Appeal, No. 188, Jan. T., 1950, from decree of Superior Court, Feb. T., 1950, No. 5, affirming decree of Court of Common Pleas of Lackawanna County, Nov. T., 1945, No. 116, in case of Dean H. Phipps v. Alethea D. Phipps. Drcree affirmed; reargument refused September 24, 1951.
Thomas D. McBride, with him Milton J. Kolansky and David Berger, for appellant.
Will Leach, with him Forrest J. Mervine, Leach & Lenahan, for appellee.
Before Drew, C.j., Stern, Stearne, Jones, Bell, Ladner and Chidsey, JJ.
OPINION BY MR. JUSTICE JONES
In this case, the libellant sued for divorce on the grounds of cruel and barbarous treatment and indignities to his person. At trial, he abandoned the cruel and barbarous treatment charge and rested his case on indignities in connection wherewith he proved, inter alia, an act of adultery on the part of the respondent. The learned trial judge entered a decree of divorce which, on appeal, the Superior Court unanimously affirmed (one judge being absent): see Phipps v. Phipps, 165 Pa. Superior Ct. 622. We granted an allocatur primarily because on an apparent conflict between the decision in the instant case and the decision in Allen v. Allen, 165 Pa. Superior Ct. 379, with respect to whether evidence of an act of adultery is relevant and material to an issue of indignities to the person of the libellant. If such evidence is admissible in the situation indicated, then a secondary question follows as to whether the fact of adultery must have been known to the libellant prior to the institution of the divorce action in order to render such evidence competent at trial.
In Allen v. Allen the Superior Court had held that testimony of the respondent's adultery "was not admissible on the charge of indignities and should have been disregarded even though in evidence without objection." With such evidence thus excluded, the court was of the opinion that the libellant had not made out a case of indignities and reversed the decree in divorce which the trial court had granted. However, two members of the court, while concurring in the result reached by the majority, disagreed that the testimony
of the respondent's adulterous act was inadmissible and pointed out (p. 383) that the Superior Court had consistently held "that a wife's affair with another man, in itself, may constitute an indignity, and that conduct by a husband with respect to other women, although not sufficient to support a charge of adultery may be considered as a form of personal indignity to the wife rendering her condition intolerable and life burdensome", citing, inter alia, Blansett v. Blansett, 162 Pa. Superior Ct. 45, 48, 56 A.2d 341, where it was said, -- "That [a wife's affair with another man] [constitutes] an indignity is abundantly clear...."
Why, then, may not evidence of adultery, which, as the opinion in the Allen case concedes, "is an indignity in its gravest form", be relevant and material proof on an issue of indignities. The only reason contra advanced in the Allen case is that, by statute, adultery is made a separate and distinct ground for divorce and is of such gravity that, when established, prohibition of the marriage of the offending spouse to the paramour follows as a matter of legislative direction. Note was also made of the fact that a statute requires that the paramour be named in the libel and, as correspondent, be given notice of the charge and an opportunity to defend. But, neither the fact that adultery alone, when pleaded and proven, will justify a divorce nor the statutory provisions peculiar to such an action operate to deprive the adulterous conduct of its evidentiary value as relevant and material proof of an indignity. Cruel and barbarous treatment is also a separate ground for divorce, but evidence of the respondent's physical violence toward and threats against the life of the libellant (viz., cruel and barbarous treatment) is relevant and material to, and may be used to sustain, a charge of indignities: see Zonies v. Zonies, 151 Pa. Superior Ct. 317, 321-322, 30 A.2d 193; Sarbiewski v. Sarbiewski, 127 Pa. Superior Ct. 463, 468, 193 A. 91;
and Sleight v. Sleight, 119 Pa. Superior Ct. 300, 303, 181 A. 69. The greater offense is thus material evidence of the lesser charge.
We hold, therefore, that evidence of a respondent's adultery is admissible on a charge of indignities. How far such evidence goes in helping to establish a course of conduct, requisite to sustaining a charge of indignities, is for the fact-finder to appraise subject, of course, to appellate review for legal sufficiency of the evidence. But, the evidence is admissible, nonetheless, even though it falls short of supporting a charge of indignities. What was said in Allen v. Allen, supra, in presently pertinent connection, was considerably retracted, if not entirely overruled, six months later by the Superior Court's opinion in the instant case where, as we have already mentioned, evidence of an act of adultery by the respondent was held to be admissible on a charge of indignities.The Superior Court there correctly said (p. 625), -- "Counsel for respondent... argue that you cannot establish indignities by proving adultery. If staying together in the same room at the hotel at Stroudsburg had been the only evidence of misconduct on the part of respondent, we would readily agree; but it was not." The unanimity of the Superior Court in the instant case is peculiarly significant in view of the separate concurrence in the Allen case on the admissibility of evidence of the respondent's adultery.
As stated in Martin v. Martin, 154 Pa. Superior Ct. 313, 317, 35 A.2d 546, -- "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 [citing cases]." Obviously, one act of adultery is insufficient to sustain a charge of indignities even though the offense, of itself, is adequate ground for divorce on an
appropriate charge. Other misconduct of the respondent, as testified to, tending to prove indignities but which might have been extenuated as mere indiscretions or discounted as the imaginings of an overly suspicious or jealous spouse assumes its true import when pondered against the background of the respondent's deliberate and flagrant unfaithfulness to the libellant. Thus, the evidence as a whole becomes capable of constituting, as a matter of law, indignities to the person of the libellant rendering his condition intolerable and his life burdensome which is to be determined objectively.
Nor was the respondent's adulterous act any the less admissible because the libellant did not learn of it until after he had commenced his action in divorce, if such indeed by the actual fact. The importance of the evidence of adultery lies in its capacity as an aid to the fact-finder in appraising the respondent's conduct in general with respect to her husband and her treatment of him. Its admissibility, in the circumstances here present, does not depend upon whether the libellant knew of it before the separation. Of course, if he did not then know of it, it was not a direct indignity such as where the innocent party comes upon his offending spouse flagrante delicto. In Holbrook v. Holbrook, 160 Pa. Superior Ct. 129, 131, 150 A.2d 709, it was expressly recognized that "Testimony as to respondent's conduct after the parties' separation is relevant for the purpose of shedding light upon respondent's behavior prior to the separation. [Citing] Hewitt v. Hewitt, 136 Pa. ...