F. Lyman Windolph and Windolph & Johnstone, Lancaster, Paul M. Strack, Newark, N. J., for appellant.
Herbert S. Levy, Appel, Ranck, Levy & Appel, Lancaster, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross and Gunther, JJ.
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The parties were married in 1920. Twenty-nine years later, on July 14, 1949, the husband without warning left his wife in their home in North Plainfield,
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New Jersey. He had been transferred to Lancaster by his employer and he has lived there since the separation. In July, 1950, he brought this action in divorce, charging cruel and barbarous treatment, and indignities. The parties have one son, now adult, who lives with his mother. Both the master and the lower court found the charge of indignities sustained by plaintiff's proofs and a decree of divorce was entered on that ground alone. We are not unmindful of the confidence with which we are to view the findings of the master and yet we are in disagreement with him and with the lower court in some instances as to credibility and in others as to the significance of proven facts on which the plaintiff relies. Admittedly the charge of cruel and barbarous treatment has not been sustained and if we are to give effect to the rule, so often relaxed if not wholly ignored, that a divorce may not be granted save for imperious reasons, we must conclude that this plaintiff has not met the burden upon him of proving a course of conduct sufficient in law to constitute indignities. Plaintiff's testimony except as to two relatively unimportant incidents stands alone; it has been denied and contradicted by the wife in material respects resulting at best in no more than a doubtful balance of evidence. Esenwein v. Esenwein, 105 Pa. Super. 261, 161 A. 425, affirmed in 312 Pa. 77, 167 A. 350. Moreover, there is some corroboration of defendant in the testimony of her witnesses.
Since the marriage plaintiff has had a responsible position with the Sperry Gyroscope Company or one of its subsidiaries. In 1928 the parties moved to North Plainfield, New Jersey, where they made their home and where the defendant still lives with their son in a house built by plaintiff in 1940. Title to the property is in both parties by entireties. During the past 10 years plaintiff's business took him away from his
[ 173 Pa. Super. Page 63]
home much of the time. And in that period and until 1946 he had little control over the time he could spend with his family. In 1946, however, he was assigned by his employer to fixed employment in a subsidiary company on Long Island. From that time until the final separation in 1949 he lived alone in a rented room in Garden City near his work and returned only on weekends to his home in North Plainfield. The wife's conduct, of which he complains, in our view is that of a lonely woman, and since 1946, of a neglected wife. Plaintiff attempts to justify his failure to take the defendant with him to Long Island, beginning in 1946 on the ground that his employment there was but temporary although he never invited her to join him at any time during his term of employment there of more than two years. Even when home on Saturday and Sunday of each week, or on Sunday only, he spent much of his time on the golf course as a member of a foursome of enthusiasts who played the game at every opportunity.
The burden was on the plaintiff to sustain the charge of indignities by proof of a course of conduct. The fact that libellant has not overlooked any incident of their married life which tended to support the charge is not without significance. And the cumulative effect of his testimony as a whole is considerably diluted by the recital of incidents many of them trivial, extending back over a period of 26 years or more. For example, plaintiff complained of his wife's attitude and conduct toward their neighbors, and his relatives early in their married life. The fact that she was out of step with his mother and tactlessly may have offended his aunt in refusing proffered ...