McCaskey v. McCaskey

• Decision Date: 13 April 1978
• Citation: 253 Pa.Super. 360,385 A.2d 378
• Parties: William R. McCASKEY, Jr., Appellee, v. Patricia J. McCASKEY, Appellant.
• Court: Pennsylvania Superior Court

385 A.2d 378

253 Pa.Super. 360

William R. McCASKEY, Jr., Appellee, v. Patricia J. McCASKEY, Appellant.

Superior Court of Pennsylvania.

April 13, 1978

Argued Nov. 23, 1977.

John Edward Wall, Pittsburgh, for appellant.

G Entenmann, Pittsburgh, with him William J. Murray Pittsburgh, for appellee.

Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE PRICE, VAN der VOORT and SPAETH, JJ.

HOFFMAN Judge:

Appellant contends that the lower court erred in dismissing her exceptions to the master's report and in entering a decree of divorce a.v.m. ^[1] We affirm the lower court's decree.

On December 27, 1947, appellant-wife and appellee-husband were married in Pittsburgh, Pennsylvania. They have five children, ranging in age at the time of the hearing from 14 to 26. On October 10, 1975, appellee filed a complaint in divorce a.v.m. on the grounds of indignities to the person. The lower court appointed a master who conducted hearings on March 30, 1976, and on April 7, 1976. Appellee testified as follows: appellant consumed straight gin until her speech became slurred while with appellee and his business associates. Without provocation, appellant struck and insulted an employer of appellee. Appellant telephoned the wives of two of appellee's business associates, told them that appellee was a homosexual and intimated that he was currently involved in a homosexual affair with an employee of her husband's firm. ^[2] This conduct embarrassed and humiliated appellee. Appellee also testified that appellant consumed large quantities of alcohol in the family room of the home until she became unconscious; she refused to clean the home or to prepare his breakfast; and, except on infrequent occasions, appellant refused to engage in sexual intercourse. Appellant regularly abused appellee verbally in front of their children and friends by calling him a drunkard, homosexual, no damn good, an inadequate provider, and an adulterer. Appellant's conduct made appellee nervous and upset and his doctor prescribed librium tablets for him.

Appellee admitted that during a very emotionally stressful period 12 years earlier, he had engaged in a homosexual incident with his then 12 year old son, Bill, Jr. Both appellee and his son received psychiatric care after the event and the family remained together and worked out the problem. Bill, Jr. has forgiven his father. Following the parties' separation in February, 1974, appellee attempted a reconciliation but appellant's excessive drinking prevented a reunion.

Appellee called Cherry Greenberg, ^[3] the wife of one of appellee's co-workers, who corroborated appellee's testimony. She confirmed that appellant telephoned her to say that appellee is a homosexual. Appellee's sons both testified; appellee called Bill, Jr. and appellant called David. Both stated that appellant called appellee a homosexual in their presence and that appellant frequently became inebriated at home and slept in the family room.

Appellant presented a different version of the events of the marriage. She denied ever insulting appellee while with friends or business associates. She denied that she slept in the family room after passing out from drinking; instead, she asserted that appellee sometimes locked her out of the master bedroom. Appellant stated that she prepared breakfast for appellee, cleaned the house regularly, and entertained appellee's business guests. Appellant stated that she did not have a drinking problem and that she did not become intoxicated in front of appellee's business associates. Appellant accused appellee of insulting and belittling her in front of their friends. Appellant stated that her son Bill informed her about appellee's homosexual advances and that she was shocked and deeply hurt by the incident. She indicated that they were able to work through the problem and resolve the difficulty.

Appellant admitted calling appellee a homosexual and a drunkard in front of the children, accusing appellee of infidelity, and calling Ms. Greenberg and another wife of a business associate to discuss appellee's homosexual tendencies. She denied calling appellee's business associates.

The master concluded that appellee had proved a case of indignities to the person and therefore recommended that the court grant a divorce. ^[4] On March 17, 1977, the court, en banc, dismissed appellant's exceptions to the master's report and entered a decree of divorce a.v.m. This appeal followed.

Appellant first contends that the lower court erred in approving the master's finding that she demonstrated settled hate and estrangement toward appellee. More specifically, she alleges that the court and master erroneously relied upon appellant's post-separation conversation with Ms. Greenberg to establish the element of settled hate and estrangement.

