Jayne v. Jayne

• Decision Date: 20 July 1995
• Citation: 663 A.2d 169,443 Pa.Super. 664
• Parties: LaDonna C. JAYNE v. Robert F. JAYNE, Appellant. LaDonna C. JAYNE, Appellant, v. Robert F. JAYNE.
• Court: Pennsylvania Superior Court

Page 169

663 A.2d 169

443 Pa.Super. 664

LaDonna C. JAYNE v. Robert F. JAYNE, Appellant.

LaDonna C. JAYNE, Appellant, v. Robert F. JAYNE.

Superior Court of Pennsylvania.

Argued April 6, 1995.

Filed July 20, 1995.

Ray DePaola, Towanda, for Robert F. Jayne.

Gerald A. Kinchy, Sayre, for LaDonna C. Jayne.

Before CIRILLO, JOHNSON and SAYLOR, JJ.

CIRILLO, Judge:

Appellant Robert F. Jayne (Husband) appeals, and Ladonna C. Jayne (Wife) cross-appeals, from an order in the Court of Common Pleas of Wyoming County entering a final decree in divorce, ordering equitable distribution of the marital property, requiring Husband to pay alimony, and denying both parties' exceptions to the Master's report. We affirm in part, and reverse in part.

The parties were married on June 17, 1967. Two children were born of the marriage, one of whom is a minor. ¹ On August 19, 1991, Wife filed a complaint in divorce on the grounds of irretrievable breakdown and indignities. Wife also petitioned the court for equitable distribution of the marital assets, alimony, spousal support, custody, child support, alimony pendente lite, counsel fees and costs. ² Husband responded to Wife's complaint by joining in the request for divorce on the grounds of irretrievable breakdown. The parties separated on August 28, 1991, and Husband left the marital home.

The trial court adopted the recommendations of the Master, Selyne K. Youngclaus, Esquire. The Master's recommendations included, inter alia, a decree in divorce on the ground of indignities. Both parties filed exceptions to the Master's recommendations. These exceptions were denied by the trial court. On appeal, Husband raises seven issues for our consideration:

(1) Did the trial court commit error in granting Wife a divorce on the grounds of indignities?

(2) Did the trial court commit error in awarding alimony to Wife in light of the 60/40 division of property in favor of Wife?

(3) Did the trial court commit error in failing to credit Husband for payments made by him, with the exception of interest payments, for loans relating to the car wash between the time of the parties' separation and the hearing, despite the fact that, in support actions, the income from the car wash was attributable to Husband with no consideration being given to these payments?

(4) Did the trial court commit error in failing to take into consideration a $6,000.00 loan incurred by Husband during the parties' separation which was used to keep the car wash operating?

(5) Did the trial court commit error in failing to credit Husband for payments made to Penelec and Commonwealth Telephone for debts incurred by Wife during the period of separation?

(6) Did the trial court commit error in failing to credit Wife with the receipt of $3,500.00 in personal property in her possession at the time of the equitable distribution?

(7) Did the trial court commit error in awarding the Corvette to Wife without recognizing the value of the automobile?

On cross-appeal, Wife questions the amount, as well as the duration, of the trial court's award of alimony. Wife contends that the trial court erred in limiting alimony to her in the amount of $200.00 per month for only twenty-four months.

Initially, Husband claims that the trial court committed error when it granted Wife a divorce on grounds of indignities. Our standard of review in cases involving divorce decrees is well-settled:

[I]t is the responsibility of this court to make a de novo evaluation of the record of the proceedings and to decide independently of the master and lower court whether a legal cause of action in divorce exists. The Master's recommendation, therefore, is advisory only. The exception to this general rule is that in determining issues of credibility the Master's findings must be given the fullest consideration for it was the Master who observed and heard the testimony and demeanor of various witnesses.

Schuback v. Schuback, 412 Pa.Super. 233, 235, 603 A.2d 194, 195-96 (1992) (quoting Dukmen v. Dukmen, 278 Pa.Super. 530, 534, 420 A.2d 667, 670 (1980)) (citations omitted). Thus, we must review the record and determine, independently, whether a legal cause of action in divorce exists.

In her complaint, Wife sought a divorce based upon no-fault as well as fault grounds. Specifically, Wife requested that a decree of divorce be entered based on irretrievable breakdown and also based on indignities.

Section 3301(d) of the Divorce Code provides for a no-fault divorce if the parties have lived separate and apart for the statutory period and the marriage is irretrievably broken. Irretrievable breakdown is set forth in the statute as follows:

(d) Irretrievable breakdown.--

(1) The court may grant a divorce where a complaint has been filed alleging that the marriage is irretrievably broken and an affidavit has been filed alleging that the parties have lived separate and apart for a period of at least two years and that the marriage is irretrievably broken and the defendant either:

(i) Does not deny the allegations set forth in the affidavit.

