Steinke v. Steinke

• Decision Date: 28 October 1975
• Citation: 238 Pa.Super. 74,357 A.2d 674
• Parties: , 82 A.L.R.3d 705 Cecilia Marie STEINKE, Appellant, v. Robert O. STEINKE, Jr.
• Court: Pennsylvania Superior Court

Page 674

357 A.2d 674

238 Pa.Super. 74, 82 A.L.R.3d 705

Cecilia Marie STEINKE, Appellant, v. Robert O. STEINKE, Jr.

Superior Court of Pennsylvania.

Oct. 28, 1975.

Concurring Opinion Feb. 5, 1976.

Stanton C. Kelton, III, Cornwells Heights, for appellant.

Robert O. Steinke, Jr., for appellee.

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

JACOBS, Judge:

This is an appeal from the decree entered below dismissing plaintiff-appellant's complaint for divorce a.v.m. Because we find that appellant's evidence did establish grounds for divorce due to indignities offered by the husband, Robert Steinke, to the appellant, we reverse.

The record discloses the following facts. The parties met in May, 1971, when Robert was 20 and Cecilia was only 16. In August of that year they eloped to Maryland and were married on August 4. Neither Cecilia nor her mother, who testified in her behalf, noticed anything unusual about Robert at that time. However, shortly after the marriage, Robert informed appellant that he never wanted to grow up and he started wearing diapers and rubber pants. On occasion he would request appellant to change the soiled diapers, which she refused to do. Appellant testified that she was shocked by this behavior and found it impossible to discuss the situation with Robert. Their families and friends apparently knew nothing about it.

In June, 1972, appellant's daughter was born and Robert stopped wearing diapers. A few months later he expressed a desire to dress as a woman, and thereafter would wear women's clothes around the house. He obtained some information by mail regarding transsexualism which detailed the treatments and surgical possibilities available to effect a complete change in sex. As the idea of becoming a woman grew on him, he began to visit doctors and psychiatrists with the view of developing himself as a woman. To this end he began taking hormones.

For a while appellant maintained hope that Robert would overcome this phase but as it persisted she resolved to seek outside help. With the advice of her mother, she took her husband to see a psychiatrist who would help him overcome his desire to change his sex. After a few visits, however, Robert decided he was receiving no help and discontinued the treatment in favor of that provided by the doctors who were guiding him in a six month program leading up to the anticipated sex change surgery. He began to assume the total identity and appearance of a woman, with the help of the hormone pills, at work and in public as well as at home. For the first time the situation became known to the friends of the couple.

Robert testified that at this time, when he was assuming all feminine attributes possible, short of surgery, he felt that the whole experiment was a trial period during which he sought to resolve his inner conflict, and that the ultimate operation was not a certainty. Nevertheless, after three months of the six month treatment had elapsed, appellant demanded that he leave their home. On February 10, 1974, he moved into a separate apartment, continuing to live as a woman to the extent of calling himself 'Karen' and appearing at a support hearing in June of 1974 in women's attire. In July of that year when the doctors informed him that he was not a fit subject for the operation, Robert had already reached that conclusion on his own. He stopped the treatments and, feeling himself cured, he resumed living as a man.

On July, 1974, about the time Robert was abandoning the desire to become a woman, appellant filed her complaint in divorce alleging indignities. A hearing was held before the court in October at which Robert appeared without counsel, and very ably contested the divorce in his own behalf. In December he sent a letter to the judge who heard the divorce withdrawing his contest. The lower court found that sufficient grounds for divorce were not established because the husband's conduct stemmed from psychiatric disorder.

In reviewing this case, we are required to make an independent study of the record. See Dougherty v. Dougherty, 235 Pa.Super. 122, 339 A.2d 81 (1975); Barr v. Barr, 232 Pa.Super. 9, 331 A.2d 774 (1974). In matters of credibility, however, the lower court's judgment is entitled to great weight as it is the lower court which has had the opportunity to observe the witnesses, their demeanor and inflection, and is thus in a better position than the reviewing court to settle the questions on that issue. Dougherty v. Dougherty, supra; Sells v. Sells, 228 Pa.Super. 331, 323 A.2d 20 (1974).

