Sells v. Sells

• Decision Date: 21 June 1974
• Citation: 323 A.2d 20,228 Pa.Super. 331
• Parties: Robert M. SELLS, Appellant, v. Elizabeth Ann SELLS, Appellee.
• Court: Pennsylvania Superior Court

Page 20

323 A.2d 20

228 Pa.Super. 331

Robert M. SELLS, Appellant, v. Elizabeth Ann SELLS, Appellee.

Superior Court of Pennsylvania.

June 21, 1974.

CERCONE, Judge:

Husband, Robert M. Sells, appeals from an order of the Court of Common Pleas of Dauphin County, which overruled the findings of a Master and dismissed husband's complaint in divorce. Husband brought the action pursuant to Section 10 of the Divorce Law of 1929 ¹ claiming that the divorce should be granted on grounds of indignities to his person by his wife rendering his condition intolerable and life burdensome. ² It is the duty of this court, on appeal, to make an independent study of the evidence and determine whether a legal cause of action for divorce exists. Gray v. Gray, 220 Pa.Super. 143, 286 A.2d 684 (1971); Eifert v. Eifert, 219 Pa.Super. 373, 281 A.2d 657 (1971). While the Master's findings of fact and recommendations 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. Green v. Green, 182 Pa.Super. 287, 126 A.2d 477 (1956).

The husband and wife were married on June 14, 1952. The marriage was the second for both parties with the husband having a child by his previous marriage. Twelve years after their marriage the husband instituted an action in divorce. This 1964 action was discontinued, however, in September of 1965. Then, in 1966, the wife instituted an action for divorce a mensa et thoro and such a decree was granted. Subsequently in November of 1966 the parties reconciled and the decree a mensa et thoro was vacated. In 1970 the husband (appellant) commenced this action in Dauphin County. The wife contested the action.

Husband raises three questions for our determination on appeal:

1. Did the trial court abuse its discretion in overruling the report of the Master and dismissing husband's complaint in divorce?

2. Was the wife guilty of such indignities to the person of the husband as to render his condition intolerable and his life burdensome?

3. Is the husband an injured and innocent spouse?

After careful review of both the Master's report and court findings, we must agree with the husband that the trial court below erred in dismissing the action in that there was sufficient evidence from which to find a cause for indignities to the person of an innocent and injured spouse.

We turn first to the question of whether the wife was guilty of indignities. As we stated in Margolis v. Margolis, 201 Pa.Super. 129, 192 A.2d 228 (1963): 'No general rule can be formulated as to what constitutes indignities in a particular case; such matters depend on all the circumstances of a particular case . . .' With this general standard in mind an examination of husband's contentions, although admittedly disputed by the wife are supportive of a claim based on indignities. Among the complaints of the husband were that his wife pushed an icepick into his lip, kept two butcher knives under her sofa, threatened his life; refused to go places with him, drank alcoholic beverages and became unruly, consistently used abusive language, sold or destroyed several items of personal property which the husband purchased for the common household, refused to cook or wash for him over a long period of time, on several occasions stayed out very late at night until approximately 5:00 and 6:00 in the morning without telling husband where she had been and saying that it was none of his business, went to the company parking lot where the husband's car was parked and sawed the tires with a hacksaw, told husband that she didn't love him from the beginning and that she didn't know why she ever married him, told husband to leave their home and 'to get the hell out and stay the hell out,' and refused to have sexual relations with the husband and would call him obscene names when he requested such relations. Admittedly there is no strict test to determine the presence of indignities but certain activity has been held to be sufficient to establish sufficient indignities. In McKrell v. McKrell, 352 Pa. 173, 42 A.2d 609 (1945) the Supreme Court did point out certain conduct to which a court might look to see if indignities were 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.' The indignities of which husband complained fit within the McKrell definition.

There was also testimony that the wife believed that her husband was unfaithful. There was no substantiation of this charge by other testimony and nothing to lead the Master or trial judge to find it to...