David C. Stephenson, James J. Davis, Jr., and Pepper, Bodine, Stokes & Hamilton, all of Philadelphia, for appellant.
Earl G. Harrison and Schnader, Harrison, Segal & Lewis, all of Philadelphia, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.
[ 170 Pa. Super. Page 548]
Plaintiff was a Naval Aviation Cadet when he married the defendant in 1939. He then was 28 and she 23 years of age. He has made service in the Navy his career and now has the rank of Commander. For about six years following the marriage, the parties lived near Philadelphia while plaintiff was stationed at the Philadelphia Navy Yard. In September 1944 he was transferred to the U.S.S. Antietam which was being fitted out at the Newport Naval Station, and following a shakedown cruise of eight weeks, left on the ship for the South Pacific in May 1945. In March 1946 plaintiff at his wife's request arranged for her transportation from Haverford where they had last lived in Pennsylvania to Carmel, California. Two months later, on
[ 170 Pa. Super. Page 549]
a rumor that she contemplated breaking up the marriage, he secured emergency leave and flew to California where he saw the defendant on May 26, 1946. Their relations were strained. Plaintiff was successful in securing a transfer to Washington, D. C., and left Carmel on June 29, 1946. He has been stationed in Washington, but for a year and six months prior to bringing this action his domicile has been in Philadelphia. In his complaint he charged defendant with indignities as ground for divorce, and also with desertion persisted in since May 30, 1946. The case was heard by Judge Sloane of the court below and on findings that the plaintiff had not sustained either charge, the complaint was dismissed. The decree will be affirmed.
We accept plaintiff's testimony as credible against the denials of the defendant and her attempts to explain away her acts of misconduct on which plaintiff relied to establish the charge of indignities. But even with that advantage his proofs fall short of sustaining the charge. In general it may be accepted as established that beginning with defendant's effort, soon after the marriage, to correct some of plaintiff's habits and mannerisms in the home which she found annoying, she developed a habitually querulous attitude toward him, manifested by open criticism of his manners and deportment and at times in public to his embarrassment; she complained also about his late hours on war work and was angered at his refusal to tell her the nature or the scope of his employment with the Navy although she knew it to be confidential; she handled all of plaintiff's income and mismanaged his financial affairs by running up large accounts at stores with the result that on at least two occasions he was brought before his commanding officer to explain why bills had not been paid; defendant neglected her household
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duties and frequently failed to prepare necessary meals; after plaintiff went to sea in 1945 she failed to save money from plaintiff's pay allotted to her, for the payment of his Federal income taxes with the result that he was several thousand dollars in arrears on the date of the separation; of a Sunday afternoon defendant occasionally ran the vacuum cleaner although she knew it interfered with plaintiff's enjoyment of the symphony hour on the radio; defendant was responsible for cessation of sexual relations after January 1945. Other complaints are too trivial for comment with this one exception: much of the unhappiness in the home arose from the fact that plaintiff has been sterile from the inception of the marriage. Defendant wanted a child above all else and frequently chided plaintiff, accusing him of failing to take the treatments which had been prescribed for him to accomplish a cure. He had consulted a number of medical men and had followed their advice with reasonable fidelity as to the treatments prescribed, without beneficial result. In our view it is established in this record that plaintiff is incurably sterile. Defendant's criticisms of plaintiff on that ground therefore were unwarranted, although in our view excusable, to some extent at least, under the circumstances.
From a consideration of plaintiff's testimony even in its most favorable aspects, we are in agreement with Judge Sloane that although there was nagging, quarreling, and other irritating conduct on the part of the defendant yet the cumulative effect of the incidents complained of has failed to establish a clear and satisfactory case as to indignities. There is insufficient proof of a humiliating course of conduct manifesting settled hate and estrangement, rendering ...