Dwight P. Thompson, Philadelphia, for appellant.
Jenkins, Bennett & Jenkins, Bertram Bennett, Philadelphia, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.
[ 171 Pa. Super. Page 44]
This is an action in divorce brought by the wife. The case was referred to a master who, after hearings, recommended that plaintiff be granted a divorce on the ground of indignities. The court below rejected the recommendation of the master and dismissed the complaint. From the decree dismissing her complaint the plaintiff has appealed.
The parties to this action have been married twice, their first marriage having ended in divorce in January 1945. Two children were born of the marriage: Elizabeth Ann, born December 16, 1928, and Evelyn Nixon, born May 23, 1931. The defendant had been an alcoholic, but at some time between the divorce and June 1947 he stopped drinking entirely. Plaintiff testified that she heard 'through different sources and through
[ 171 Pa. Super. Page 45]
him [defendant] that he was not drinking, and he was willing to come back and be fatherly and kindly to the girls, and that he would make up for the things that he had done and said'. She remarried defendant on June 7, 1947 because 'I thought he was sincere and meant what he said'. The parties lived together until January 11, 1948, when the plaintiff left the marital habitation.
Plaintiff testified that three weeks after the second marriage: 'There was a sudden change in his whole manner. He just didn't talk, and he didn't seem interested, and he went to bed and closed the door. And if you asked him a question, he just grunted, and he was displeased, and his actions were -- well, they were just unfriendly and unsociable, and that is when it first started.' When later plaintiff was asked what defendant's attitude toward her was, she answered: 'Well, his whole attitude was -- it was unkind, and it was just almost -- well, he didn't notice you, if you know what I mean. He came into the house, and sometimes I didn't know he was in there. He just went upstairs and closed the door, and I went in and I said, 'Oh, are you home?' I didn't know that he was home. He just ignored you.' A specific incident related to demonstrate defendant's unsociability occurred on Christmas 1947. On this occasion after presents had been exchanged, defendant retired to his room and 'stayed there all day, and we didn't see him again until dinner time'. The defendant admits going to his room and suggests two explanations for doing so. He testified that it was a family custom to play Christmas records on Christmas morning and that his daughter Betty angered him when she insisted on replacing those records with some she had received from a friend as a gift. Defendant testified further that he may have gone to his room because he was tired after being up late on Christmas Eve.
[ 171 Pa. Super. Page 46]
Thus it would appear that plaintiff's principal complaint is that her husband was indifferent and unsociable. Such negative conduct does not amount to indignities unless carried to extremes, as in Com. ex rel. Whitney v. Whitney, 160 Pa. Super. 224, 50 A.2d 732, or in Clements v. Clements, 21 Pa.Dist. & Co. R. 661. Silence maintained for 12 years as in the Whitney case or for one year as in the Clements case may, of course, be some evidence from which an inference of settled hate and estrangement may be deduced. In this case only about 7 months elapsed between the date of the marriage and the final separation and the parties continued to have sexual relations until October 1947. There is no contention that the defendant maintained silence over any protracted period of time. The present case is more like Dyer v. Dyer, 166 Pa. Super. 520, at page 521, 72 A.2d 605, at page 606, in which case we stated: 'Libellant's principal complaint is that the respondent gave him 'silent treatment' when displeased with him, by refusing to talk with him for periods varying from a few hours to a number of days. However viewed, the negative conduct of the wife as disclosed by the testimony in this case does not charge her with a malevolent disposition nor with settled hatred of her husband.'
The evidence of affirmative acts of misconduct on the part of the defendant is as follows: On one occasion the plaintiff came home and wished to tell defendant where she had been and what she had been doing. She testified that he said, 'Oh, shut up. I am not interested in where you were.' On another occasion plaintiff, defendant and the two girls planned to go on a picnic. Before they were ready to go, however, defendant and his daughter Betty argued over some trivial matter and the plaintiff refused to attend the picnic. Defendant said ...