opinion that the case must be retried because, (a) material facts bearing directly upon the good faith of the husband-appellee were not sufficiently investigated and developed, (b) the evidence did not warrant the submission to the jury of the charge of cruel and barbarous treatment, and, (c) the charge was not merely inadequate but erroneous in several particulars.

With us, marriage is an institution in the preservation of which the Commonwealth, itself, has such a vital interest that it is always the unnamed third party in every divorce proceeding -- a fact which seems to have been overlooked in this case. "Whether the marital contract shall be severed is the gravest of questions, not alone to the parties, but to the state, for the social structure rests upon it": Middleton v. Middleton, 187 Pa. 612, 615, 41 A. 291. A divorce may be granted only upon "clear proof of imperious reasons": Richards v. Richards, 37 Pa. 225, 228.

Ordinarily, upon an appeal from a decree in divorce we are required to consider the evidence de novo, pass upon its weight and upon the credibility of witnesses, and reach an independent conclusion upon the merits; but where there has been a jury trial the extent of our review is limited to a consideration of the same matters as are involved in disposing of an appeal from a judgment entered upon a verdict in an ordinary civil case: Shaw v. Shaw, 36 Pa.Super. 122; Kurniker v. Kurniker, 94 Pa.Super. 257; King v. King, 113 Pa.Super. 285, 173 A. 432; and Rinoldo v. Rinoldo, 125 Pa.Super. 323, 325, 189 A. 566.

Although we may not consider the credibility of witnesses or the weight of the evidence, it is our duty to determine whether this appellee introduced sufficient evidence upon either branch of his case to justify the trial judge in submitting the issues thereunder to the jury, and to inquire whether the law has been properly applied to the facts which a jury could reasonably find. In reviewing this record we have followed the familiar rule that the testimony must be read in the light most favorable to the appellee and where there is a conflict between his testimony and that of the appellant his credibility is to be assumed.

When the testimony is considered in the manner indicated it is at once apparent that the libel in this case was filed under circumstances which not only justified but demanded the most thorough scrutiny and investigation in order to determine whether the proceedings were instituted by the appellee in good faith. "Courts ought never to sever the marriage contract but where the application is made in sincerity and truth, for the causes set forth, and no other, and fully sustained by the testimony": Middleton v. Middleton, supra, citing Angier v. Angier, 63 Pa. 450.

In referring to the uncontroverted facts which we think were not fully developed at the trial or given the attention the interests of the Commonwealth demanded, we lay aside for the present all the testimony by which the appellee sought to sustain his charges of cruel and barbarous treatment and indignities.

The parties (each of whom was approximately fifty-five years of age at the time of trial and had been previously married) were married to each other on June 17, 1909, in the City of Erie, and lived together, with the exception of several temporary separations, for more than twenty-five years. Appellee was a steam engineer and appellant during practically all of their married life conducted a rooming house. On July 4, 1934, appellee left the common domicile and went to Sacramento, California. This separation followed accusations made by each against the other of undue intimacy with persons occupying rooms from time to time in their home. Appellant charged appellee specifically with adultery with a Mrs. Greene, a widow, who rented an apartment from them, but left Erie approximately one year before he went to California. We are not now concerned with the truth or falsity of these accusations; adultery is not pleaded in the libel as a ground for divorce.

Appellee admitted on cross-examination that shortly after reaching California he visited Mrs. Greene who was then at Auburn, some thirty-eight miles from Sacramento. On October 13, 1934, he applied for, and secured by correspondence and without leaving Sacramento, a so-called decree of divorce from a Mexican court, purporting to divorce him from appellant. One week later he went through a marriage ceremony with Mrs. Greene in the State of Nevada. In January, 1935, appellee and Mrs. Greene returned to Conneautville, Pa., for a week or ten days and then went to Buffalo, New York. During the following month he was arrested at the instance of appellant, brought back to Erie, and an order of support for the benefit of appellant was made against him by the quarter sessions of Erie County. The record does not disclose how or where he has been living since that time, but he testified Mrs. Greene was living at "1129 Buffalo Road" at the time of the trial, presumably an address in the City of Buffalo. The present libel, dated May 31, 1935, was filed on July 1st of that year.

One of the questions naturally raised by appellant was whether appellee had "been a bona fide resident in this Commonwealth at least one whole year immediately previous to the filing" of his libel -- a prerequisite under section 16 of the statute to the exercise of jurisdiction in this case by the court below. The trial judge submitted that issue to the jury and requested a specific answer thereto. The language of the charge was: "Now, even if the causes that would entitle him to a divorce on their merits were such that a divorce should be granted, yet if he were not a resident of Pennsylvania during the year preceding that, he would not be entitled to a divorce. But when a person has gained a residence in any place the continuation of that residence is largely a matter of intention. If this libellant went away with the intention of still maintaining his home in Pennsylvania and with the intention of returning here for the purpose of making his home, he then would still retain his residence in Pennsylvania. I am not quite sure of all the evidence on that point in this case. I still think that that may be a question for the court and not for the jury, but I am going to submit that question to you with the other questions in this case, and I am going to ask you to make a separate finding with respect to that. That matter can be afterwards refused, and notwithstanding what you may find relative to the residence of the libellant I am going to ask you to pass upon the other issues in this case in a separate finding." The reply of the jury was, "The jury agree that libellant has never given up his residence in Pennsylvania." Their general verdict was "for the libellant."

The only other comment upon the suspicious circumstances to which we have referred was the following: "If there were no unusual relations, and if the relation of this libellant with Mrs. Greene was merely a casual acquaintance, as his testimony would seem to indicate, it might seem a little unusual about her going to California when he did. He says they did not go together, that she came out there in an automobile. I think he said he was some four or six weeks getting out there after he left Erie. He stopped in Cleveland and got out there in August and some time during that month he discovered that Mrs. Greene was in a nearby town. I think he said he had written a card to her there. But in some way he did learn she was there and proceeded to see her, and some time later he got a Mexican divorce and shortly after that he was married to this woman and they returned later to Pennsylvania and he says he came back to Erie and other places in Pennsylvania looking for work, and not finding work went on to Buffalo. You heard what was done relative to that."

In our opinion, available...