Rorabaugh v. Rorabaugh

• Decision Date: 09 July 1982
• Citation: 302 Pa.Super. 1,448 A.2d 64
• Parties: John L. RORABAUGH, Appellant, v. Mary Elizabeth RORABAUGH a/k/a Betty B. Rorabaugh.
• Court: Pennsylvania Superior Court

448 A.2d 64

302 Pa.Super. 1

John L. RORABAUGH, Appellant, v. Mary Elizabeth RORABAUGH a/k/a Betty B. Rorabaugh.

Superior Court of Pennsylvania.

July 9, 1982

Argued June 14, 1979.

Louise G. Herr, Lancaster, for appellant.

John W. Burge, Lancaster, for appellee.

Before SPAETH, STRANAHAN and SUGERMAN, JJ. ^[*]

SUGERMAN Judge:

Appellant ("Husband") appeals from an order of the lower court sustaining Appellee's ("Wife") exceptions to the report of a Master in Divorce and denying Appellant a Decree in Divorce upon the ground of indignities to the person. ^[1] The Master recommended in her report that a Decree of Divorce be granted the husband, but the lower court refused to adopt such recommendation upon finding that husband was not an injured and innocent spouse by reason of indignities committed by him.

Husband contends on appeal that the lower court erred in failing to accord appropriate weight to the findings of the Master with regard to the credibility of the witnesses who appeared before the Master.

Before we address Husband's contention, we reiterate our scope of review, and as we stated in Brown v. Brown, 288 Pa.Super 354, 356, 431 A.2d 1085, 1086 (1981), (quoting from Schrock v Schrock, 241 Pa.Super. 53, 57-8, 359 A.2d 435, 437-8 (1976)):

" '... we must initially note that it is our duty, on appeal, to make an independent study of the record and to determine whether a legal cause of action for divorce exists. Barr v. Barr, 232 Pa.Super. 9, 331 A.2d 774 (1974); Arcure v. Arcure, 219 Pa.Super. 415, 281 A.2d 694 (1971). Moreover, while the master's findings of fact and recommendation that a divorce be granted are only advisory, where the issue is one of credibility and the master is the one who heard and observed the witness, his findings should be given the fullest consideration. Gehris v. Gehris, 233 Pa.Super. 144, 334 A.2d 753 (1975); Sells v. Sells, 228 Pa.Super. 331, 323 A.2d 20 (1974).' "

And see, Gross v. Gross, 281 Pa.Super. 45, 47, 421 A.2d 1139, 1140 (1980) (quoting from Keller v. Keller, 275 Pa.Super. 573, 419 A.2d 49 (1980)); Britton v. Britton, 280 Pa.Super. 87, 421 A.2d 417 (1980).

As the lower court found that Husband committed indignities as well, we should also again observe that no general rule can be formulated as to the precise nature of the conduct that will constitute indignities to the person in a given case, as such conclusion will depend upon the circumstances of that particular case. Brown v. Brown, supra at 356-7, 431 A.2d at 1086 (quoting from Schrock v. Schrock, supra at 58, 359 A.2d at 437-8, which in turn quoted from Sells v. Sells, 228 Pa.Super. 331, 333-34, 323 A.2d 20, 22 (1974)); Shuda v. Shuda, 283 Pa.Super. 253, 423 A.2d 1242 (1980); Keller v. Keller, supra; Rollman v. Rollman, 280 Pa.Super. 344, 421 A.2d 755 (1980).

As no strict test thus applies, the Supreme Court has delineated a framework of conduct within which we may determine whether indignities are present:

" 'Indignities 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' " McKrell v. McKrell, 352 Pa. 173, 180, 42 A.2d 609, 612 (1945) (quoting from Evans v. Evans, 152 Pa.Super. 257, 262, 31 A.2d 590, 592 (1943)).

The McKrell court also said:

"The essential feature of the offense of indignities to the person is that it must consist of a course of conduct or continued treatment which renders the condition of the innocent party intolerable and his or her life burdensome ... [citations omitted] ... What is meant by such indignities is left undefined in the law, and depends largely upon the circumstances of each case; they must consist of such a course of conduct as is humiliating, degrading and inconsistent with the position and relation as a spouse ..." McKrell v. McKrell, supra at 180, 42 A.2d at 612.

