Armand R. Cingolani, Butler, John N. Gazetos, Butler, for appellant.
Luther C. Braham, Darrell L. Gregg, Galbreath, Braham & Gregg, Bulter, for appellee.
Before Hirt, Acting P. J., and Ross, Gunther, Wright, Woodside and Ervin, Jj.
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This is a divorce case in which the Master recommended the granting of a divorce a. v. m. to the husband on the ground of indignities, but the court refused to approve the report and to grant the divorce.
The parties were both 50 years of age at the time of the hearing. They have been married since 1924. Their only child died at the age of 24 in May 1951. Both are college graduates. The marriage was not a happy one, but our examination of the record convinces us that the plaintiff has not made out a case.
The appellant contends that the wife frequently objected to sexual relations and lacked the ardor he desired. But refusal to have sexual intercourse is not sufficient ground for a divorce. McCommons, Jr., v. McCommons, 1925, 85 Pa. Super. 323; Rausch v. Rausch, 1941, 146 Pa. Super. 342, 22 A.2d 221. It does not constitute such indignity to the person as warrants granting a divorce. Taylor v. Taylor, 1940, 142 Pa. Super. 441, 16 A.2d 651; James v. James, 1937, 126 Pa. Super. 479, 191 A. 191.
The weakness of appellant's argument can best be measured by quoting from his testimony: 'We were married after school on Friday * * * and Friday night in Cleveland she was very reluctant to enter into any relationship with me but finally did * * * and again (the
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next night) it was the same thing as far as her reluctance was concerned although she did allow it * * * the reluctance continued throughout our marriage * * * she would accept any loving or kisses or endearments up to the point where intimate relationship and then she would resist most of the time. After the daughter was born she decided she wanted another child, a boy, and even after deciding that our relationship didn't change very much other than trying to conceive * * * there was a miscarriage * * * she was about the same as before * * * she said I wasn't fit to be a father and she wouldn't have any more children to me * * * refused any relationship until I got so indignant and aggressive she would consent occasionally * * * There wasn't much use (of trying to correct matters) as far as the sexual relations after she said I wasn't a fit father. In fact most of my love for her had gone by that time. Ever since then I felt it was my duty to keep the home going for my daughter's sake.'
He said his wife was jealous. 'When I was working * * * she would check at the mill * * * call the main gate * * * this was embarrassing * * * but as far as any scenes, I don't recall of any * * * The jealousy after (social) gatherings was always there and the nagging, * * * digs and insinuations would always be there afterwards * * * I tried to avoid any appearance of even friendliness to any of the women * * * The embarrassment never came from her mentioning anything but more from looks. If anything would happen that would displease her I could tell the way she was looking and acting. It wasn't probably apparent to anybody there but after the party was over she would nag me.'
He complained that his wife's conduct prevented him from fully discharging his social obligations to his friends and business associates and in no way helped
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him to improve his position. The testimony concerning this and her social life generally gave even less support to the finding of an indignity than the other matters discussed.
The wife entered Torrance State Hospital in June 1943, for mental treatment and remained there until August 1944. In January 1950, she was committed to Torrance State Hospital again, and has remained there ever since.
The plaintiff testified that with the exception of the two times defendant was in the hospital, and a short while prior thereto, in ...