The Act of May 2, 1929, P.L. 1237, § 10(1)(f), As amended, 23 P.S. § 10(1)(f) allows the innocent and injured partner to a marriage to obtain a divorce from the bond of matrimony where 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.' Indignities have not been defined by the law, but rather conduct alleged to be productive of indignities has been evaluated together with the peculiar circumstances of each case. See Boyer v. Boyer, 183 Pa.Super. 260, 130 A.2d 265 (1957); McLaughlin v. McLaughlin, 170 Pa.Super. 516, 87 A.2d 101 (1952). Appellate courts have attempted to draw general guidelines thought to be instructive in shaping the offense of indignities. 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 wife, making that condition intolerable and life a burden to her. A single act of indignity is not sufficient, but a course of treatment 'of such character as to render the condition of any woman of Ordinary sensibility and Delicacy of feeling intolerable and her 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; Sells v. Sells, supra.

That the appellant-wife in the present case has come to find life with her husband intolerable and burdensome does not indicate unusual sensitivity or extraordinary delicacy on her part. It is certainly to be anticipated that a reasonable woman might react to her husband adopting not only the clothing, but the full physical appearance of a woman, by becoming shocked and repelled. This Court has recognized that unnatural sexual conduct or excessive and unusual sexual demands represent indignities making a spouse's condition intolerable and life burdensome. Where such conduct can be established, we have held that divorce is appropriately granted. See Crissman v. Crissman, 220 Pa.Super. 387, 281 A.2d 719 (1971) (homosexual conduct of husband grounds fordivorce); Diehl v. Diehl, 188 Pa.Super. 491, 149 A.2d 133 (1959) (excessive sexual demands of wife grounds for divorce); Krug v. Krug, 22 Pa.Super. 572 (1903) (unusual sexual demands of husband grounds for divorce). The record in the present case details facts which make relief for appellant's unhappy condition particularly appropriate: she married her husband at the very young and immature age of 16, without the advice or blessing of her family, when they had known each other only a few months, and she was unaware of her husband's predilections. Furthermore, the conduct of the husband is of such a nature as to cause revulsion in a young and inexperienced woman, tending to create an atmosphere where affection sours and loathing grows in its place.

In addition, the husband's conduct indicates a lack of concern for his wife's well-being and neglect of his responsibility to her and the child. The appellant testified that it was humiliating to her that her husband would appear in front of her friends and associates, as well as in public places, in feminine attire. A course of conduct which is humiliating and degrading to a woman has been held to provide evidence sufficient in itself to support the allegation of indignities. DiFabio v. DiFabio, 200 Pa.Super. 381, 188 A.2d 838 (1963); Simons v. Simons, 196 Pa.Super. 650, 176 A.2d 105 (1961); Boyer v. Boyer, supra. Also the testimony of both parties substantiates the finding that the husband's behavior naturally provoked a strained and distant relationship wherein communication and other intimacies ceased. Persistent neglect of one spouse by the other has been found to manifest indignities. Priest v. Priest, 162 Pa.Super. 232, 57 A.2d 437 (1948); Commonwealth ex rel. Whitney v. Whitney, supra. Finally, appellant testified that she was concerned for her young daughter who exhibited some questionable social behavior, possibly due to the influence of the husband. Whereas this alone would not support an allegation of indignities, concern for the wholesome development of the child provides additional support for the appellant's decision to seek a dissolution of her marriage. This Court has recognized that an indignity to a child can sometimes be an indignity to the parent and the mistreatment of children can be grounds for divorce. Crissman v. Crissman, supra; Walker v. Walker, 109 Pa.Super. 539, 167 A. 446 (1933); Cavazza v. Cavazza, 102 Pa.Super. 312, 156 A. 629 (1931).

The lower court, however, held that grounds for divorce were not established due to the finding that the husband was acting under the compulsion of a psychiatric disorder. It is true that conduct springing from mental ill health cannot constitute indignities because it must be regarded as unintentional and lacking in the spirit of hate and estrangement which is the heart of the charge of indignities. Barr v. Barr, supra; Boggs v. Boggs, 221 Pa.Super. 22, 289 A.2d 479 (1972); Fawcett v. Fawcett, 159 Pa.Super....