In addition to proving indignities, however, the moving party must also prove that he or she is the injured and innocent spouse. 23 P.S. § 10(f); Liebendorfer v. Liebendorfer, 289 Pa.Super. 339, 341, 433 A.2d 480, 481 (1981); Brown v. Brown, supra at 357, 431 A.2d at 1087; Gross v. Gross, supra at 48, 421 A.2d at 1140 (quoting from Keller v. Keller, supra at 576-7, 419 A.2d at 51); Rollman v. Rollman, supra at 349, 421 A.2d at 757; Dukmen v. Dukmen, 278 Pa.Super. 530, 534, 420 A.2d 667, 670 (1980); Moorhead v. Moorhead, 278 Pa.Super. 275, 278, 420 A.2d 537, 539 (1980); Mintz v. Mintz, 258 Pa.Super. 187, 193, 392 A.2d 747, 750 (1978). Thus it has been said that a finding that the moving party is the innocent and injured spouse "is a prerequisite for entitlement to a divorce based upon the grounds of indignities". Brown v. Brown, supra at 357, 431 A.2d at 1087.

With these familiar principles in mind, then, and within our broad scope of review, we examine the record to determine whether Husband proved that he is an innocent and injured spouse. We must also note that we are assisted in our task by a comprehensive and scholarly opinion filed pursuant to Pa.R.A.P. 1925(a) by Judge Eckman of the Court below.

From the record of the hearing before the Master, it appears that the parties were married on October 5, 1946, and eight children resulted from the union. At the hearing, Husband, then 59 years of age, testified that he was a biology teacher by profession, and held the position of professor of biology at Millersville State College during the seventeen years immediately preceeding the hearing. (R-7a). When examined upon the subject of indignities committed by Wife during the approximately 28 years of cohabitation, Husband testified that on one occasion in 1973, she removed all his clothing from the parties' farm house and put them in his pickup truck parked at the College, and when he unloaded the clothes at home, the Wife again placed them in the truck (R-10a-11a, 54a); that Wife never encouraged Husband in his endeavor to improve the parties' farm, never encouraged the children to work on the farm, and once did not permit their 8-year old son to assist Husband in planting corn (R-14a, 31a, 50a-51a); that on two occasions, the last of these occurring in 1976, Wife scratched Husband (R-18a-19a); that once, Wife told Husband several times that she would kill him (R-21a, 52a-53a); that on one occasion upon Husband's return from an auction, Wife struck him (R-52a-53a); that Wife never encouraged Husband in his work as a teacher (R-30a); and that once, within a few months of the hearing, during the course of an argument, Wife tore Husband's glasses off, and slammed them to the floor, bruising Husband's ear as she did (R-34a-35a). Husband presented no other witnesses or evidence in his case in chief.

At the hearing, Wife, then 51 years of age, testified that the parties' marriage began to disintegrate approximately ten years prior to the hearing when Husband became violent (R-67a); that on one occasion, Husband savagely kicked Wife at the base of her spine, resulting in her inability to assume a sitting position without a pillow for two days (R-67a-68a) ^[2] ; that Husband's violent conduct toward Wife and the children continued during the ten-year period and increased in intensity "almost ... beyond bearing" (R-68a-69a); that Husband's acts of violence toward Wife and the children were too numerous to enumerate (R-69a); that Husband once struck the parties' 6-year old son and their oldest daughter in the face for no apparent reason, causing both to bleed (R-70a-71a); that Husband constantly "screamed" at Wife and the children (R-71a); that the violence ceased only at or about the time Husband filed the instant complaint in divorce (R-71a); that Husband continually associated with his young, female laboratory assistant; that when Husband traveled to the South Pacific on sabbatical leave for a period of one year, he gave Wife only $1800.00 for the support of Wife and the children, forcing Wife to seek charity from the parties' church (R-77a-78a) ^[3] ; that approximately one year prior to the hearing, Husband refused to pay the telephone bill, resulting in a cessation of telephone service for a period of six months (R-85a); that when the children invited friends to the parties' home, Husband forced such friends to work and otherwise intentionally embarrassed them, and as a result, the children were unable to invite friends to the home (R-100a); that early in the marriage, Husband on several occasions pulled Wife down a flight of stairs by her hair and clothing (R-103a); that in May, 1973, Husband for no apparent reason, chased Wife down a road with a wooden board (R-107a-108a); that Wife intercepted love letters written to Husband by a woman whom Husband met while on sabbatical leave (R-115a); and that Wife placed Husband's clothing in his truck as the result of his constant association with his young laboratory assistant (R-110a-111a).

The parties' son John, Jr., twenty-nine years of age at the time of the hearing, testified on behalf of Wife that Husband has beaten and slapped Wife and pulled her hair "since I have a memory" (R-113a-129a); when asked how frequently Husband beat Wife, John, Jr. responded:

"A. I would say more than a hundred, probably in the thousands, I would say there have been months on end when it was a daily occurrence." (R-131a-132a, 150a);

that Husband beat John, Jr. and on occasion struck him with a board, once breaking John, Jr's. nose, (R-134a); that Husband dragged John, Jr. to his automobile and intentionally closed the door before John, Jr. could remove his hand, breaking a finger (R-134a-135a, 154a); that Husband beat John, Jr. with a baseball bat (R-138a); that Husband continually beat the...