(ii) Denies one or more of the allegations set forth in the affidavit but, after notice and hearing, the court determines that the parties have lived separate and apart for a period of at least two years and that the marriage is irretrievably broken.

* * * * * *

23 Pa.C.S. § 3301(d). Section 3301(a)(6), one of the fault grounds for divorce, describes the ground for divorce based on indignities:

(a) Fault--The court may grant a divorce to the innocent and injured spouse whenever it is judged that the other spouse has:

(6) Offered such indignities to the innocent and injured spouse as to render that spouse's condition intolerable and life burdensome.

23 Pa.C.S.A. § 3301(a)(6). The trial court granted a divorce pursuant to Section 3301(a)(6) based on its findings of fact and conclusions of law that Husband committed indignities toward Wife and that Wife was an innocent and injured spouse.

This court has stated that indignities, as a fault ground for divorce, may consist of "vulgarity, unmerited reproach, habitual contumely, studied neglect, intentional incivility, manifest disdain, abusive language, malignant ridicule, and every other plain manifestation of settled hate and estrangement." Dukmen, 278 Pa.Super. at 534, 420 A.2d at 669-70 (citations omitted). Also, "there are two requirements for a divorce based on indignities: (1) the existence of indignities and (2) the direction of them to an innocent and injured spouse." Schuback, 412 Pa.Super. at 236, 603 A.2d at 196.

Wife testified at the Master's hearing that she believed Husband was engaged in an extra-marital affair. Also, the Master took judicial notice of the Protection From Abuse proceedings which were commenced post-separation based upon an incident which occurred shortly after Husband removed himself from the marital home. Based upon this evidence, the Master concluded that "[t]he facts testified to by [Wife] are sufficient to establish the averments in the complaint setting forth a cause of action on the ground of indignities." We disagree.

Initially, we point out that, in an action for divorce based upon indignities, "[t]he burden is on the plaintiff to demonstrate a course of conduct on the part of the defendant spouse which is humiliating, degrading, and inconsistent with the innocent and injured spouse's position rendering his[/her] condition intolerable and his[/her] life burdensome." Jones v. Jones, 311 Pa.Super. 407, 411-12, 457 A.2d 951, 953 (1983) (citation omitted). While Wife testified at the Master's hearing that she had confronted Husband concerning the alleged affair, she also testified that Husband denied these allegations by stating that he had only been friends with the other woman. Wife offered no additional testimony supporting her allegation that, prior to the filing of her complaint in divorce, Husband was engaged in an extra-marital affair. While "[i]t is true that a spouse's relationship with a member of the opposite sex, other than his or her spouse, may constitute an indignity even when the evidence is insufficient to sustain a charge of adultery[,] ... evidence of friendship alone is not sufficient to prove indignities; there must be additional evidence." Narbesky v. Narbesky, 255 Pa.Super. 48, 54, 386 A.2d 129, 132 (1978).

In addition, we have held that the marital misconduct which must be considered with regard to a divorce based upon indignities is that misconduct which occurred prior to the right to divorce accruing. Schuback, 412 Pa.Super. at 236, 603 A.2d [443 Pa.Super. 673] at 196. As a result, any misconduct in which Husband may have engaged after the separation is not to be considered unless it goes to support misconduct occurring prior to the accrual of the right to divorce. Bonawitz v. Bonawitz, 246 Pa.Super. 257, 262, 369 A.2d 1310, 1312 (1976). In other words, Husband's conduct after Wife's filing of the complaint for divorce should not be considered in deciding the sufficiency of the allegations in that complaint for a divorce based on indignities unless it is related to or supports similar conduct prior to the accrual of the right to divorce. See McCaskey v. McCaskey, 253 Pa.Super. 360, 385 A.2d 378 (1978) (holding that proof of indignities occurring after parties' separation was admissible as evidence which shed light upon the behavior of the parties prior to separation); Lee v. Lee, 185 Pa.Super. 252, 137 A.2d 827 (1958) (holding that the conduct of the parties after separation is relevant for the purpose of shedding light upon their behavior prior to the separation). Accordingly, Husband's post-separation conduct concerning an alleged extra-marital affair, as well as the post-separation Protection From Abuse Proceedings, should not have been considered by the Master since the record does not support that they shed light upon the behavior of the parties prior to their separation.

Further, the Master found that...