We recently reiterated the legal guidelines controlling our review of this contention:

The law is clear that when a divorce matter is heard by a judge sitting without a 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. § 143 Divorce; 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)." Ryave v. Ryave, 249 Pa.Super. 78, 85, 375 A.2d 766, 770 (1977); Barton v. Barton, 248 Pa.Super. 278, 375 A.2d 96 (1977); Shacreaw v. Shacreaw, 248 Pa.Super. 223, 375 A.2d 68 (1977). However, we have frequently stated: "while the findings and recommendation of the master are only advisory, where the issue is one of credibility and the master is the one who heard and observed the witnesses, his findings should be given the fullest consideration. Schrock v. Schrock, 241 Pa.Super. 53, 359 A.2d 435 (1976); Gehris v. Gehris, 233 Pa.Super. 144, 334 A.2d 753 (1975)." DeBias v. DeBias, 245 Pa.Super. 266, 272, 369 A.2d 396, 399 (1976). Section 10(f) of the Pennsylvania Divorce Law, supra, provides inter alia that: ". . . (I)t shall be lawful for the innocent and injured spouse to obtain a divorce from the bond of matrimony, whenever it shall be judged, . . . that the other spouse: . . . (s)hall have offered such indignities to the person of the injured and innocent spouse, as to render his or her condition intolerable and life burdensome." "While our appellate courts have been reluctant to formulate a general definition of what constitutes 'indignities,' we have noted that indignities may consist of vulgarity, unmerited reproach, habitual contumely, studied neglect, intentional incivility, manifest disdain, abusive language, or malignant ridicule. Gehris v. Gehris, supra, 233 Pa.Super. at 147-48, 334 A.2d at 754-755. See also McKrell v. McKrell, 352 Pa. 173, 42 A.2d 609 (1945)." Hargrove v. Hargrove, 252 Pa.Super. 120, 381 A.2d 143, 148 (filed December 2, 1977). Moreover, "It has thus generally been determined that such conduct must constitute a course of behavior which is humiliating and degrading, inconsistent with the injured individual's position as a (spouse) making that condition intolerable and life a burden to (him or) her. A single act of indignity is not sufficient, but a course of treatment 'of such character as to render the condition of any (person) of ordinary sensibility and delicacy of feeling intolerable and . . . life burdensome will' present grounds for divorce. Commonwealth ex rel. Whitney v. Whitney, 160 Pa.Super. 224, 228, 50 A.2d 732, 734 (1947) (emphasis original). Such conduct is understood to manifest the spirit of malevolence, hate and estrangement which has come to replace natural love and affection in a marriage and is central to a charge of indignities. Barr v. Barr, supra, (232 Pa.Super. 9, 331 A.2d 774); Sells v. Sells, 228 Pa.Super. 331, 323 A.2d 20, supra. Steinke v. Steinke, 238 Pa.Super. 74, 78, 357 A.2d 674, 676 (1975). See also Schrock v. Schrock, 241 Pa.Super. 53, 359 A.2d 435 (1976)." Ryave, supra at 87, 375 A.2d at 771.

In the instant case, appellant repeatedly insulted and humiliated appellee in the presence of his business associates and their family. She initiated arguments while in public, she belittled him and his earning capacity in the presence of business associates. Appellant constantly accused appellee of being a drunkard, a homosexual and an adulterer in the presence of their children. Moreover, appellant admitted calling the wives of two of her husband's business associates, informing them of her husband's homosexual act and intimating a similar current proclivity on his part. Appellee's testimony was corroborated by the clear and concise testimony of Ms. Greenberg, as well as that of his sons, David and Bill. We believe, as did the master and the lower court, that the constant insults, provocations, and humiliations of appellee constitute a course of conduct which rendered appellee's condition intolerable and his life burdensome.

Neither the master nor the lower court relied upon appellant's phone calls to Ms. Greenberg as direct proof of indignities. Both accepted the conversation as evidence which shed light upon the behavior of the parties prior to the separation. See Hargrove v. Hargrove, supra; and Boyer v. Boyer, 163 Pa.Super. 520, 63 A.2d 495 (1957). We find the use of such testimony acceptable when admitted for such a limited purpose. Accordingly, the lower court correctly upheld the master in...