Leonard A. Mazer, Pittsburgh, for appellant.
William J. Krzton and Esler W. Hays, Pittsburgh, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Gunther, and Wright, JJ.
[ 173 Pa. Super. Page 269]
In this divorce case the grounds alleged were cruel and barbarous treatment and indignities to the person. At the conclusion of the hearing before the lower court, plaintiff's counsel conceded that there was insufficient evidence of cruel and barbarous treatment. Judge Smart refused to grant a decree on the grounds of indignities to the person. Plaintiff has appealed from the dismissal of his complaint.
The interest of the Commonwealth in the preservation of the marriage status makes it an interested third party in every divorce proceeding. Bonomo v. Bonomo, 123 Pa. Super. 451, 187 A. 222. In order to warrant a decree plaintiff must establish compelling and imperious reasons, and the burden is upon him to prove his case by a preponderance of clear and satisfactory evidence. Orsuto v. Orsuto, 171 Pa. Super. 532, 91 A.2d 284.
The ground of indignities cannot be defined with exactness. We favor the following statement by Judge Reno in Trimbur v. Trimbur, 171 Pa. Super. 541, 91 A.2d 307, 309:
'An indignity to the person is an affront to the personality of another, a lack of reverence for the personality of one's spouse. It consists of various acts, so varied in their nature and impact that the courts have not undertaken to define the offense in more than general terms. Crawford v. Crawford, 64 Pa. Super. 30; Breene v. Breene, 76 Pa. Super. 568. But the offense is complete when a continued and persistent course of conduct demonstrates that the love and affection upon which the matrimonial status rests has been permanently replaced by hatred and estrangement. For then, when the foundation has collapsed the superstructure falls, and inevitably the married condition becomes intolerable and life is indeed a burden. This is the doctrine of all the cases.'
[ 173 Pa. Super. Page 270]
In an action for divorce on the ground of indignities, the burden is on the plaintiff to prove, not only that defendant by a course of conduct rendered plaintiff's condition intolerable and life burdensome, but also that plaintiff was the innocent and injured spouse. Wilson v. Wilson, 163 Pa. Super. 546, 63 A.2d 104. Where a divorce case is heard by a trial judge, without a jury, his judgment upon the credibility of the witnesses is entitled to the highest consideration in an appellate court. Handy v. Handy, 163 Pa. Super. 49, 60 A.2d 415. With these well settled legal principles in mind, we have proceeded to carefully review the testimony in compliance with that requirement. Bobst v. Bobst, 357 Pa. 441, 444, 54 A.2d 898.
Plaintiff, presently aged 36, and defendant, presently aged 34, were married on November 4, 1942. During their married life they lived at various places, the last of which was Glassmere, Pennsylvania. Two children were born, Kathleen and Ronald, now aged 10 and 6 respectively. Plaintiff asserts there was a separation in January, 1951. Defendant alleges she was abandoned in April of that year. To quote from his brief, appellant's case 'is based on the interference by the appellee's family, the vile language she used to the appellant in the presence of strangers and their children, her dealing in the black market, three attempts at abortion, and the issuance of a $4000.00 insurance policy to the appellee by a stranger to the appellant during his absence in the service'.
The testimony does not portray and undue family interference, nor is there any evidence that defendant dealt in the black market. Plaintiff's complaint in this regard is that he would come home on occasion and find whiskey and beer bottles on the porch as the result of parties at which 'black ...